UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
--------------------------
DATE OF REPORT: April 12, 2002
--------------------------
FIRST MERCHANTS CORPORATION
(Exact name of registrant as specified in its charter)
--------------------------
INDIANA 0-17071 35-1544218
(State or other (Commission (IRS Employer
jurisdiction of incorporation) File Number) Identification No.)
200 East Jackson Street
P.O. Box 792
Muncie, Indiana 47305-2814
(Address of principal executive offices, including zip code)
(317) 747-1500
(Registrant's telephone number, including area code)
Page 1 of 3 Pages
Exhibit Index on Page 4
Items 1-4. Not Applicable.
Item 5. Other Events and Regulation FD Disclosure.
On April 12, 2002, First Merchants Corporation (the "Company") and First
Merchants Capital Trust I (the "Trust") entered into an Underwriting Agreement
with Stifel, Nicolaus & Company, Incorporated and RBC Dain Rauscher Inc. for
themselves and as co-representatives of the several underwriters named in
Schedule I thereto (the "Underwriting Agreement"). On April 17, 2002 and
pursuant to the Underwriting Agreement, the Trust issued 1,850,000 8.75%
Cumulative Trust Preferred Securities (liquidation amount $25 per Preferred
Security) (the "Preferred Securities") with an aggregate liquidation value of
$46,250,000. The proceeds from the sale of the Preferred Securities were
invested by the Trust in the Company's 8.75% Junior Subordinated Debentures due
June 30, 2032 (the "Debentures"). The proceeds from the issuance of the
Debentures will be used by the Company to fund a portion of the cash
consideration payable to the shareholders of Lafayette Bancorporation as part of
the Company's April 1, 2002 acquisition of Lafayette Bank and Trust Company.
Item 6. Not Applicable.
Item 7. Financial Statements and Exhibits.
(a) Financial Statements of Business Acquired.
Not Applicable
(b) Pro Forma Financial Information.
Not Applicable
(c) Exhibits.
1.1 Underwriting Agreement dated April 12, 2002
4.1 Certificate of Trust of First Merchants Capital Trust I dated
December 12, 2001
4.2 Amended and Restated Trust Agreement of First Merchants Capital
Trust I dated April 17, 2002
4.3 Agreement as to Expenses and Liabilities dated April 17, 2002
4.4 Cumulative Trust Preferred Security Certificate
4.5 Preferred Securities Guarantee Agreement dated April 17, 2002
4.6 Indenture dated April 17, 2002
4.7 First Supplemental Indenture dated April 17, 2002
4.8 8.75% Junior Subordinated Debenture due June 30, 2032
Items 8 and 9. Not Applicable.
Page 2 of 3 Pages
Exhibit Index on Page 4
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
DATE: April 19, 2002.
FIRST MERCHANTS CORPORATION
By: /s/ Larry R. Helms
-------------------------
Larry R. Helms,
Senior Vice President and
General Counsel
Page 3 of 3 Pages
Exhibit Index on Page 4
EXHIBIT INDEX
1.1 Underwriting Agreement dated April 12, 2002
4.1 Certificate of Trust of First Merchants Capital Trust I dated December 12,
2001
4.2 Amended and Restated Trust Agreement of First Merchants Capital Trust I
dated April 17, 2002
4.3 Agreement as to Expenses and Liabilities dated April 17, 2002
4.4 Cumulative Trust Preferred Security Certificate
4.5 Preferred Securities Guarantee Agreement dated April 17, 2002
4.6 Indenture dated April 17, 2002
4.7 First Supplemental Indenture dated April 17, 2002
4.8 8.75% Junior Subordinated Debenture due June 30, 2032
EXHIBIT 1.1
1,850,000 Preferred Securities
First Merchants Capital Trust I
8.75% Cumulative Trust Preferred Securities
(Liquidation Amount of $25 per Preferred Security)
UNDERWRITING AGREEMENT
April 12, 2002
STIFEL, NICOLAUS & COMPANY, INCORPORATED
RBC Dain Rauscher Inc.
as Co-representatives of the Several Underwriters
named in Schedule I hereto
c/o Stifel Nicolaus & Company, Incorporated
501 North Broadway, 9th Floor
St. Louis, Missouri 63102
Dear Sirs:
First Merchants Corporation, an Indiana corporation (the "Company") and its
financing subsidiary, First Merchants Capital Trust I, a Delaware business trust
(the "Trust," and hereinafter together with the Company, the "Offerors"),
propose that the Trust issue and sell to the several underwriters listed on
Schedule I hereto (the "Underwriters"), pursuant to the terms of this Agreement,
1,850,000 of the Trust's 8.75% Cumulative Trust Preferred Securities, with a
liquidation amount of $25 per preferred security (the "Preferred Securities"),
to be issued under the Trust Agreement (as hereinafter defined), the terms of
which are more fully described in the Prospectus (as hereinafter defined). The
aforementioned 1,850,000 Preferred Securities to be sold to the Underwriters are
herein called the "Firm Preferred Securities." Solely for the purpose of
covering over-allotments in the sale of the Firm Preferred Securities, the
Offerors further propose that the Trust issue and sell to the Underwriters, at
their option, up to an additional 277,500 Preferred Securities (the "Option
Preferred Securities") upon exercise of the over-allotment option granted in
Section 1 hereof. The Firm Preferred Securities and any Option Preferred
Securities are herein collectively referred to as the "Designated Preferred
Securities." Stifel, Nicolaus & Company, Incorporated and RBC Dain Rauscher Inc.
are acting as co-representatives of the Underwriters and in such capacity are
sometimes herein referred to as the "Representatives."
The Offerors hereby confirm as follows their agreement with each of the
Underwriters in connection with the proposed purchase of the Designated
Preferred Securities.
1. Sale, Purchase and Delivery of Designated Preferred Securities,
Description of Designated Preferred Securities.
On the basis of the representations, warranties and agreements herein
contained, and subject to the terms and conditions herein set forth, the
Offerors hereby agree that the Trust shall issue and sell to each of the
Underwriters and each of the Underwriters agrees, severally and not jointly, to
purchase from the Trust, at a purchase price of $25 per Preferred Security (the
"Purchase Price"), the respective number of Firm Preferred Securities set forth
opposite the name of such Underwriter in Schedule I hereto. Because the proceeds
from the sale of the Firm Preferred Securities will be used to purchase from the
Company its Debentures (as hereinafter defined and as described in the
Prospectus),
the Company shall pay to each Underwriter a commission of $0.9375 per Firm
Preferred Security purchased (the "Firm Preferred Securities Commission"). The
Representatives may by notice to the Company amend Schedule I to add, eliminate
or substitute names set forth therein (other than to eliminate the names of the
Representatives) and to amend the number of Firm Preferred Securities to be
purchased by any firm or corporation listed thereon, provided that the total
number of Firm Preferred Securities listed on Schedule I shall equal 1,850,000.
In addition, on the basis of the representations, warranties and agreements
herein contained and subject to the terms and conditions herein set forth, the
Trust hereby grants to the Underwriters, severally and not jointly, an option to
purchase all or any portion of the 277,500 Option Preferred Securities, and upon
the exercise of such option in accordance with this Section 1, the Offerors
hereby agree that the Trust shall issue and sell to the Underwriters, severally
and not jointly, all or any portion of the Option Preferred Securities at the
same Purchase Price per share paid for the Firm Preferred Securities. If any
Option Preferred Securities are to be purchased, each Underwriter, severally and
not jointly, agrees to purchase from the Trust that proportion (subject to
adjustment as you may determine to avoid fractional shares) of the number of
Option Preferred Securities to be purchased that the number of Firm Preferred
Securities set forth opposite the name of such Underwriter in Schedule I hereto
(or such number increased as set forth in Section 9 hereof) bears to 1,850,000.
Because the proceeds from the sale of the Option Preferred Securities will be
used to purchase from the Company its Debentures, the Company shall pay to the
Underwriters a commission of $0.9375 per Option Preferred Security for each
Option Preferred Security purchased (the "Option Preferred Securities
Commission"). The option hereby granted (the "Option") shall expire 30 days
after the date upon which the Registration Statement (as hereinafter defined)
becomes effective and may be exercised only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Firm Preferred Securities. The Option may be exercised in
whole or in part at any time (but not more than once) by you giving notice
(confirmed in writing) to the Trust setting forth the number of Option Preferred
Securities as to which the Underwriters are exercising the Option and the time,
date and place for payment and delivery of the Global Securities (as hereafter
defined) for such Option Preferred Securities. Such time and date of payment and
delivery for the Option Preferred Securities (the "Option Closing Date") shall
be determined by you, but shall not be earlier than two nor later than five full
business days after the exercise of such Option, nor in any event prior to the
Closing Date (as hereinafter defined). The Option Closing Date may be the same
as the Closing Date.
Payment of the Purchase Price and the Firm Preferred Securities Commission
and delivery of the Global Securities (as hereinafter defined) for the Firm
Preferred Securities shall be made at the offices of Stifel, Nicolaus & Company,
Incorporated, 501 North Broadway, 9th Floor, St. Louis, Missouri 63102, or such
other place as shall be agreed to by you and the Offerors, at 10:00 a.m., St.
Louis time, on the third (or, if permitted by Rule 15c6-1(c) of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), not later than 12:00 p.m. on
the fourth) full business day following the date of this Agreement (the "Closing
Date"), or unless postponed in accordance with the provisions of Section 9. The
Trust shall deliver or cause to be delivered to you for the account of the
Underwriters against payment to or upon the order of the Trust of the Purchase
Price in federal or other immediately available funds, the Firm Preferred
Securities in the form of one or more permanent global securities in definitive
form (the "Global Securities") deposited with the Property Trustee (as
identified below) as custodian for the Depository Trust Company ("DTC") and
registered in the name of Cede & Co., as nominee for DTC. Interests in any
permanent Global Securities will be held only in book-entry form. If the
Underwriters exercise the option to purchase any or all of the Option Preferred
Securities, payment of the Purchase Price and Option Preferred Securities
Commission for such Option Preferred Securities shall be made on the Option
Closing Date at Stifel, Nicolaus & Company, Incorporated's offices, or at such
other place as the Offerors and you shall determine. Upon delivery, the Option
Preferred Securities shall be in the form of one or more Global Securities
registered in the name of Cede & Co., as nominee of DTC and the Global
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Securities for such Option Securities shall be delivered to the Property Trustee
as custodian for DTC. Such payments shall be made to an account designated by
the Trust by wire transfer of same day funds, in the amount of the Purchase
Price therefor, against delivery by or on behalf of the Trust to you for the
respective accounts of the several Underwriters of one or more Global
Certificates for the Designated Preferred Securities to be purchased by the
Underwriters.
Time shall be of the essence, and delivery of the Global Securities for the
Designated Preferred Securities at the time and place specified pursuant to this
Agreement is a further condition of the obligations of each Underwriter
hereunder.
(b) The Offerors propose that the Trust issue the Designated Preferred
Securities pursuant to an Amended and Restated Trust Agreement among Wachovia
Trust Company, National Association, as Delaware Trustee and Property Trustee,
the Administrative Trustees named therein (collectively, the "Trustees"), and
the Company, in substantially the form heretofore delivered to the Underwriters,
said Agreement being hereinafter referred to as the "Trust Agreement." In
connection with the issuance of the Designated Preferred Securities, the Company
proposes (i) to issue its 8.75% Subordinated Debentures due 2032 (the
"Debentures") pursuant to an Indenture, to be dated as of April 17, 2002,
between the Company and Wachovia Trust Company, National Association, as
indenture trustee (the "Base Indenture"), and a supplement thereto, to be dated
as of April 17, 2002 (the "Supplemental Indenture," and together with the Base
Indenture and any other amendments or supplements thereto, the "Indenture"), and
(ii) to guarantee certain payments on the Designated Preferred Securities
pursuant to a Preferred Securities Guarantee Agreement between the Company and
Wachovia Trust Company, National Association, as guarantee trustee (the
"Guarantee"), to the extent described therein.
(c) The Company entered into an Agreement of Reorganization and Merger
dated October 14, 2001 (the "Merger Agreement") with Lafayette Bancorporation,
an Indiana corporation ("Lafayette"), pursuant to which, on April 1, 2002 (the
"Merger Effective Date"), Lafayette merged with and into the Company with the
Company continuing as the surviving entity (the "Merger"). As used herein,
unless the context clearly requires otherwise, the term "Company" shall include
Lafayette. The entire proceeds from the sale of the Debentures will be used by
the Company to pay for a portion of the cash consideration to be paid in the
Merger and related costs and expenses. In connection with the Merger, the
Company filed with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-4 (File No. 333-75750) which constitutes a
proxy statement for each of the Company and Lafayette relating to the approval
of the Merger by the shareholders of each of the Company and Lafayette and which
constitutes a prospectus of the Company relating to the issuance to shareholders
of Lafayette of shares of capital stock of the Company as consideration for the
Merger for those shareholders of Lafayette who are entitled to receive shares of
the Company pursuant to the Merger Agreement. Such registration statement,
including the exhibits, appendices and schedules thereto, if any, at the time it
became effective is in this Agreement called the "Merger Proxy/Registration
Statement." For purposes of this Agreement, all references to the Merger
Proxy/Registration Statement or any amendment or supplement thereto shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering Analysis and Retrieval ("EDGAR") system.
(d) As used herein, the following terms shall have the following
meanings:
"Base Prospectus" shall mean the base prospectus referred to in Section
2(ii) hereof contained in the Registration Statement.
3
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or becomes effective.
"Preliminary Prospectus" shall mean any preliminary prospectus supplement
to the Base Prospectus which describes the Designated Preferred Securities and
the offering thereof and is used prior to filing of the Prospectus, together
with the Base Prospectus.
"Prospectus" shall mean the prospectus supplement relating to the
Designated Preferred Securities that was first filed pursuant to Rule 424(b)
after the date hereof, together with the Base Prospectus.
"Registration Statement" shall mean the registration statement referred to
in Section 2(ii) hereof, including exhibits and financial statements, as amended
at the date hereof (or, if not effective at the date hereof, in the form in
which it shall become effective) and, in the event any post-effective amendment
thereto or any Rule 462(b) Registration Statement becomes effective prior to the
Closing Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall include
any Rule 430A Information deemed to be included therein at the Effective Date as
provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the 1933 Act.
"Rule 430A Information" shall mean information with respect to the
Designated Preferred Securities and the offering thereof permitted to be omitted
from the Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the registration statement referred to in Section 2(ii)
hereof.
Any reference herein to the Registration Statement, the Base Prospectus,
any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein which were filed under
the 1934 Act or the 1934 Act Regulations (as hereafter defined) on or before the
Effective Date of the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Prospectus or the Prospectus, as the case may be;
and any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the filing
of any document under the 1934 Act or the 1934 Act Regulations after the
Effective Date of the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Final Prospectus or the Prospectus, as the case may
be, deemed to be incorporated therein by reference.
2. Representations and Warranties.
The Offerors jointly and severally represent and warrant to, and agree
with, each of the Underwriters that:
(i) The reports filed with the Commission by the Company under
the 1934 Act and the rules and regulations thereunder (the "1934 Act
Regulations") at the time they were filed with the Commission complied as
to form in all material respects with the requirements of the 1934 Act and
the 1934 Act Regulations and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the
4
statements therein, in light of the circumstances in which they were made,
not misleading. The reports filed with the Commission by Lafayette under
the 1934 Act and the 1934 Act Regulations at the time they were filed with
the Commission complied as to form in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations and did not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading.
(ii) The Offerors meet the requirements for the use of Form S-3
under the 1933 Act and have prepared and filed with the Commission a
registration statement on Form S-3 (File Numbers 333-75748, 333-75748-01,
333-75748-02 and 333-75748-03), including a related base prospectus, for
registration under the 1933 Act of the offering and sale of the Designated
Preferred Securities, the Guarantee and up to $70,000,000 aggregate
principal amount of Debentures under the 1933 Act. The Offerors may have
filed one or more amendments to such registration statement, including a
Preliminary Prospectus, each of which has previously been furnished to you,
in each case in conformity in all material respects with the requirements
of the 1933 Act, the rules and regulations promulgated thereunder (the
"1933 Act Regulations") and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") and the rules and regulations thereunder. The
Offerors shall next file with the Commission one of the following: (1)
after the Effective Date of such registration statement, a final prospectus
supplement relating to the Designated Preferred Securities in accordance
with Rules 430A and 424(b), (2) prior to the Effective Date of such
registration statement, an amendment to such registration statement
(including the form of final prospectus supplement) or (3) a final
prospectus in accordance with Rules 415 and 424(b). In the case of clause
(1), the Offerors have included in such registration statement, as amended
at the Effective Date, all information (other than Rule 430A Information)
required by the 1933 Act and the 1933 Act Regulations to be included in
such registration statement and the Prospectus. As filed, such final
prospectus supplement or such amendment and form of final prospectus
supplement shall contain all Rule 430A Information, together with all other
such required information, and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the date hereof or, to the
extent not completed at the date hereof, shall contain only such specific
additional information and other changes (beyond that contained in the Base
Prospectus and any Preliminary Prospectus) as the Company has advised you,
prior to the date hereof, shall be included or made therein. The
Registration Statement, at the date hereof, meets the requirements set
forth in Rule 415(a)(1)(x). Copies of such registration statement,
including any amendments thereto and any documents incorporated by
reference therein, the Base Prospectus and each Preliminary Prospectus
contained therein and the exhibits, financial statements and schedules to
such registration statement, as finally amended and revised, have
heretofore been delivered by the Offerors to the Representatives.
(iii) The documents incorporated by reference in the Registration
Statement, any Preliminary Prospectus or the Prospectus or from which
information is so incorporated by reference, when they became effective or
were filed with the Commission, as the case may be, complied in all
material respects with the requirements of the 1934 Act and the 1934 Act
Regulations, and when read together and with the other information in the
Preliminary Prospectus or the Prospectus, as the case may be, at the time
the Registration Statement became or becomes effective and at the Closing
Date and any Option Closing Date, did not or will not, as the case may be,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. As of the date that each Preliminary Prospectus was filed with
the Commission or as of the date that the Prospectus and any amendment or
supplement
5
thereto was filed with the Commission (or, if not filed, on the date
provided by the Offerors to the Underwriters in connection with the
offering and sale of the Designated Preferred Securities), as the case may
be, no event has or will have occurred which should have been set forth in
an amendment or supplement to any of the documents incorporated by
reference in the Preliminary Prospectus or the Prospectus which has not
then been set forth in such an amendment or supplement.
(iv) No order preventing or suspending the use of the Prospectus
(or, if the Prospectus is not in existence, any Preliminary Prospectus) has
been issued by the Commission, nor has the Commission, to the knowledge of
the Offerors, threatened to issue such an order or instituted proceedings
for that purpose. Each Preliminary Prospectus, at the time of filing
thereof, (A) complied in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and (B) did not contain an untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided,
however, that this representation and warranty does not apply to statements
or omissions made in reliance upon and in conformity with information
furnished in writing to the Offerors by any of the Underwriters expressly
for inclusion in the Prospectus beneath the heading "Underwriting" (such
information referred to herein as the "Underwriters' Information"). As of
the date that each Preliminary Prospectus was filed with the Commission or
as of the date that the Prospectus and any amendment or supplement thereto
was filed with the Commission (or, if not filed, on the date provided by
the Offerors to the Underwriters in connection with the offering and sale
of the Designated Preferred Securities), as the case may be, no event has
or will have occurred which should have been set forth in an amendment or
supplement to any Preliminary Prospectus or the Prospectus which has not
been set forth in any Preliminary Prospectus, the Prospectus or such an
amendment or supplement. Each Preliminary Prospectus and the Prospectus
will be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to its EDGAR system, except to the extent
permitted by Regulation S-T.
(v) The Registration Statement has been declared effective under
the 1933 Act, and no post-effective amendment to the Registration Statement
has been filed with the Commission as of the date of this Agreement. No
stop order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been instituted or, to
the Company's knowledge, threatened by the Commission. At the Effective
Date and at all times subsequent thereto, up to and including the Closing
Date and, if applicable, the Option Closing Date, the Registration
Statement and any post-effective amendment thereto (A) complied and will
comply in all material respects with the requirements of the 1933 Act, the
1933 Act Regulations and the Trust Indenture Act (and the rules and
regulations thereunder) and (B) did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty does
not apply to Underwriters' Information. At the Effective Date, and at all
times when the Prospectus is required to be delivered in connection with
offers and sales of Designated Preferred Securities, including, without
limitation, the Closing Date and, if applicable, the Option Closing Date,
the Prospectus, as amended or supplemented, (A) complied and will comply in
all material respects with the requirements of the 1933 Act and the 1933
Act Regulations, the 1934 Act and the 1934 Act Regulations and the Trust
Indenture Act (and the rules and regulations thereunder) and (B) did not
contain and will not contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that this representation and
warranty does not apply to Underwriters' Information. As of the date that
the
6
Registration Statement was filed with the Commission, no event has or will
have occurred which should have been set forth in an amendment or
supplement to such registration statement which has not then been set forth
in such an amendment or supplement. The Registration Statement will be
identical to the electronically transmitted copy thereof filed with the
Commission pursuant to its EDGAR system, except to the extent permitted by
Regulation S-T. As of the date hereof and at all times when the Prospectus
is required to be delivered in connection with offers and sales of
Designated Preferred Securities, including, without limitation, the Closing
Date and, if applicable, the Option Closing Date, the Trust Agreement, the
Indenture and the Guarantee did or will comply in all material respects
with the applicable requirements of the Trust Indenture Act and the rules
thereunder.
(vi) The Merger Proxy/Registration Statement has become effective
under the 1933 Act and no stop order suspending the effectiveness of the
Merger Proxy/Registration Statement has been issued under the 1933 Act and
no proceedings for that purpose have been instituted or are pending or, to
the best knowledge of the Offerors, are contemplated by the Commission, and
any request on the part of the Commission for additional information has
been complied with. The Company is legally permitted, pursuant to the terms
of the 1933 Act, to distribute the shares of its capital stock as required
by the Merger Agreement pursuant to the Merger Proxy/Registration
Statement. At the time the Merger Proxy/Registration Statement was declared
effective under the 1933 Act, on the dates that the Merger
Proxy/Registration Statement was delivered to the respective shareholders
of the Company and/or Lafayette and at the Merger Effective Date, the
Merger Proxy/Registration Statement complied in all material respects with
the requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act
and the 1934 Act Regulations and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(vii)
(A) The Company is duly organized, validly existing and in
good standing under the laws of the State of Indiana, with full corporate
and other power and authority to own, lease and operate its properties and
conduct its business as described in and contemplated by the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, in
each Preliminary Prospectus) and as currently being conducted and is duly
registered as a bank holding company under the Bank Holding Company Act of
1956, as amended (the "BHC Act").
(B) The Trust has been duly created and is validly existing
as a statutory business trust in good standing under the Delaware Business
Trust Act with the power and authority (trust and other) to own its
property and conduct its business as described in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, in
each Preliminary Prospectus), to issue and sell its common securities (the
"Common Securities") to the Company pursuant to the Trust Agreement, to
issue and sell the Designated Preferred Securities, to enter into and
perform its obligations under this Agreement and to consummate the
transactions herein contemplated; the Trust has no subsidiaries and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or the ownership of its property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing could not have, either individually or in
the aggregate, a material adverse effect on the Trust; the Trust has
conducted and will conduct no business other than the transactions
contemplated by this Agreement and described in the Prospectus (or, if the
Prospectus is not in existence, in each Preliminary Prospectus); the Trust
is not a party to or bound by any agreement or instrument other than this
Agreement, the Trust Agreement among the Administrative Trustees, the
Company and Wachovia Trust Company, National Association,
7
dated December 12, 2001 (the "Original Trust Agreement") and the agreements
and instruments contemplated by the Trust Agreement and described in the
Prospectus (or, if the Prospectus is not in existence, in each Preliminary
Prospectus); the Trust has no liabilities or obligations other than those
arising out of the transactions contemplated by this Agreement and the
Trust Agreement and described in the Prospectus (or, if the Prospectus is
not in existence, in each Preliminary Prospectus); the Trust is not a party
to or subject to any action, suit or proceeding of any nature; the Trust
is, and at the Closing Date or any Option Closing Date will be, classified
as a grantor trust for United States federal income tax purposes; the Trust
is not, and at the Closing Date or any Option Closing Date will not be,
classified as an association taxable as a corporation for United States
federal income tax purposes; and the Trust is, and as of the Closing Date
or any Option Closing Date will be, treated as a consolidated subsidiary of
the Company pursuant to generally accepted accounting principles.
(viii) The Company has only the direct and indirect subsidiaries
identified on Exhibit A attached hereto and incorporated herein (the
"Subsidiaries"). The Company does not own or control, directly or
indirectly, more than 5% of any class of equity security of any
corporation, association or other entity other than the Subsidiaries. Each
Subsidiary is a corporation, business trust, limited liability company, or
bank duly organized or incorporated, as the case may be, validly existing
and in good standing under the laws of its respective jurisdiction of
organization. Each such Subsidiary has full power and authority to own,
lease and operate its properties and to conduct its business as described
in and contemplated by the Registration Statement and the Prospectus (or,
if the Prospectus is not in existence, in each Preliminary Prospectus) and
as currently being conducted. The deposit accounts of Decatur Bank & Trust
Company, First Merchants Bank, National Association, The First National
Bank of Portland, First United Bank, Frances Slocum Bank & Trust Company,
The Madison Community Bank, The Randolph County Bank, The Union County
National Bank of Liberty, and Lafayette Bank and Trust Company
(collectively, the "Banks," individually, a "Bank") are insured by the Bank
Insurance Fund administered by the Federal Deposit Insurance Corporation
(the "FDIC") up to the maximum amount provided by law, and no proceedings
for the modification, termination or revocation of any such insurance are
pending or, to the knowledge of the Offerors, threatened.
(ix) The Company and each of the Subsidiaries is duly qualified
to transact business as a foreign corporation, bank, limited liability
company or business trust, as the case may be, and is in good standing in
each other jurisdiction in which it owns or leases property or conducts its
business so as to require such qualification and in which the failure to so
qualify could, individually or in the aggregate, have a material adverse
effect on the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis. All of the issued and outstanding
shares of capital stock or membership interests of the Subsidiaries (A)
have been duly authorized and are validly issued, (B) are fully paid and
nonassessable, and (C), except as set forth on Exhibit A attached hereto
and incorporated herein, are wholly owned, directly or indirectly, by the
Company free and clear of any security interest, mortgage, pledge, lien,
encumbrance, restriction upon voting or transfer, preemptive rights, claim,
equity or other defect.
(x) The capital stock of the Company and the equity securities of
the Trust conform in all material respects to the description thereof
contained in the Prospectus (or, if the Prospectus is not in existence, in
each Preliminary Prospectus). The outstanding shares of capital stock and
equity securities of each Offeror have been duly authorized and validly
issued and are fully paid and nonassessable, and no such shares were issued
in violation of the preemptive or similar rights of any security holder of
an Offeror. No person has any preemptive or similar right to purchase any
shares of capital stock or equity securities of the Offerors. Except as
disclosed in
8
the Prospectus (or, if the Prospectus is not in existence, in each
Preliminary Prospectus), there are no outstanding rights, options or
warrants to acquire any securities of the Offerors or the Subsidiaries, and
there are no outstanding securities convertible into or exchangeable for
any securities of the Offerors or the Subsidiaries and no restrictions upon
the voting or transfer of any capital stock of the Company or equity
securities of the Trust pursuant to the Company's articles of incorporation
or bylaws, the Trust Agreement or any agreement or other instrument to
which an Offeror is a party or by which an Offeror is bound. As of the date
set forth therein, the Company had an authorized and outstanding
capitalization as set forth in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, in each Preliminary
Prospectus) and the capitalization of the Company immediately following the
Effective Time will be as set forth in the Prospectus (or, if the
Prospectus is not in existence, each Preliminary Prospectus) under the
caption "Capitalization" (except for subsequent issuances, if any, pursuant
to this Agreement, the Merger Agreement, the Company's dividend
reinvestment plan, pursuant to the Company's acquisitions in January, 2002
of two title insurance agencies, or reservations or employee benefit plans
referred to in the Prospectus (or, if the Prospectus is not in existence,
in each Preliminary Prospectus)).
(xi)
(A) The Trust has all requisite trust power and authority to
issue, sell and deliver the Designated Preferred Securities in accordance
with and upon the terms and conditions set forth in this Agreement, the
Trust Agreement, the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, in each Preliminary Prospectus). All
corporate and trust action required to be taken by the Offerors for the
authorization, issuance, sale and delivery of the Designated Preferred
Securities in accordance with such terms and conditions has been validly
and duly taken. The Designated Preferred Securities, when delivered and
paid for in accordance with this Agreement, will be duly and validly issued
and outstanding, will represent valid fully paid and nonassessable
undivided beneficial interests in the assets of the Trust, will be entitled
to the benefits of the Trust Agreement pertaining to holders of Preferred
Securities, will not be issued in violation of or subject to any preemptive
or similar rights, and will conform to the description thereof in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, in each Preliminary Prospectus) and the Trust Agreement. None of
the Designated Preferred Securities, immediately prior to delivery, will be
subject to any security interest, lien, mortgage, pledge, encumbrance,
restriction upon voting or transfer, preemptive rights, claim, equity or
other defect.
(B) The Debentures have been duly and validly authorized,
and, when duly and validly executed, authenticated and issued as provided
in the Indenture and delivered to the Trust pursuant to the Trust
Agreement, will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their terms,
except to the extent that enforcement thereof may be limited by and/or
subject to bankruptcy, insolvency, reorganization or similar laws affecting
the rights of creditors generally and subject to general principles of
equity, will be in the form contemplated by, and entitled to the benefits
pertaining to holders of Debentures under the Indenture, will conform in
all material respects to the description thereof contained in the
Prospectus (or, if the Prospectus is not in existence, in each Preliminary
Prospectus) and will be owned by the Trust free and clear of any security
interest, mortgage, pledge, lien, encumbrance, restriction upon transfer,
preemptive rights, claim, equity or other defect.
(C) The Guarantee has been duly and validly authorized, and,
when duly and validly executed and delivered to the guarantee trustee for
the benefit of the holders of
9
the Preferred Securities, will constitute a valid and legally binding
obligation of the Company, enforceable against the Company in accordance
with its terms, except to the extent that enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, or similar laws
affecting the rights of creditors generally and subject to general
principles of equity, and will conform in all material respects to the
description thereof contained in the Prospectus (or, if the Prospectus is
not in existence, in each Preliminary Prospectus).
(D) The Agreement as to Expenses and Liabilities between the
Company and the Trust (the "Expense Agreement") has been duly and validly
authorized, and, when duly and validly executed and delivered by the
Company, will constitute a valid and legally binding obligation of the
Company enforceable against the Company in accordance with its terms,
except to the extent that enforcement thereof may be limited by and/or
subject to bankruptcy, insolvency, reorganization or similar laws affecting
the rights of creditors generally and subject to general principles of
equity, and will conform in all material respects to the description
thereof contained in the Prospectus (or, if the Prospectus is not in
existence, in each Preliminary Prospectus).
(xii) The Merger Agreement was duly authorized, executed and
delivered by the Company and Lafayette and constituted a valid, legal and
binding agreement of the Company and Lafayette, enforceable against the
Company and Lafayette in accordance with its terms, and conformed in all
material respects to the description thereof contained in the Merger
Proxy/Registration Statement. The shares of the capital stock of the
Company delivered pursuant to the terms of the Merger Agreement were duly
authorized for issuance by the Company pursuant to the Merger Agreement,
were issued, executed and authenticated in accordance with the Merger
Agreement and delivered as provided in the Merger Agreement, and are
validly issued and fully paid and non-assessable and conform in all
material respects to the description thereof in the Merger
Proxy/Registration Statement. The issuance of such shares of capital stock
was not subject to preemptive or other similar rights. With the exception
of the delivery of the Merger consideration, all conditions to the
obligations of each of the Company and Lafayette to consummate the Merger
have been satisfied or duly waived and the net proceeds from the sale of
the Designated Preferred Securities and the Company's cash on hand will be
sufficient to pay the cash consideration payable to Lafayette shareholders
pursuant to the Merger and related fees and expenses and to fund ordinary
business operations consistent with past practices.
(xiii) The Offerors and the Subsidiaries have complied in all
material respects with all foreign, federal, state and local statutes,
regulations, ordinances and rules as now in effect and applicable to the
ownership and operation of their properties or the conduct of their
businesses as described in and contemplated by the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, in each
Preliminary Prospectus) and as currently being conducted. Neither the
Company nor any non-banking Subsidiary engages directly or indirectly in
any activity prohibited by the Board of Governors of the Federal Reserve
System (the "FRB") or the BHC Act or the regulations promulgated
thereunder.
(xiv) The Offerors and the Subsidiaries have all material
permits, easements, consents, licenses, franchises and other governmental
and regulatory authorizations from all appropriate federal, state, local or
other public authorities ("Permits") as are necessary to own and lease
their properties and conduct their businesses in the manner described in
and contemplated by the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, in each Preliminary Prospectus) and as
currently being conducted. All such Permits are in full force and effect
and each of the Offerors and the Subsidiaries are in all material respects
complying
10
therewith, and no event has occurred that allows, or after notice or lapse
of time would allow, revocation or termination thereof or will result in
any other material impairment of the rights of the holder of any such
Permit. Such Permits contain no restrictions that would materially impair
the ability of the Company or the Subsidiaries to conduct their businesses
in the manner consistent with their past practices. Neither the Offerors
nor any of the Subsidiaries have received notice or otherwise has knowledge
of any proceeding or action relating to the revocation or modification of
any such Permit.
(xv) Neither of the Offerors nor any of the Subsidiaries are in
breach or violation of their corporate charter, by-laws or other governing
documents (including without limitation, the Original Trust Agreement) in
any material respect. Neither of the Offerors nor any of the Subsidiaries
is, and to the knowledge of the Offerors no other party is, in violation,
breach or default (with or without notice or lapse of time or both) in the
performance or observance of any term, covenant, agreement, obligation,
representation, warranty or condition contained in (A) any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease,
franchise, license, Permit or any other agreement or instrument to which it
is a party or by which it or any of its properties may be bound, which such
breach, violation or default could, individually or in the aggregate with
other breaches, violations or defaults, have a material adverse effect on
the condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Company and the Subsidiaries on a
consolidated basis, and to the knowledge of the Offerors, no other party
has asserted that the Offerors or any of the Subsidiaries is in such
violation, breach or default, or (B) any order, decree, judgment, rule or
regulation of any court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, having jurisdiction over the Offerors
or the Subsidiaries or any of their respective properties the breach,
violation or default of which could, individually or in the aggregate with
other breaches, violations or defaults, have a material adverse effect on
the condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Company and the Subsidiaries on a
consolidated basis.
(xvi) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated by this Agreement,
the Merger Agreement, the Trust Agreement, the Guarantee, the Indenture,
the Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, in each Preliminary Prospectus) (including, without
limitation, the issuance and sale of the Designated Preferred Securities
and the use of proceeds from the sale of the Designated Preferred
Securities as described in the Prospectus under the caption "Use of
Proceeds") do not and will not conflict with, result in the creation or
imposition of any material lien, claim, charge, encumbrance or restriction
upon any property or assets of the Offerors or the Subsidiaries or the
Designated Preferred Securities pursuant to, constitute a breach or
violation of, or constitute a default under, with or without notice or
lapse of time or both, any of the terms, provisions or conditions of (A)
the charter or by-laws of the Company or the Subsidiaries, (B) any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease, franchise, license, Permit or any other agreement or
instrument to which the Offerors or the Subsidiaries is a party or by which
any of them or any of their respective properties may be bound, or (C) any
order, decree, judgment, rule or regulation of any court, arbitrator,
government, or governmental agency or instrumentality, domestic or foreign,
having jurisdiction over the Offerors or the Subsidiaries or any of their
respective properties which conflict, creation, imposition, breach,
violation or default could have, either individually or in the aggregate, a
material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the
Offerors and the Subsidiaries on a consolidated basis. No authorization,
approval, consent or order of or filing, registration or qualification
with, any person (including, without limitation, any court, governmental
body or authority) is required in
11
connection with the transactions contemplated by this Agreement, the Merger
Agreement, the Trust Agreement, the Indenture, the Guarantee, the Expense
Agreement, the Registration Statement and the Prospectus (or any
Preliminary Prospectus), except such as have been obtained under the 1933
Act and the Trust Indenture Act and from the Nasdaq National Market
relating to the listing of the Designated Preferred Securities, and such as
may be required under state securities laws or Interpretations or Rules of
the National Association of Securities Dealers, Inc. ("NASD") in connection
with the purchase and distribution of the Designated Preferred Securities
by the Underwriters.
(xvii) The Company has all requisite power and authority and the
Trust has all requisite trust power and authority to enter into this
Agreement and this Agreement has been duly and validly authorized, executed
and delivered by the Offerors and constitutes the legal, valid and binding
agreement of the Offerors, enforceable against the Offerors in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting the rights
of creditors generally and subject to general principles of equity and
except as any indemnification or contribution provisions thereof may be
limited under applicable securities laws. Each of the Indenture, the Trust
Agreement, the Guarantee and the Expense Agreement has been duly authorized
by the Company, and, when executed and delivered by the Company on the
Closing Date, each of said agreements will constitute a valid and legally
binding obligation of the Company and will be enforceable against the
Company in accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally and subject to general
principles of equity and except as any indemnification or contribution
provisions thereof may be limited under applicable securities laws. Each of
the Indenture, the Trust Agreement and the Guarantee has been duly
qualified under the Trust Indenture Act and will conform to the description
thereof contained in the Prospectus.
(xviii) The Company and the Subsidiaries have good and marketable
title in fee simple to all real property and good title to all personal
property owned by them and material to their business, in each case free
and clear of all security interests, liens, mortgages, pledges,
encumbrances, restrictions, claims, equities and other defects except such
as are referred to in the Prospectus (or, if the Prospectus is not in
existence, in each Preliminary Prospectus) or such as do not materially
affect the value of such property in the aggregate and do not materially
interfere with the use made or proposed to be made of such property; and
all of the leases under which the Company or the Subsidiaries hold real or
personal property are valid and existing leases, enforceable against the
parties thereto, and in full force and effect with such exceptions as are
not material and do not materially interfere with the use made or proposed
to be made of such real or personal property, and neither the Company nor
any of the Subsidiaries is in default in any material respect of any of the
terms or provisions of any material leases.
(xix) BKD LLP, who have certified certain of the consolidated
financial statements of the Company and the Subsidiaries including the
notes thereto, included or incorporated by reference in the Registration
Statement and Prospectus, are independent public accountants with respect
to the Company and the Subsidiaries, as required by the 1933 Act and the
1933 Act Regulations.
(xx) The consolidated financial statements including the notes
thereto, included or incorporated by reference in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, in
each Preliminary Prospectus) with respect to the Company and the
Subsidiaries comply with the 1933 Act and the 1933 Act Regulations and
present fairly in all material respects the consolidated financial position
of the Company and the Subsidiaries as of
12
the dates indicated and the consolidated results of operations, cash flows
and shareholders' equity of the Company and the Subsidiaries for the
periods specified and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis. The
consolidated financial statements including the notes thereto, included or
incorporated by reference in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, in each Preliminary Prospectus)
with respect to Lafayette and its subsidiaries comply with the 1933 Act and
the 1933 Act Regulations and present fairly in all material respects the
consolidated financial position of Lafayette and its subsidiaries as of the
dates indicated and the consolidated results of operations, cash flows and
shareholders' equity of Lafayette and its subsidiaries for the periods
specified and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis. The selected
consolidated financial data concerning the Company and the Subsidiaries
included in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, in each Preliminary Prospectus) comply in
all material respects with the 1933 Act and the 1933 Act Regulations,
present fairly the information set forth therein, have been derived from
the financial statements or operating records of the Company and have been
compiled on a basis consistent with that of the consolidated financial
statements of the Company and the Subsidiaries in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, in
each Preliminary Prospectus). The selected consolidated financial data
concerning Lafayette and its subsidiaries included in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, in
each Preliminary Prospectus) comply in all material respects with the 1933
Act and the 1933 Act Regulations, present fairly the information set forth
therein, have been derived from the financial statements or operating
records of Lafayette and have been compiled on a basis consistent with that
of the consolidated financial statements of Lafayette and its subsidiaries
in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, in each Preliminary Prospectus). The summary pro forma
consolidated financial information and the pro forma combined consolidated
financial information included in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, in each Preliminary
Prospectus) present fairly, in all material respects, the information
relating to the Company, and the information relating to Lafayette, shown
therein, and have been compiled on a basis consistent with that of the
audited consolidated financial statements of the Company and the
assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions
and circumstances referred to therein. The other financial, statistical and
numerical information included in the Registration Statement and the
Prospectus (or such Preliminary Prospectus) is accurate in all material
respects, complies in all material respects with the 1933 Act and the 1933
Act Regulations, has been derived from the financial statements or
operating records of the Company or Lafayette, as the case may be, presents
fairly the information shown therein, and to the extent applicable has been
compiled on a basis consistent with the consolidated financial statements
of the Company and the Subsidiaries included in the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, in each
Preliminary Prospectus).
(xxi) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, in each Preliminary Prospectus), except as otherwise
stated therein:
(A) neither of the Offerors nor any of the Subsidiaries has
sustained any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree which is
material, individually or in the aggregate, to the condition (financial or
otherwise), earnings, affairs, business, prospects or results of operations
of the Company and the Subsidiaries on a consolidated basis;
13
(B) there has not been any material adverse change in, or
any development which is reasonably likely to have a material adverse
effect on, the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis, whether or not arising in the
ordinary course of business;
(C) neither of the Offerors nor any of the Subsidiaries has
incurred any liabilities or obligations, direct or contingent, or entered
into any material transactions, other than in the ordinary course of
business, which are material, individually or in the aggregate, to the
condition (financial or otherwise), earnings, affairs, business, prospects
or results of operations of the Company and the Subsidiaries on a
consolidated basis;
(D) neither of the Offerors has declared or paid any
dividend, and neither of the Offerors nor any of the Subsidiaries has
become delinquent in the payment of principal or interest on any
outstanding borrowings;
(E) there has not been any change in the capital stock,
equity securities, long-term debt, obligations under capital leases or,
other than in the ordinary course of business, short-term borrowings of the
Offerors or the Subsidiaries; and
(F) there has not occurred any other event and there has
arisen no set of circumstances required by the 1933 Act or the 1933 Act
Regulations to be disclosed in the Registration Statement or the Prospectus
which has not been so set forth in the Registration Statement or the
Prospectus as fairly and accurately summarized therein.
(xxii) Since the respective dates as of which information is
given in the Registration Statement, the Prospectus (or, if the Prospectus
is not in existence, in each Preliminary Prospectus) and the Merger
Proxy/Registration Statement, there has not been any material adverse
change in the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operation of Lafayette and Lafayette Bank
on a consolidated basis, whether or not arising in the ordinary course of
business.
(xxiii) No charge, investigation, action, suit or proceeding is
pending or, to the knowledge of the Offerors, threatened, against or
affecting the Offerors or the Subsidiaries or any of their respective
properties before or by any court or any regulatory, administrative or
governmental official, commission, board, agency or other authority or
body, or any arbitrator, wherein an unfavorable decision, ruling or finding
could, individually or in the aggregate with other unfavorable decisions,
rulings or findings, have a material adverse effect on the consummation of
this Agreement or the transactions contemplated herein or the condition
(financial or otherwise), earnings, affairs, business, prospects or results
of operations of the Offerors and the Subsidiaries on a consolidated basis
or which is required to be disclosed in the Registration Statement or the
Prospectus (or, if the Prospectus is not in existence, in each Preliminary
Prospectus) and is not so disclosed.
(xxiv) There are no contracts or other documents required to be
filed as exhibits to the Registration Statement by the 1933 Act or the 1933
Act Regulations or the Trust Indenture Act (or any rules or regulations
thereunder) which have not been filed as exhibits or incorporated by
reference into the Registration Statement, or that are required to be
summarized in the Prospectus (or, if the Prospectus is not in existence, in
each Preliminary Prospectus) that are not so summarized.
14
(xxv) Neither of the Offerors has taken, directly or indirectly,
any action designed to result in or which has constituted or which might
reasonably be expected to cause or result in stabilization or manipulation
of the price of any security of the Offerors to facilitate the sale or
resale of the Designated Preferred Securities in violation of the
Commission's rules and regulations, including, but not limited to,
Regulation M, and neither of the Offerors is aware of any such action taken
or to be taken by any affiliate of the Offerors.
(xxvi) The Offerors and the Subsidiaries own, or possess adequate
rights to use, all patents, copyrights, trademarks, service marks, trade
names and other rights necessary to conduct the businesses now conducted by
them in all material respects or as described in the Prospectus (or, if the
Prospectus is not in existence, in each Preliminary Prospectus) and neither
the Company nor the Subsidiaries have received any notice of infringement
or conflict with asserted rights of others with respect to any patents,
copyrights, trademarks, service marks, trade names or other rights which,
individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, could have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, business, prospects
or results of operations of the Company and the Subsidiaries on a
consolidated basis, and the Offerors do not know of any basis for any such
infringement or conflict which, individually or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could have a
material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the
Company and the Subsidiaries on a consolidated basis.
(xxvii) No labor dispute involving the Company or the
Subsidiaries exists or, to the knowledge of the Offerors, is imminent which
could, individually or in the aggregate with other disputes, have a
material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the
Company and the Subsidiaries on a consolidated basis or which is required
to be disclosed in the Prospectus (or, if the Prospectus is not in
existence, in each Preliminary Prospectus). Neither the Company nor any of
the Subsidiaries has received notice of any existing or threatened labor
dispute by the employees of any of its principal suppliers, customers or
contractors which could, individually or in the aggregate with other
disputes, have a material adverse effect on the condition (financial or
otherwise), earnings, affairs, business, prospects or results of operations
of the Company and the Subsidiaries on a consolidated basis.
(xxviii) The Offerors and the Subsidiaries have timely and
properly prepared and filed all necessary federal, state, local and foreign
tax returns which are required to be filed and have paid all taxes shown as
due thereon and have paid all other taxes and assessments to the extent
that the same shall have become due, except such as are being contested in
good faith or where the failure to so timely and properly prepare and file
could not, individually or in the aggregate, have a material adverse effect
on the condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Company and the Subsidiaries on a
consolidated basis. The Offerors have no knowledge of any tax deficiency
which has been or might be assessed against the Offerors or the
Subsidiaries which, if the subject of an unfavorable decision, ruling or
finding, could, individually or in the aggregate, have a material adverse
effect on the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis.
(xxix) Each of the contracts, agreements and instruments material
to the condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Company and its Subsidiaries on a
consolidated basis, or listed, described, or attached as an exhibit to the
Company's and Lafayette's respective Annual Reports on Form 10-K for the
year
15
ended December 31, 2001 as filed with the Commission is in full force and
effect and is the legal, valid and binding agreement of the Offerors or the
Subsidiaries and the other parties thereto, enforceable in accordance with
its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity, except
where the cancellation, termination or unenforceability could not,
individually or in the aggregate with other cancellations, terminations or
unenforceable contracts, agreements and instruments, have a material
adverse effect on the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the Company and
the Subsidiaries on a consolidated basis. Neither the Company nor any
Subsidiary is (with or without notice or lapse of time or both) in breach
or default in any material respect under any such contacts, agreements or
instruments referred to in the preceding sentence (or upon consummation of
the transactions contemplated by this Agreement will be in breach or
default in any material respect thereunder) and, to the knowledge of the
Offerors, no other party to any such agreement is (with or without notice
or lapse of time or both) in breach or default in any material respect
thereunder.
(xxx) No relationship, direct or indirect, exists between or
among the Company or the Subsidiaries, on the one hand, and the directors,
officers, trustees, shareholders, customers or suppliers of the Company or
the Subsidiaries, on the other hand, which is required to be described in
the Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, in each Preliminary Prospectus) which is not adequately
described therein.
(xxxi) No person has the right to request or require the Offerors
or the Subsidiaries to register any securities for offering and sale under
the 1933 Act by reason of the filing of the Registration Statement with the
Commission or the issuance and sale of the Designated Preferred Securities
except as adequately disclosed in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, in each Preliminary
Prospectus).
(xxxii) The Designated Preferred Securities have been approved
for quotation on the Nasdaq National Market subject to official notice of
issuance.
(xxxiii) Except as described in the Prospectus (or, if the
Prospectus is not in existence, in each Preliminary Prospectus), there are
no contractual encumbrances or restrictions or material legal restrictions
required to be described therein, on the ability of the Subsidiaries (A) to
pay dividends or make any other distributions on its capital stock or to
pay any indebtedness owed to the Company, (B) to make any loans or advances
to, or investments in, the Company or (C) to transfer any of its property
or assets to the Company.
(xxxiv) Neither of the Offerors is an "investment company," an
entity "controlled" by an "investment company" or an "investment adviser"
within the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act") or the Investment Advisers Act of 1940, as
amended (the "Investment Advisers Act").
(xxxv) The Offerors have not distributed and will not distribute
prior to the Closing Date or, if applicable, the Option Closing Date, any
prospectus in connection with the Offering, other than a Preliminary
Prospectus, the Prospectus, the Registration Statement and the other
materials permitted by the 1933 Act and the 1933 Act Regulations and
reviewed by the Representatives.
(xxxvi) The activities of the Offerors and the Subsidiaries are
permitted under applicable federal and state banking laws and regulations.
The Company has all necessary
16
approvals, including the approval of the Office of the Comptroller of the
Currency (the "OCC") , the FDIC, the Indiana Department of Financial
Institutions (the "DFI") and the FRB, as applicable, to own the capital
stock of the Subsidiaries. Neither the Company nor any of the Subsidiaries
is a party or subject to any agreement or memorandum with, or directive or
other order issued by, the FRB, the OCC, the FDIC, the DFI or other
regulatory authority having jurisdiction over it (each, a "Regulator," and
collectively, the "Regulators"), which imposes any restrictions or
requirements not generally applicable to entities of the same type as the
Company and the Subsidiaries. Neither the Company nor any Subsidiary is
subject to any order or other directive from any Regulator to make any
material change in the method of conducting their respective businesses,
and no such directive is pending or threatened by such Regulators.
(xxxvii) The Banks and the other Subsidiaries have properly
administered all accounts for which they act as a fiduciary, including but
not limited to accounts for which they serve as a trustee, agent,
custodian, personal representative, guardian, conservator or investment
advisor, in accordance with the terms of the governing documents and
applicable state and federal law and regulation and common law, except
where the failure to be in compliance could not, individually or in the
aggregate, have a material adverse effect upon the condition (financial or
otherwise), earnings, affairs, business, prospects or results of operations
of the Company and the Subsidiaries on a consolidated basis. None of the
Banks or other Subsidiaries nor any of their directors, officers or
employees has committed any material breach of trust with respect to any
such fiduciary account, and the accountings for each such fiduciary account
are true and correct in all material respects and accurately reflect the
assets of such fiduciary account in all material respects.
(xxxviii)Other than as contemplated by this Agreement and as
disclosed in the Registration Statement, the Company has not incurred any
liability for any finder's or broker's fee or agent's commission in
connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated thereby.
(xxxix) No report or application filed by the Company or any of
its Subsidiaries with the FRB, the OCC, the FDIC, the DFI or any other
Regulator, as of the date it was filed or amended, contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading when made or failed to comply in all material respects with the
applicable requirements of the FRB, the OCC, the FDIC, the DFI or such
other Regulator, as the case may be.
(xl) Based upon current guidelines of the FRB, proceeds from the
sale of the Debentures will constitute "Tier 1" capital (as defined in 12
C.F.R. Part 225), subject to applicable regulatory restrictions on the
amount thereof that can be included in Tier 1 capital.
(xli) None of the Offerors, the Subsidiaries or, to the best
knowledge of the Offerors, any other person associated with or acting on
behalf of the Offerors or any of the Subsidiaries, including, without
limitation, any director, officer, agent, or employee of any of the
Subsidiaries or the Company has, directly or indirectly, while acting on
behalf of such Offeror or Subsidiary (i) used any corporate funds for
unlawful contributions, gifts, entertainment, or other unlawful expenses
relating to political activity; (ii) made any unlawful contribution to any
candidate for foreign or domestic office, or to any foreign or domestic
government officials or employees or other person charged with similar
public or quasi-public duties, other than payments required or permitted by
the laws of the United States or any jurisdiction thereof or to foreign or
domestic political parties or campaigns from corporate funds, or failed to
disclose fully any contribution in violation of law; (iii) violated any
provision of the Foreign Corrupt Practices
17
Act of 1977, as amended; or (iv) made any other payment of funds for either
or both of the Offerors or a Subsidiary or retained any funds which
constitute a violation of any law, rule or regulation or which was or is
required to be disclosed in the Registration Statement or the Prospectus
pursuant to the requirements of the 1933 Act or the 1933 Act Regulations.
(xlii) Neither the Company nor any Subsidiary has any liability
under any "pension plan," as defined in the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"). The employee benefit plans,
including employee welfare benefit plans, of the Company and each of the
Subsidiaries (the "Employee Plans") have been operated in material
compliance with the applicable provisions of ERISA, the Internal Revenue
Code of 1986, as amended (the "Code"), all regulations, rulings and
announcements promulgated or issued thereunder and all other applicable
governmental laws and regulations (except to the extent such noncompliance
could not, individually or in the aggregate, have a material adverse effect
upon the condition (financial or otherwise) earnings, affairs, business,
prospects or results of operations of the Offerors or the Subsidiaries on a
consolidated basis). No reportable event under Section 4043(c) of ERISA has
occurred with respect to any Employee Plan of the Company or any of the
Subsidiaries for which the reporting requirements have not been waived by
the Pension Benefit Guaranty Corporation. No prohibited transaction under
Section 406 of ERISA, for which an exemption does not apply, has occurred
with respect to any Employee Plan of the Company or any of the
Subsidiaries. There are no pending or, to the knowledge of the Offerors,
threatened, claims by or on behalf of any Employee Plan, by any employee or
beneficiary covered under any such Employee Plan or by any governmental
authority or otherwise involving such Employee Plans or any of their
respective fiduciaries (other than for routine claims for benefits). All
Employee Plans that are group health plans have been operated in material
compliance with the group health plan continuation coverage requirements of
Section 4980B of the Code.
(xliii) The Company and each of the Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (A) transactions are executed in accordance with
management's general or specific authorizations, (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets, (C) access to assets is permitted only in
accordance with management's general or specific authorization, and (D) the
recorded accounts for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect thereto.
The books, records and accounts and systems of internal accounting controls
of the Company and its Subsidiaries comply in all material respects with
the requirements of Section 13(b)(2) of the 1934 Act.
(xliv) Except as described in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the Preliminary
Prospectus), there is no factual basis for any action, suit or other
proceeding involving the Company or the Subsidiaries or any of their
material assets for any failure of the Company or any of the Subsidiaries,
or any predecessor thereof, to comply with any requirements of federal,
state or local regulation relating to air, water, solid waste management,
hazardous or toxic substances, or the protection of health or the
environment; except where such action, suit or other proceeding could not,
individually or in the aggregate with other actions, suits or proceedings,
have a material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the
Company and the Subsidiaries on a consolidated basis. Except as described
in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, in each Preliminary Prospectus) or as could not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, business, prospects
or results of operations of the Company and the Subsidiaries on a
consolidated basis, none of the property owned or leased
18
by the Company or any of the Subsidiaries or their predecessors is
contaminated with any waste or hazardous substances, and neither the
Company nor any of the Subsidiaries may be deemed an "owner or operator" of
a "facility" or "vessel" which owns, possesses, transports, generates or
disposes of a "hazardous substance" as those terms are defined in ss.9601
of the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, 42 U.S.C. ss.9601 et seq.
(xlv) The Company and the Subsidiaries maintain insurance
covering in all material respects their properties, personnel and business.
Such insurance insures against such losses and risks as, in the judgment of
the executive officers of the Company, are adequate to protect in all
material respects the Company and the Subsidiaries and their businesses.
Neither the Company nor any of the Subsidiaries has received notice from
any insurer or agent of such insurer that substantial capital improvements
or other expenditures shall have to be made in order to continue such
insurance. All such insurance is outstanding and duly in force on the date
hereof and shall be outstanding and duly in force on the Closing Date and,
if applicable, the Option Closing Date, with such exceptions as would not
have a material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the
Company and the Subsidiaries on a consolidated basis.
(xlvi) Other than the Merger, neither the Company nor any
Subsidiary has any agreement or understanding with any person (A)
concerning the future acquisition by the Company or the Banks of a
controlling interest in any entity or (B) concerning the future acquisition
by any person of a controlling interest in the Company or any Subsidiary,
in either case that is required by the 1933 Act or the 1933 Act Regulations
to be disclosed by the Company that is not disclosed in the Prospectus.
3. Offering by the Underwriters.
After the Registration Statement becomes effective or, if the Registration
Statement is already effective, after this Agreement becomes effective, the
Underwriters propose to offer the Firm Preferred Securities for sale to the
public upon the terms and conditions set forth in the Prospectus. The
Underwriters may from time to time thereafter reduce the public offering price
and change the other selling terms, provided the proceeds to the Trust shall not
be reduced as a result of such reduction or change. Because the NASD is expected
to view the Preferred Securities as interests in a direct participation program,
the offering of the Preferred Securities is being made in compliance with the
applicable provisions of Rule 2810 of the NASD's conduct rules.
The Underwriters may reserve and sell such of the Designated Preferred
Securities purchased by the Underwriters as the Underwriters may elect to
dealers chosen by it (the "Selected Dealers") at the public offering price set
forth in the Prospectus less the applicable Selected Dealers' concessions set
forth therein, for re-offering by Selected Dealers to the public at the public
offering price. The Underwriters may allow, and Selected Dealers may re-allow, a
concession set forth in the Prospectus to certain other brokers and dealers.
4. Certain Covenants of the Offerors.
The Offerors jointly and severally covenant with the Underwriters as
follows:
(a) The Offerors shall cause the Registration Statement and any
amendments thereto, if not effective at the time of execution of this Agreement,
to become effective as promptly as possible. If the Registration Statement has
become or becomes effective pursuant to Rule 430A and information has been
omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and
file in accordance
19
with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule
430A, a post-effective amendment to the Registration Statement (including the
Prospectus) containing all information so omitted and will provide evidence
satisfactory to the Representatives of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such notice
in writing:
(i) when the Registration Statement, or any post-effective
amendment to the Registration Statement, has become effective, or when the
Prospectus or any supplement to the Prospectus or any amended Prospectus
has been filed;
(ii) of the receipt of any comments or requests from the
Commission;
(iii) of any request of the Commission to amend or supplement the
Registration Statement, any Preliminary Prospectus or the Prospectus or for
additional information; and
(iv) of the issuance by the Commission or any state or other
regulatory body of any stop order or other order suspending the
effectiveness of the Registration Statement, preventing or suspending the
use of any Preliminary Prospectus or the Prospectus, or suspending the
qualification of any of the Designated Preferred Securities for offering or
sale in any jurisdiction or the institution or threat of institution of any
proceedings for any of such purposes. The Offerors shall use their best
efforts to prevent the issuance of any such stop order or of any other such
order and if any such order is issued, to cause such order to be withdrawn
or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time
without charge, as soon as available, as many copies as the Underwriters may
reasonably request of (i) the registration statement as originally filed and of
all amendments thereto, in executed form, including exhibits, whether filed
before or after the Registration Statement becomes effective, (ii) all exhibits
and documents incorporated therein or filed therewith, (iii) all consents and
certificates of experts in executed form, (iv) the Preliminary Prospectus and
all amendments and supplements thereto, and (v) the Prospectus, and all
amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered
under the 1933 Act, the Offerors shall comply with the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of the Designated Preferred Securities as
contemplated herein and in the Trust Agreement and the Prospectus. The Offerors
shall not file any amendment to the registration statement as originally filed
or to the Registration Statement and shall not file any amendment thereto or
make any amendment or supplement to any Preliminary Prospectus or to the
Prospectus of which you shall not previously have been advised in writing and
provided a copy a reasonable time prior to the proposed filings thereof or to
which you or counsel for the Underwriters shall reasonably object. If it is
necessary, in the Company's reasonable opinion or in the reasonable opinion of
the Company's counsel, to amend or supplement the Registration Statement or the
Prospectus in connection with the distribution of the Designated Preferred
Securities, the Offerors shall forthwith amend or supplement the Registration
Statement or the Prospectus, as the case may be, by preparing and filing with
the Commission (provided the Underwriters or counsel for the Underwriters does
not reasonably object), and furnishing to you such number of copies as you may
reasonably request of an amendment or amendments of, or a supplement or
supplements to, the Registration Statement or the Prospectus, as the case may be
(in form and substance satisfactory to you and counsel for the Underwriters). If
any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus to correct an untrue statement of a material fact or
to include a material fact necessary to make
20
the statements therein, in light of the circumstances under which they were
made, not misleading, or if for any reason it is necessary at any time to amend
or supplement the Prospectus to comply with the 1933 Act and the 1933 Act
Regulations, the Offerors shall, subject to the second sentence of this
subsection (d), forthwith at their cost and expense amend or supplement the
Prospectus by preparing and filing with the Commission, and furnishing to you,
such number of copies as you may reasonably request of an amendment or
amendments of, or a supplement or supplements to, the Prospectus (in form and
substance satisfactory to you and counsel for the Underwriters) so that, as so
amended or supplemented, the Prospectus shall not contain an untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(e) The Offerors shall cooperate with you and counsel for the
Underwriters in order to qualify the Designated Preferred Securities for
offering and sale under the securities or blue sky laws of such jurisdictions as
you may reasonably request and shall continue such qualifications in effect so
long as may be advisable for distribution of the Designated Preferred
Securities; provided, however, that the Offerors shall not be required to
qualify to do business as a foreign corporation or file a general consent to
service of process in any jurisdiction in connection with the foregoing. The
Offerors shall file such statements and reports as may be required by the laws
of each jurisdiction in which the Designated Preferred Securities have been
qualified as above. The Offerors will notify you immediately of, and confirm in
writing, the suspension of qualification of the Designated Preferred Securities
or threat thereof in any jurisdiction.
(f) The Offerors shall use their best efforts to permit the Preferred
Securities to be eligible for clearance and settlement through the facilities of
DTC.
(g) The Offerors shall make generally available to their security
holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and
furnish to you as soon as practicable, but in any event not later than 16 months
after the Effective Date, a consolidated earnings statement of the Offerors in
reasonable detail, covering a period of at least 12 consecutive months beginning
after the effective date of the Registration Statement, conforming with the
requirements of Section 11(a) of the 1933 Act and Rule 158.
(h) The Offerors shall use the net proceeds from the sale of the
Designated Preferred Securities to be sold by the Trust hereunder in the manner
specified in the Prospectus under the caption "Use of Proceeds."
(i) For five years from the Effective Date, the Offerors shall furnish
to the Representatives copies of all reports and communications (financial or
otherwise) furnished by the Offerors to the holders of the Designated Preferred
Securities as a class, copies of all reports and financial statements filed with
or furnished to the Commission (other than portions for which confidential
treatment has been obtained from the Commission) or with any national securities
exchange or the Nasdaq National Market or other self-regulatory organization and
such other documents, reports and information concerning the business and
financial conditions of the Offerors as the Representatives may reasonably
request, other than such documents, reports and information for which the
Offerors has the legal obligation not to reveal to the Representatives.
(j) For a period of 90 days from the Effective Date, the Offerors
shall not, directly or indirectly, offer for sale, sell or agree to sell or
otherwise dispose of any Designated Preferred Securities, any other beneficial
interests in the assets of the Trust or any securities of the Trust or the
Company that are substantially similar to the Designated Preferred Securities
(other than the Common Securities of the Trust to be issued to the Company),
including any guarantee of such beneficial interests or substantially
21
similar securities, or securities convertible into or exchangeable for or that
represent the right to receive any such beneficial interest or substantially
similar securities, except for the registration of the Designated Preferred
Securities and the sales to the Underwriters pursuant to this Agreement, without
the prior written consent of the Representatives.
(k) The Offerors shall use their best efforts to cause the Designated
Preferred Securities to become quoted on the Nasdaq National Market, or in lieu
thereof a national securities exchange, and to remain so quoted, provided this
shall not prevent the Company from redeeming the Designated Preferred Securities
pursuant to the terms of the Trust Agreement. If the Designated Preferred
Securities are exchanged for Debentures, the Company shall use its best efforts
to have the Debentures promptly listed on the Nasdaq National Market or other
organization on which the Designated Preferred Securities are then listed, and
to have the Debentures promptly registered under the 1934 Act.
(l) Subsequent to the date of this Agreement and through the date
which is the later of (i) the day following the date on which the Underwriters'
option to purchase the Option Preferred Securities shall expire or (ii) the day
following the Option Closing Date with respect to any Option Preferred
Securities that the Underwriters shall elect to purchase, except as described in
or contemplated by the Prospectus, neither the Offerors nor any of the
Subsidiaries shall take any action (or refrain from taking any action) which
will result in the Offerors or the Subsidiaries incurring any material liability
or obligation, direct or contingent, or enter into any material transaction,
except in the ordinary course of business, or take or refrain from taking any
action which will cause or result in any material adverse change in the
financial position, capital stock, or any material increase in long-term debt,
obligations under capital leases or short-term borrowings of the Offerors and
the Subsidiaries on a consolidated basis.
(m) Except as described in the Prospectus, the Offerors shall not, for
a period of 180 days after the date hereof, without the prior written consent of
the Representatives, purchase, redeem or call for redemption, or prepay or give
notice of prepayment (or announce any redemption or call for redemption, or any
repayment or notice of prepayment) of the Offerors' securities; provided,
however, that this shall not apply to repurchases by the Company of its common
stock.
(n) The Offerors shall not take, directly or indirectly, any action
designed to result in or which constitutes or which might reasonably be expected
to cause or result in stabilization or manipulation of the price of any security
of the Offerors in connection with the sale or resale of the Designated
Preferred Securities in violation of the Commission's rules and regulations,
including, but not limited to, Regulation M, and the Offerors are not aware of
any such action taken or to be taken by any affiliate of the Offerors.
(o) Prior to the Closing Date (and, if applicable, the Option Closing
Date), the Offerors will not issue any press release or other communication
directly or indirectly or hold any press conference with respect to the
Offerors, the Subsidiaries or the offering of the Designated Preferred
Securities without your prior consent.
(p) The Offerors shall comply with all registration, filing and
reporting requirements of the 1934 Act for so long as the Preferred Securities
or the Debentures shall remain outstanding.
5. Payment of Expenses.
Whether or not this Agreement is terminated or the sale of the Designated
Preferred Securities to the Underwriters is consummated, the Company covenants
and agrees that it will pay or cause to be paid (directly or by reimbursement)
all costs and expenses incident to the performance of the obligations of the
Offerors under this Agreement, including:
22
(a) the preparation, printing, filing, delivery and shipping of the
initial registration statement, each Preliminary Prospectus, the Registration
Statement and the Prospectus and any amendments or supplements thereto, and the
printing, delivery and shipping of this Agreement and any other underwriting
documents (including, without limitation, selected dealers agreements);
(b) all fees, expenses and disbursements of the Offerors' counsel and
accountants;
(c) all fees and expenses incurred in connection with the
qualification of the Designated Preferred Securities, Debentures and the
Guarantee under the securities or blue sky laws of such jurisdictions as you may
request, including all filing fees and fees and disbursements of counsel for the
Underwriters in connection therewith.
(d) all fees and expenses incurred in connection with filings made
with the NASD and DTC;
(e) any applicable fees and other expenses incurred in connection with
the listing of the Designated Preferred Securities and, if applicable, the
Guarantee and the Debentures on the Nasdaq National Market;
(f) the cost of furnishing to you copies of the initial registration
statements, any Preliminary Prospectus, the Registration Statement and the
Prospectus and all amendments or supplements thereto;
(g) the costs and charges of any transfer agent or registrar and the
fees and disbursements of counsel for any transfer agent or registrar;
(h) all costs and expenses (including stock transfer taxes) incurred
in connection with the printing, issuance and delivery of the Designated
Preferred Securities to the Underwriters;
(i) all expenses incident to the preparation, execution and delivery
of the Trust Agreement, the Indenture, the Guarantee and the Expense Agreement;
and
(j) all other costs and expenses incident to the performance of the
obligations of the Company hereunder and under the Trust Agreement that are not
otherwise specifically provided for in this Section 5.
If the sale of Designated Preferred Securities contemplated by this
Agreement is not completed due to termination pursuant to the terms hereof
(other than pursuant to Section 9 hereof), the Company will pay you your
accountable out-of-pocket expenses in connection herewith or in contemplation of
the performance of your obligations hereunder, including without limitation
travel expenses, fees, expenses and disbursements of counsel or other
out-of-pocket expenses incurred by you in connection with any discussion of the
Offering or the contents of the Registration Statement, any investigation of the
Offerors and the Subsidiaries, or any preparation for the marketing, purchase,
sale or delivery of the Designated Preferred Securities, in each case following
presentation of reasonably detailed invoices therefor.
If the sale of Designated Preferred Securities contemplated by this
Agreement is completed, the Company shall not be responsible for payment of fees
or disbursements of counsel for the Underwriters other than in accordance with
paragraph (c) above, or for the reimbursement of any expenses of the
Underwriters.
23
6. Conditions of the Underwriters' Obligations.
The obligations of the Underwriters to purchase and pay for the Firm
Preferred Securities and, following exercise of the option granted by the
Offerors in Section 1 of this Agreement, the Option Preferred Securities, are
subject, in your sole discretion, to the accuracy of the representations and
warranties and compliance with the agreements of the Offerors herein as of the
date hereof and as of the Closing Date (or in the case of the Option Preferred
Securities, if any, as of the Option Closing Date), to the accuracy of the
written statements of the Offerors made pursuant to the provisions hereof, to
the performance by the Offerors of their covenants and obligations hereunder and
to the following additional conditions:
(a) If the Registration Statement or any amendment thereto filed prior
to the Closing Date has not been declared effective prior to the time of
execution hereof, the Registration Statement shall become effective not later
than 10:00 a.m., St. Louis time, on the first business day following the time of
execution of this Agreement, or at such later time and date as you may agree to
in writing. If required, the Prospectus and any amendment or supplement thereto
shall have been timely filed in accordance with Rule 424(b) and Rule 430A under
the 1933 Act and Section 4(a) hereof. No stop order suspending the effectiveness
of the Registration Statement or any amendment or supplement thereto shall have
been issued under the 1933 Act or any applicable state securities laws and no
proceedings for that purpose shall have been instituted or shall be pending, or,
to the knowledge of the Offerors or the Representatives, shall be contemplated
by the Commission or any state authority. Any request on the part of the
Commission or any state authority for additional information (to be included in
the Registration Statement or Prospectus or otherwise) shall have been disclosed
to you and complied with to your satisfaction and to the satisfaction of counsel
for the Underwriters.
(b) No Underwriter shall have advised the Company at or before the
Closing Date (and, if applicable, the Option Closing Date) that the Registration
Statement or any post-effective amendment thereto, or the Prospectus or any
amendment or supplement thereto, contains an untrue statement of a fact which,
in your opinion, is material or omits to state a fact which, in your opinion, is
material and is required to be stated therein or is necessary to make statements
therein (in the case of the Prospectus or any amendment or supplement thereto,
in light of the circumstances under which they were made) not misleading. (c)
All corporate proceedings and other legal matters incident to the authorization,
form and validity of this Agreement, the Trust Agreement, and the Designated
Preferred Securities, and the authorization and form of the Registration
Statement and the Prospectus, other than financial statements and other
financial data, and all other legal matters relating to this Agreement and the
transactions contemplated hereby or by the Trust Agreement shall be satisfactory
in all material respects to counsel for the Underwriters, and the Offerors and
the Subsidiaries shall have furnished to such counsel all documents and
information relating thereto that they may reasonably request to enable them to
pass upon such matters.
(d) Bingham McHale, LLP, counsel for the Offerors, shall have
furnished to you their signed opinion, dated the Closing Date or the Option
Closing Date, as the case may be, in form and substance satisfactory to counsel
for the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly
existing under the laws of the State of Indiana, and is duly registered as
a bank holding company under the BHC Act. To the best of such counsel's
knowledge, the entities listed on Exhibit A are the only subsidiaries,
direct or indirect, of the Company. Each of the Subsidiaries is duly
incorporated or organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation
24
or organization, as the case may be. Each of the Company and the
Subsidiaries has full power (corporate or otherwise) and authority to own
or lease its properties and to conduct its business as such business is
currently conducted in all material respects. Each of the Company and the
Subsidiaries is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify
or to be in good standing would not result, individually or in the
aggregate, in a material adverse effect on the condition (financial or
otherwise), business, prospects or results of operations of the Company and
the Subsidiaries on a consolidated basis. To the best of such counsel's
knowledge, except as set forth on Exhibit A to the Agreement, all
outstanding shares of capital stock of the Subsidiaries are owned, directly
or indirectly, by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity, and none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of such
subsidiary, and, to the best of such counsel's knowledge, except as
disclosed in the Prospectus, there are no outstanding rights, options or
warrants to purchase any such shares or securities convertible into or
exchangeable for any such shares. For purposes of this opinion, the term
"Subsidiary" shall not include Independent Bankers' Life Reinsurance
Company of Indiana, Ltd.
(ii) The Debentures and Guarantee of the Company and the equity
securities of the Trust conform to the description thereof contained in the
Prospectus in all material respects. The authorized, issued and outstanding
capital stock of the Company is as set forth under the caption
"Capitalization" in the Prospectus (except for subsequent issuances, if
any, pursuant to the Underwriting Agreement, the Merger Agreement, the
Company's acquisitions in January, 2002 of two title insurance agencies, or
pursuant to reservations, agreements or employee benefit plans or programs
referred to in the Prospectus or pursuant to the Company's dividend
reinvestment plan). The capital stock of the Company has been duly
authorized and validly issued, and is fully paid and nonassesable. The form
of certificates to evidence the Designated Preferred Securities has been
approved by the Trust and is in due and proper form and complies with all
applicable requirements. To the best of such counsel's knowledge, there are
no outstanding rights, options or warrants to purchase, no other
outstanding securities convertible into or exchangeable for, and no
commitments, plans or arrangements to issue, any shares of capital stock of
the Company or equity securities of the Trust, except as described in the
Prospectus or pursuant to the Company's dividend reinvestment plan, and
none of the outstanding shares of capital stock of the Company was issued
in violation of the preemptive or other similar rights of any
securityholder of the Company.
(iii) The issuance, sale and delivery of the Designated Preferred
Securities and Debentures in accordance with the terms and conditions of
this Agreement and the Indenture have been duly authorized by all necessary
actions of the Offerors. All of the Designated Preferred Securities have
been duly and validly authorized and, when delivered and paid for in
accordance with this Agreement, will be duly and validly issued, fully paid
and nonassessable, and will conform to the description thereof in the
Registration Statement, the Prospectus and the Trust Agreement. The
Designated Preferred Securities have been approved for quotation on the
Nasdaq National Market subject to official notice of issuance. There are no
preemptive or other rights to subscribe for or to purchase, and other than
as disclosed in the Prospectus, no restrictions upon the voting or transfer
of, any equity securities of the Offerors pursuant to the corporate
charter, by-laws or other governing documents (including without
limitation, the Trust Agreement) of the Offerors, or, to the best of such
counsel's knowledge, any agreement or other instrument to which either
Offeror is a party or by which either Offeror may be bound.
25
(iv) The Offerors have all requisite corporate and trust power to
enter into and perform their obligations under this Agreement, and this
Agreement has been duly and validly authorized, executed and delivered by
the Offerors and constitutes the legal, valid and binding obligations of
the Offerors enforceable in accordance with its terms, except as the
enforcement hereof or thereof may be limited by general principles of
equity and by bankruptcy or other laws relating to or affecting creditors'
rights generally, and except as the indemnification and contribution
provisions hereof may be limited under applicable laws and certain remedies
may not be available in the case of a non-material breach.
(v) Each of the Indenture, the Trust Agreement and the Guarantee
has been duly qualified under the Trust Indenture Act, has been duly
authorized, executed and delivered by the Company, and is a valid and
legally binding obligation of the Company enforceable against the Company
in accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the rights and remedies of creditors generally and of general
principles of equity.
(vi) The Debentures have been duly authorized, executed, and
delivered by the Company and are legal, valid and binding obligations of
the Company enforceable against the Company in accordance with their terms,
subject to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights and remedies
of creditors generally and of general principles of equity. The holders of
the Debentures are entitled to the benefits of the Indenture pertaining to
holders of Debentures.
(vii) Each of the Expense Agreement and the Merger Agreement has
been duly authorized, executed and delivered by the Company, and is a valid
and legally binding obligation of the Company enforceable against the
Company in accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the rights and remedies of creditors generally and of general
principles of equity.
(viii) To the best of such counsel's knowledge, neither of the
Offerors nor any of the Subsidiaries is in breach or violation of, or
default under, with or without notice or lapse of time or both, its
corporate charter, by-laws or governing document (including without
limitation, the Trust Agreement). To the best of such counsel's knowledge,
no breach or default by the Company or any Subsidiary exists (nor has any
event occurred which with notice, lapse of time, or both, would result in a
breach of, or constitute a default under) in the due performance or
observance of any material obligation, agreement, covenant or condition
contained in any material contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease, franchise, license or any other
agreement or instrument to which either the Company or any Subsidiary is a
party or by which any of them or any of their respective properties may be
bound. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement, the Merger
Agreement, the Trust Agreement, the Indenture, the Guarantee or the other
agreements contemplated hereby or thereby do not and will not conflict
with, result in the creation or imposition of any material lien, claim,
charge, encumbrance or restriction upon any property or assets of the
Offerors or the Subsidiaries or the Designated Preferred Securities
pursuant to, or constitute a breach or violation of, or constitute a
default under, with or without notice or lapse of time or both, any of the
terms, provisions or conditions of the charter, by-laws or governing
document (including without limitation, the Trust Agreement) of the
Offerors or the Subsidiaries, or any material contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease, franchise,
license or any other agreement or instrument to which either Offeror or the
Subsidiaries is a party or by which any of them or any of their respective
properties may be bound or any order, decree, judgment, franchise, license,
26
Permit, rule or regulation of any court, arbitrator, government, or
governmental agency or instrumentality, domestic or foreign, known to such
counsel having jurisdiction over the Offerors or the Subsidiaries or any of
their respective properties which, in each case, is material to the
Offerors and the Subsidiaries on a consolidated basis.
(ix) To the best of such counsel's knowledge, holders of
securities of the Offerors do not have any right that, if exercised, would
require the Offerors to cause such securities to be included in the
Registration Statement or have waived such right. To the best of such
counsel's knowledge, neither the Company nor any of the Subsidiaries is a
party to any agreement or other instrument which grants rights for or
relating to the registration of any securities of the Offerors.
(x) To the best of such counsel's knowledge, no action, suit or
proceeding at law or in equity is pending or threatened against or
affecting the Offerors or the Subsidiaries or any of their properties,
before or by any court or governmental official, commission, board or other
administrative agency, authority or body, or any arbitrator, wherein an
unfavorable decision, ruling or finding could reasonably be expected to
have a material adverse effect on the consummation of this Agreement or the
issuance and sale of the Designated Preferred Securities as contemplated
herein or the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis or which is required to be disclosed
in the Registration Statement or the Prospectus and is not so disclosed.
(xi) No authorization, approval, consent or order of or filing,
registration or qualification with, any person (including without
limitation, any court, governmental body or authority) is required in
connection with the transactions contemplated by this Agreement, the Trust
Agreement, the Registration Statement and the Prospectus, except such as
have been obtained under the 1933 Act, the Trust Indenture Act and the
Nasdaq National Market with respect to listing matters, and except such as
may be required under state securities laws or Interpretations or Rules of
the NASD in connection with the purchase and distribution of the Designated
Preferred Securities by the Underwriters. All governmental and regulatory
authorizations, approvals, consents, orders and filings, registrations and
qualifications required in order to consummate the Merger have been
obtained or otherwise received.
(xii) Each of the Registration Statement, the Prospectus and the
Merger Proxy/Registration Statement and any amendments or supplements
thereto (other than the exhibits, financial statements or other financial
data included therein or omitted therefrom and Underwriters' Information,
as to which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations as of their respective dates of effectiveness or issuance. The
Company's Annual Report on Form 10-K and Current Report on Form 8-K
incorporated by reference in the Registration Statement and the Prospectus
(other than the exhibits, financial statements or other financial data
included therein or omitted therefrom, as to which such counsel need
express no opinion) comply as to form in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations as of their
respective dates of effectiveness or filing.
(xiii) To the best of such counsel's knowledge, there are no
contracts, agreements, leases or other documents of a character required to
be disclosed in the Registration Statement, Merger Proxy/Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement or Merger Proxy/Registration Statement that are not so disclosed
or filed.
27
(xiv) The statements under the captions "Risk Factors",
"Description of the Trust", "Description of the Preferred Securities,"
"Description of the Debentures," "Description of the Guarantee,"
"Relationship Among the Preferred Securities, the Debentures and the
Guarantee," "Certain Federal Income Tax Consequences," and "ERISA
Considerations" in the Prospectus and the statements under the captions
"Description of the Trusts", "Description of the Preferred Securities,"
"Description of the Debentures," "Description of the Guarantees,"
"Relationship Among the Preferred Securities, the Debentures and the
Guarantee," in the Base Prospectus and the statements under the captions
"Regulation and Supervision" in "Item 1. Business" and "Item 3. Legal
Proceedings" in the Company's Annual Report on Form 10-K for the year ended
December 31, 2001, incorporated by reference into the Prospectus, insofar
as such statements constitute a description of legal or regulatory matters,
documents or instruments referred to therein, are accurate descriptions of
the matters purported to be summarized therein in all material respects and
fairly present the information called for with respect to such legal or
regulatory matters, documents and instruments.
(xv) Such counsel has been advised by the staff of the Commission
that the Registration Statement has become effective under the 1933 Act;
any required filing of the Prospectus pursuant to Rule 424(b) has been made
within the time period required by Rule 424(b); to the best of such
counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for a stop order
are pending or threatened by the Commission.
(xvi) Except as disclosed in the Prospectus, there are no
material legal restrictions or, to the best knowledge of such counsel,
contractual encumbrances or restrictions required to be disclosed on the
ability of the Subsidiaries (A) to pay dividends or make any other
distributions on its capital stock or to pay indebtedness owed to the
Offerors, (B) to make any loans or advances to, or investments in, the
Offerors or (C) to transfer any of its property or assets to the Offerors.
(xvii) To the best of such counsel's knowledge, the Offerors and
the Subsidiaries possess and are operating in all material respects in
compliance with the terms, provisions and conditions of all Permits,
consents, licenses, franchises and governmental and regulatory
authorizations ("Authorizations") required to conduct their business as
currently conducted and which are material to the Offerors and the
Subsidiaries on a consolidated basis, except in those instances where the
loss thereof or non-compliance therewith would not have a material adverse
effect on the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis; to the best of such counsel's
knowledge, all such Authorizations are valid and in full force and effect,
and, to the best of such counsel's knowledge, no action, suit or proceeding
is pending or threatened which may lead to the revocation, termination,
suspension or non-renewal of any such Authorization, except in those
instances where the loss thereof or non-compliance therewith would not
materially impair the ability of the Offerors or the Subsidiaries to
conduct their businesses and would not have a material adverse effect on
the condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Offerors and the Subsidiaries on
a consolidated basis.
(xviii) Neither the Company nor the Trust is and, after giving
effect to the offering and sale of the Designated Preferred Securities and
the application of the proceeds thereof as described in the Prospectus,
neither the Company nor the Trust will be, an "investment company," an
entity "controlled" by an "investment company" or an "investment adviser"
as defined in the Investment Company Act and the Investment Advisers Act.
28
In giving the above opinion, such counsel may state that, insofar as such
opinion involves factual matters, they have relied upon certificates of officers
of the Offerors including, without limitation, certificates as to the identity
of any and all material contracts, indentures, mortgages, deeds of trust, loans
or credit agreements, notes, leases, franchises, licenses or other agreements or
instruments, and all material permits, easements, consents, licenses, franchises
and government regulatory authorizations, for purposes of paragraphs (viii) and
(xvii) hereof, and certificates of public officials. In giving such opinion,
such counsel may rely upon the opinion of Richards, Layton & Finger, special
Delaware counsel to the Offerors as to certain matters relating to the Trust and
the Designated Preferred Securities which are governed by Delaware law.
Such counsel shall also confirm that, in connection with the preparation of
the Registration Statement and Prospectus, such counsel has participated in
conferences with officers and representatives of the Offerors and with their
independent public accountants and with you and your counsel, at which
conferences such counsel made inquiries of such officers, representatives and
accountants and discussed in detail the contents of the Registration Statement,
the Prospectus and the Merger Proxy/Registration Statement and the documents
incorporated therein by reference and such counsel has no reason to believe (A)
that the Registration Statement and the Merger Proxy/Registration Statement or
any amendment thereto (except for the financial statements and related schedules
included therein or omitted therefrom or Underwriters' Information, as to which
such counsel need express no opinion), at the time the Registration Statement
and the Merger Proxy/Registration Statement or any such amendment became
effective, contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading or (B) that the Prospectus or any amendment or
supplement thereto and the documents incorporated therein by reference (except
for the financial statements and related schedules included therein or omitted
therefrom or Underwriters' Information, as to which such counsel need express no
opinion), at the time the Registration Statement became effective (or, if the
term "Prospectus" refers to the prospectus first filed pursuant to Rule 424(b)
of the 1933 Act Regulations, at the time the Prospectus was issued), at the time
any such amended or supplemented Prospectus was issued, at the Closing Date and,
if applicable, the Option Closing Date, contained or contains any untrue
statement of a material fact or omitted or omits to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading or (C)
that there is any amendment to the Registration Statement and the Merger
Proxy/Registration Statement required to be filed that has not already been
filed.
(e) Richards, Layton & Finger, special Delaware counsel to the
Offerors, shall have furnished to you their signed opinion, dated as of Closing
Date or the Option Closing Date, as the case may be, in form and substance
satisfactory to such counsel, to the effect that:
(i) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act
and, under the Trust Agreement and the Delaware Business Trust Act, has the
trust power and authority to conduct its business as described in the
Prospectus.
(ii) The Trust has all requisite trust power to enter into and
perform its obligations under this Agreement. The Trust Agreement is a
legal, valid and binding agreement of the Company, as sponsor, and the
Trustees, and is enforceable against the Company, as sponsor, and the
Trustees, in accordance with its terms.
(iii) Under the Trust Agreement and the Delaware Business Trust
Act, this Agreement and its execution and delivery by the Trust, and the
performance by the Trust of its obligations thereunder, have been
authorized by all requisite trust action on the part of the Trust.
29
(iv) The issuance, sale and delivery of the Designated Preferred
Securities in accordance with the Trust Agreement have been duly authorized
by all necessary action of the Trust. The Designated Preferred Securities
have been duly and validly authorized by the Trust Agreement, and when
issued and sold in accordance with the Trust Agreement, the Designated
Preferred Securities will be, subject to the qualifications set forth in
paragraph (v) below, fully paid and nonassessable beneficial interest in
the assets of the Trust and entitled to the benefits of the Trust
Agreement. The form of certificate to evidence the Designated Preferred
Securities has been approved by the Trust and is in due and proper form and
complies with all applicable requirements of the Delaware Business Trust
Act.
(v) Holders of Designated Preferred Securities, as beneficial
owners of the Trust, will be entitled to the same limitation of personal
liability extended to shareholders of private, for-profit corporations
organized under the General Corporation Law of the State of Delaware. Such
opinion may note that the holders of Designated Preferred Securities may be
obligated to make payments as set forth in the Trust Agreement.
(vi) Under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Designated Preferred Securities is not
subject to preemptive rights or other similar rights.
(vii) The issuance and sale by the Trust of the Designated
Preferred Securities and the Common Securities, the execution, delivery and
performance by the Trust of this Agreement, and the consummation of the
transactions contemplated by this Agreement, do not violate (a) the Trust
Agreement, or (b) any applicable Delaware law, rule or regulation.
Such opinion may state that it is limited to the laws of the State of
Delaware and that the opinion expressed in paragraph (ii) above is subject to
the effect upon the Trust Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance and other
similar laws relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution.
(f) Lewis, Rice & Fingersh, L.C., counsel for the Underwriters, shall
have furnished you their signed opinion, dated the Closing Date or the Option
Closing Date, as the case may be, with respect to the sufficiency of all
corporate procedures and other legal matters relating to this Agreement, the
validity of the Designated Preferred Securities, the Registration Statement, the
Prospectus and such other related matters as you may reasonably request and
there shall have been furnished to such counsel such documents and other
information as they may request to enable them to pass on such matters. In
giving such opinion, Lewis, Rice & Fingersh, L.C. may rely as to matters of fact
upon statements and certifications of officers of the Offerors and of other
appropriate persons and may rely as to matters of law, other than law of the
United States and the State of Missouri, and upon the opinions of Bingham McHale
LLP and Richards, Layton & Finger described herein.
(g) On the date of this Agreement and on the Closing Date (and, if
applicable, any Option Closing Date), the Representatives shall have received
from BKD LLP and Crowe, Chizek and Company LLP letters, dated the date of this
Agreement and the Closing Date (and, if applicable, the Option Closing Date),
respectively, in form and substance satisfactory to the Representatives,
confirming that, with respect to BKD LLP, they are independent public
accountants with respect to the Company and the Subsidiaries, within the meaning
of the 1933 Act and the 1933 Act Regulations and, with respect to Crowe, Chizek
and Company, LLP, they are independent public accountants with respect to
Lafayette and
30
its subsidiaries within the meaning of the 1933 Act and the 1933 Act
Regulations, and each stating in effect that:
(i) In their opinion, the consolidated financial statements of
the Company or Lafayette, as the case may be, audited by them and included
or incorporated by reference in the Registration Statement comply as to
form in all material respects with the applicable accounting requirements
of the 1933 Act, the 1934 Act, the 1933 Act Regulations and the 1934 Act
Regulations.
(ii) On the basis of limited procedures, not constituting an
audit in accordance with U.S. generally accepted auditing standards,
consisting of a reading of the unaudited interim financial statements and
other information referred to below, a reading of the latest available
unaudited condensed consolidated financial statements of the Company or
Lafayette, as the case may be, inspection of the minute books of the
Company or Lafayette, as the case may be, since the date of the latest
audited financial statements of the Company or Lafayette, as the case may
be, included or incorporated by reference in the Registration Statement,
inquiries of officials of the Company or Lafayette, as the case may be,
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the consolidated
capital stock of the Company or Lafayette, as the case may be, any increase
in the consolidated debt of the Company or Lafayette, as the case may be,
or any decreases in consolidated total assets or consolidated shareholders'
equity of the Company or Lafayette, as the case may be, or any changes,
decreases or increases in other items specified by the Representatives, in
each case as compared with amounts shown in the latest consolidated
statement of financial condition of the Company or Lafayette, as the case
may be, included or incorporated by reference in the Registration Statement
except in each case for changes, increases or decreases which the
Registration Statement specifically discloses have occurred or may occur or
which are described in such letter; and
(B) for the period from the date of the latest consolidated
financial statements of the Company or Lafayette, as the case may be,
included or incorporated by reference in the Registration Statement to the
specified date referred to in clause (iii)(A), there were any decreases in
the consolidated interest income, net interest income or net income of the
Company or Lafayette, as the case may be, or in the per share amount of net
income of the Company or Lafayette, as the case may be, or any changes,
decreases or increases in other items specified by the Representatives as
compared with the comparable period of the preceding year and with any
other period of corresponding length specified by the Representatives,
except in each case for increases or decreases which the Registration
Statement discloses have occurred or may occur, or which are described in
such letter.
(iii) In addition to the audit referred to in their report
included or incorporated by reference in the Registration Statement and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraph (ii) above, they have carried out
certain specified procedures, not constituting an audit in accordance with
U.S. generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records and
consolidated financial statements of the Company or Lafayette, as the case
may be, which appear in the Registration Statement and the documents
incorporated by reference therein specified by the Representatives, and
have compared such amounts, percentages and financial information
31
with the accounting records and the material derived from such records and
consolidated financial statements of the Company or Lafayette, as the case
may be, have found them to be in agreement.
(iv) With respect to the pro forma financial information which
appear in the Registration Statement and the documents incorporated by
reference therein, BKD LLP shall provide the information contemplated in,
and comment upon the matters described in, Example D "Comments on Pro Forma
Information" included in SAS No. 72 "Letters for Underwriters and Certain
Other Requesting Parties."
In the event that the letter to be delivered on the date hereof, on the
Closing Date (and, if applicable, any Option Closing Date) referred to above set
forth any such changes, decreases or increases as specified in clauses (ii)(A)
or (ii)(B) above, or any exceptions from such agreement specified in clause
(iii) above, it shall be a further condition to the obligations of the
Underwriters that the Representatives shall have determined, after discussions
with officers of the Company responsible for financial and accounting matters,
that such changes, decreases, increases or exceptions as are set forth in such
letters do not (x) reflect a material adverse change in the items specified in
clause (ii)(A) above as compared with the amounts shown in the latest
consolidated statement of financial condition of the Company or Lafayette, as
the case may be, included or incorporated by reference in the Registration
Statement, (y) reflect a material adverse change in the items specified in
clause (ii)(B) above as compared with the corresponding periods of the prior
year or other period specified by the Representatives, or (z) reflect a material
adverse change in items specified in clause (iii) above from the amounts shown
in the Preliminary Prospectus distributed by the Underwriters in connection with
the offering contemplated hereby or from the amounts shown in the Prospectus.
(h) At the Closing Date and, if applicable, the Option Closing Date,
you shall have received certificates of the chief executive officer and the
chief financial and accounting officer of the Company, which certificates shall
be deemed to be made on behalf of the Company, dated as of the Closing Date and,
if applicable, the Option Closing Date, evidencing satisfaction of the
conditions of Section 6(a) and stating that (i) the representations and
warranties of the Company set forth in Section 2 hereof are accurate as of the
Closing Date and, if applicable, the Option Closing Date, and that each of the
Offerors has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to such Closing Date and, if
applicable, the Option Closing Date; (ii) since the respective dates as of which
information is given in the Registration Statement and the Prospectus, there has
not been any material adverse change in the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the Company
and the Subsidiaries on a consolidated basis; (iii) since such dates there has
not been any material transaction entered into by the Offerors or the
Subsidiaries other than transactions in the ordinary course of business; and
(iv) they have carefully examined the Registration Statement and the Prospectus
as amended or supplemented and nothing has come to their attention that would
lead them to believe that either the Registration Statement or the Prospectus,
or any amendment or supplement thereto as of their respective effective or issue
dates, contained, and the Prospectus as amended or supplemented at such Closing
Date (and, if applicable, the Option Closing Date), contains any untrue
statement of a material fact, or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein (in the case
of the Prospectus, in the light of the circumstances under which they were made)
not misleading; and (v) covering such other matters as you may reasonably
request. The officers' certificate of the Company shall further state that no
stop order affecting the Registration Statement is in effect or, to their
knowledge, threatened.
(i) At the Closing Date and, if applicable, the Option Closing Date,
you shall have received a certificate of an authorized representative of the
Trust to the effect that to the best of his or her knowledge based upon a
reasonable investigation, the representations and warranties of the Trust in
this
32
Agreement are true and correct as though made on and as of the Closing Date
(and, if applicable, the Option Closing Date); the Trust has complied with all
the agreements and satisfied all the conditions required by this Agreement to be
performed or satisfied by the Trust on or prior to the Closing Date, and since
the most recent date as of which information is given in the Prospectus, except
as described in the Prospectus, the Trust has not incurred any material
liabilities or obligations, direct or contingent, or entered into any material
transactions not in the ordinary course of business and there has not been any
material adverse change in the condition (financial or otherwise) of the Trust.
(j) On the Closing Date, all conditions precedent under each of the
Merger Agreement, the Trust Agreement, the Guarantee, the Indenture and the
Expense Agreement, other than delivery of the Merger consideration, shall have
been satisfied or duly waived, and you shall have received copies of all
documentation required to evidence same.
(k) The NASD, upon review of the terms of the public offering of the
Designated Preferred Securities, shall not have objected to the Underwriters'
participation in such offering.
(l) Prior to the Closing Date and, if applicable, the Option Closing
Date, the Offerors shall have furnished to you and counsel for the Underwriters
all such other documents, certificates and opinions as they have reasonably
requested.
All opinions, certificates, letters and other documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you. The Offerors shall furnish you with conformed
copies of such opinions, certificates, letters and other documents as you shall
reasonably request.
If any of the conditions referred to in this Section 6 shall not have been
fulfilled when and as required by this Agreement, this Agreement and all of the
Underwriters' obligations hereunder may be terminated by you on notice to the
Company at, or at any time before, the Closing Date or the Option Closing Date,
as applicable. Any such termination shall be without liability of the
Underwriters to the Offerors.
7. Indemnification and Contribution.
(a) The Offerors jointly and severally agree to indemnify and hold
harmless each Underwriter, each of its directors, officers and agents, and each
person, if any, who controls any Underwriter within the meaning of the 1933 Act,
against any and all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and attorneys fees and expenses), joint or
several, arising out of or based upon (i) any untrue statement or alleged untrue
statement of a material fact made by or on behalf of the Company or the Trust
contained in Section 2 of this Agreement (or any certificate delivered by or on
behalf of the Company or the Trust pursuant to Sections 6(h), 6(i) and 6(l)
hereto) or in the registration statement as originally filed or the Registration
Statement, the Base Prospectus, any Preliminary Prospectus, the Prospectus or
the Merger Proxy/Registration Statement, or in any amendment or supplement
thereto, (ii) any omission or alleged omission to state a material fact in the
registration statement as originally filed or the Registration Statement, the
Base Prospectus, any Preliminary Prospectus, the Prospectus or the Merger
Proxy/Registration Statement, or in any amendment or supplement thereto,
required to be stated therein or necessary to make the statements therein not
misleading, and against any and all losses, claims, damages, liabilities and
expenses (including reasonable costs of investigation and attorneys fees), joint
or several, arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the Base Prospectus, any Preliminary
Prospectus, the Prospectus or the Merger Proxy/Registration Statement, or in any
amendment or supplement thereto, or arising out of or based upon any omission or
alleged omission to state therein a
33
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading or (iii) the enforcement of this indemnification provision or the
contribution provisions of Section 7(d); and shall reimburse each such
indemnified party for any reasonable legal or other expenses as incurred, but in
no event less frequently than 30 days after each invoice is submitted, incurred
by them in connection with investigating or defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability
or action, notwithstanding the possibility that payments for such expenses might
later be held to be improper, in which case such payments shall be promptly
refunded; provided, however, that the Offerors shall not be liable in any such
case to the extent, but only to the extent, that any such losses, claims,
damages, liabilities and expenses arise out of or are based upon any untrue
statement or omission or allegation thereof that has been made therein or
omitted therefrom in reliance upon and in conformity with the Underwriters'
Information. The foregoing indemnity agreement is in addition to any liability
the Company or the Trust may otherwise have to any such indemnified party.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless each Offeror, each of the Company's directors, each of the
Company's officers who signed the Registration Statement, each of the
Administrative Trustees of the Trust and each person, if any, who controls an
Offeror within the meaning of the 1933 Act, to the same extent as required by
the foregoing indemnity from the Company to each Underwriter, but only with
respect to the Underwriters' Information. The foregoing indemnity agreement is
in addition to any liability which any Underwriter may otherwise have to any
such indemnified party.
(c) If any action or claim shall be brought or asserted against any
indemnified party or any person controlling an indemnified party in respect of
which indemnity may be sought from the indemnifying party, such indemnified
party or controlling person shall promptly notify the indemnifying party in
writing, and the indemnifying party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all expenses; provided, however, that the failure so to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under such paragraph, and further, shall
only relieve it from liability under such paragraph to the extent prejudiced
thereby. Any indemnified party or any such controlling person shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such indemnified party or such controlling person unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) the indemnifying party has failed to assume the defense or to
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
such indemnified party or such controlling person and the indemnifying party and
such indemnified party or such controlling person shall have been advised by
such counsel that there may be one or more legal defenses available to it that
are different from or in addition to those available to the indemnifying party
(in which case, if such indemnified party or controlling person notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party
or such controlling person) it being understood, however, that the indemnifying
party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys at any time and for all
such indemnified party(ies) and controlling persons, which firm shall be
designated in writing by the indemnified party(ies) (and, if such indemnified
parties are Underwriters, by you, as Representatives). Each indemnified party
and each controlling person, as a condition of such indemnity, shall use
reasonable efforts to cooperate with the indemnifying party in the defense of
any such action or claim. The indemnifying party shall not be liable for any
settlement of any such action effected without its written consent, but if there
shall be a final judgment for the plaintiff in
34
any such action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party and any such controlling person from and against any loss,
claim, damage, liability or expense by reason of such settlement or judgment.
An indemnifying party shall not, without the prior written consent of each
indemnified party, settle, compromise or consent to the entry of any judgment in
any pending or threatened claim, action, suit or proceeding in respect of which
indemnity may be sought hereunder (whether or not such indemnified party or any
person who controls such indemnified party within the meaning of the 1933 Act is
a party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes a release of each such indemnified party
reasonably satisfactory to each such indemnified party and each such controlling
person from all liability arising out of such claim, action, suit or proceeding
or unless the indemnifying party shall confirm in a written agreement with each
indemnified party, that notwithstanding any federal, state or common law, such
settlement, compromise or consent shall not alter the right of any indemnified
party or controlling person to indemnification or contribution as provided in
this Agreement.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
paragraphs (a), (b) or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Offerors on the one hand and the
Underwriters on the other from the offering of the Designated Preferred
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Offerors on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Offerors on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Designated
Preferred Securities (before deducting expenses) received by the Offerors bear
to the total underwriting discounts, commissions and compensation received by
the Underwriters, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault of the Offerors on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Offerors or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Offerors and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this paragraph
(d) were determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in the first sentence of
this paragraph (d) shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Designated Preferred Securities underwritten by such
Underwriter and distributed to the public were offered to the public exceeds the
amount of any damages that such Underwriters has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
35
For purposes of this paragraph (d), each person who controls an Underwriter
within the meaning of the 1933 Act shall have the same rights to contribution as
such Underwriter, and each person who controls an Offeror within the meaning of
the 1933 Act, each officer and trustee of an Offeror who shall have signed the
Registration Statement and each director of an Offeror shall have the same
rights to contribution as the Offerors subject in each case to the preceding
sentence. The obligations of the Offerors under this paragraph (d) shall be in
addition to any liability which the Offerors may otherwise have and the
obligations of the Underwriters under this paragraph (d) shall be in addition to
any liability that the Underwriters may otherwise have.
(e) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Offerors set forth in
this Agreement shall remain operative and in full force and effect, regardless
of (i) any investigation made by or on behalf of any Underwriter or any person
controlling an Underwriter or by or on behalf of the Offerors, or such
directors, trustees or officers (or any person controlling an Offeror), (ii)
acceptance of any Designated Preferred Securities and payment therefor hereunder
and (iii) any termination of this Agreement. A successor of any Underwriter or
of an Offeror, such directors, trustees or officers (or of any person
controlling an Underwriter or an Offeror) shall be entitled to the benefits of
the indemnity, contribution and reimbursement agreements contained in this
Section 7.
(f) The Company agrees to indemnify the Trust against any and all
losses, claims, damages or liabilities that may become due from the Trust under
this Section 7.
8. Termination.
You shall have the right to terminate this Agreement at any time at or
prior to the Closing Date or, with respect to the Underwriters' obligation to
purchase the Option Preferred Securities, at any time at or prior to the Option
Closing Date, without liability on the part of the Underwriters to the Offerors,
if:
(a) Either Offeror shall have failed, refused, or been unable to
perform any agreement on its part to be performed under this Agreement, or any
of the conditions referred to in Section 6 shall not have been fulfilled, when
and as required by this Agreement;
(b) The Offerors or any of the Subsidiaries shall have sustained any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree which in the judgment of the
Representatives materially impairs the investment quality of the Designated
Preferred Securities;
(c) There has been since the respective dates as of which information
is given in the Registration Statement or the Prospectus, any materially adverse
change in, or any development which in your reasonable judgment is reasonably
likely to have a material adverse effect on, the condition (financial or
otherwise), earnings, affairs, business, prospects or results of operations of
the Offerors and the Subsidiaries on a consolidated basis, whether or not
arising in the ordinary course of business;
(d) There has occurred any outbreak or escalation of hostilities or
other calamity or crisis (including, without limitation, an act of terrorism) or
material change in general economic, political or financial conditions, or
internal conditions, the effect of which on the financial markets of the United
States is such as to make it, in your reasonable judgment, impracticable to
market the Designated Preferred Securities or enforce contracts for the sale of
the Designated Preferred Securities;
36
(e) Trading generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, by any of said exchanges or
market system or by the Commission or any other governmental authority; or
(f) A banking moratorium shall have been declared by either federal,
New York or Indiana authorities; or
(g) Any action shall have been taken by any government in respect of
its monetary affairs which, in your reasonable judgment, has a material adverse
effect on the United States securities markets so as to make it, in your
reasonable judgment, impracticable to market the Designated Preferred Securities
or to enforce contracts for the sale of the Designated Preferred Securities.
If this Agreement shall be terminated pursuant to this Section 8, the
Offerors shall not then be under any liability to the Underwriters except as
provided in Sections 5 and 7 hereof.
9. Default of Underwriters.
If any Underwriter or Underwriters shall default in its or their
obligations to purchase Designated Preferred Securities hereunder, the other
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Designated Preferred Securities which
such defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that the non-defaulting Underwriters shall be under no
obligation to purchase such Designated Preferred Securities if the aggregate
number of Designated Preferred Securities to be purchased by such non-defaulting
Underwriters shall exceed 110% of the aggregate underwriting commitments set
forth in Schedule I hereto, and provided further, that no non-defaulting
Underwriter shall be obligated to purchase Designated Preferred Securities to
the extent that the number of such Designated Preferred Securities is more than
110% of such Underwriter's underwriting commitment set forth in Schedule I
hereto.
In the event that the non-defaulting Underwriters are not obligated under
the above paragraph to purchase the Designated Preferred Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase, the
Representatives may in their discretion arrange for one or more of the
Underwriters or for another party or parties to purchase such Designated
Preferred Securities on the terms contained herein. If within one business day
after such default the Representatives do not arrange for the purchase of such
Designated Preferred Securities, then the Company shall be entitled to a further
period of one business day within which to procure another party or parties
satisfactory to the Representatives to purchase such Designated Preferred
Securities on such terms.
In the event that the Representatives or the Company do not arrange for the
purchase of any Designated Preferred Securities to which a default relates as
provided above, this Agreement shall be terminated.
If the remaining Underwriters or substituted underwriters are required
hereby or agree to take up all or a part of the Designated Preferred Securities
of a defaulting Underwriter or Underwriters as provided in this Section 9, (i)
you shall have the right to postpone the Closing Date for a period of not more
than five full business days, in order to effect any changes that, in the
opinion of counsel for the Underwriters or the Company, may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or agreements, and the Company agrees promptly to file any amendments
to the Registration Statement or supplements to the Prospectus which, in its
opinion, may thereby be made necessary and (ii) the respective numbers of
Designated Preferred Securities to be purchased by the remaining Underwriters or
substituted underwriters shall be taken as the basis of their
37
underwriting obligation for all purposes of this Agreement. Nothing herein
contained shall relieve any defaulting Underwriter of any liability it may have
for damages occasioned by its default hereunder. Any termination of this
Agreement pursuant to this Section 9 shall be without liability on the part of
any non-defaulting Underwriter or the Company, except for expenses to be paid or
reimbursed pursuant to Section 5 and except for the provisions of Section 7.
10. Effective Date of Agreement.
If the Registration Statement is not effective at the time of execution of
this Agreement, this Agreement shall become effective on the Effective Date at
the time the Commission declares the Registration Statement effective. The
Company shall immediately notify the Underwriters when the Registration
Statement becomes effective.
If the Registration Statement is effective at the time of execution of this
Agreement, this Agreement shall become effective at the earlier of 11:00 a.m.
St. Louis time, on the first full business day following the day on which this
Agreement is executed, or at such earlier time as the Representatives shall
release the Designated Preferred Securities for initial public offering. The
Representatives shall notify the Offerors immediately after they have taken any
action which causes this Agreement to become effective.
Until such time as this Agreement shall have become effective, it may be
terminated by the Offerors, by notifying you or by you, as Representatives of
the several Underwriters, by notifying either Offeror, except that the
provisions of Sections 5 and 7 shall at all times be effective.
11. Representations, Warranties and Agreements to Survive Delivery.
The representations, warranties, indemnities, agreements and other
statements of the Offerors and their officers and trustees set forth in or made
pursuant to this Agreement and the agreements of the Underwriters contained in
Section 7 hereof shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of the Offerors or controlling persons
of either Offeror, or by or on behalf of the Underwriters or controlling persons
of the Underwriters or any termination or cancellation of this Agreement and
shall survive delivery of and payment for the Designated Preferred Securities.
12. Notices.
Except as otherwise provided in this Agreement, all notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered by hand, mailed by registered or certified mail, return
receipt requested, or transmitted by any standard form of telecommunication and
confirmed. Notices to Offerors shall be sent to 200 East Jackson Street, Muncie,
Indiana 47305, Attention: Michael L. Cox (with a copy to Bingham McHale LLP, 10
West Market Street, Indianapolis, Indiana 46204, Attention: David R. Prechtel,
Esq.) and notices to the Underwriters shall be sent to Stifel, Nicolaus &
Company, Incorporated, 501 North Broadway, 9th Floor, St. Louis, Missouri 63102,
Attention: Rick E. Maples (with a copy to Lewis, Rice & Fingersh, L.C., 500
North Broadway, Suite 2000, St. Louis, Missouri 63102, Attention: Thomas C. Erb,
Esq.). In all dealings with the Company under this Agreement, Stifel, Nicolaus &
Company, Incorporated shall act as representative of and on behalf of the
several Underwriters, and the Company shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of the Underwriters, made or
given by Stifel, Nicolaus & Company, Incorporated on behalf of the Underwriters,
as if the same shall have been made or given in writing by the Underwriters.
38
13. Parties.
The Agreement herein set forth is made solely for the benefit of the
Underwriters and the Offerors and, to the extent expressed, directors, trustees
and officers of the Offerors, any person controlling the Offerors or the
Underwriters, and their respective successors and assigns. No other person shall
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, in his status as such
purchaser, from the Underwriters of the Designated Preferred Securities.
14. Governing Law.
This Agreement shall be governed by the laws of the State of Missouri,
without giving effect to the choice of law or conflicts of law principles
thereof.
15. Authority.
Any certificate signed by an authorized officer of the Company or the Trust
and delivered to the Representatives or to counsel for the Underwriters pursuant
to this Agreement shall be deemed a representation and warranty by the Company
and the Trust to the Underwriters as to the matters covered thereby.
39
16. Counterparts.
This Agreement may be executed by facsimile and in one or more
counterparts, and when a counterpart has been executed by each party hereto all
such counterparts taken together shall constitute one and the same Agreement.
Signatures appear on the next page
40
If the foregoing is in accordance with the your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
shall become a binding agreement between the Company, the Trust and you in
accordance with its terms.
Very truly yours,
FIRST MERCHANTS CORPORATION
By: /s/ Larry R. Helms
---------------------------
Name: Larry R. Helms
-------------------------
Title: Senior Vice President
------------------------
FIRST MERCHANTS CAPITAL TRUST I
By: /s/ Larry R. Helms
---------------------------
Name: Larry R. Helms
-------------------------
Title: Administrative Trustee
-------------------------
CONFIRMED AND ACCEPTED,
as of the date first above written
STIFEL, NICOLAUS & COMPANY, INCORPORATED
By: /s/ Patrick R. Koster
-------------------------
Name:
-----------------------
Title:
----------------------
For itself and as co-Representative
of the several Underwriters named in
Schedule I hereto.
RBC DAIN RAUSCHER INC.
By: /s/ Mark W. Biche
-------------------------
Name: Mark W. Biche
-----------------------
Title: Managing Director
----------------------
For itself and as co-Representative
of the several Underwriters named in
Schedule I hereto.
41
SCHEDULE I
Underwriter Number of Securities
Stifel, Nicolaus & Company, Incorporated...........................858,000
RBC Dain Rauscher Inc..............................................572,000
A.G. Edwards & Sons, Inc............................................40,000
Bear, Stearns & Co. Inc.............................................40,000
Friedman, Billings, Ramsey & Co., Inc...............................40,000
Prudential Securities Incorporated..................................40,000
Advest, Inc.........................................................20,000
BB&T Capital Markets, a division of Scott &
Stringfellow, Inc................................................20,000
City Securities Corporation.........................................20,000
D.A. Davidson & Co..................................................20,000
Fahnestock & Co. Inc................................................20,000
Ferris, Baker Watts, Inc............................................20,000
Howe Barnes Investments, Inc........................................20,000
Janney Montgomery Scott LLC.........................................20,000
NatCity Investments, Inc............................................20,000
Sandler O'Neill & Partners, L.P.....................................20,000
Stephens Inc........................................................20,000
Utendahl Capital Partners, L.P......................................20,000
David A. Noyes & Company.............................................5,000
Redwine & Company, Inc...............................................5,000
Smith, Moore & Co....................................................5,000
Wunderlich Securities Inc............................................5,000
Total............................................................1,850,000
EXHIBIT A
LIST OF SUBSIDIARIES
Decatur Bank & Trust Company
First Merchants Bank, National Association
First Merchants Insurance Services, Inc.
First Merchants Reinsurance Co. Ltd. (First Merchants Corporation owns 79%)
The First National Bank of Portland
First United Bank
Frances Slocum Bank & Trust Company
The Madison Community Bank
The Randolph County Bank
The Union County National Bank of Liberty
First Merchants Capital Trust I
First Merchants Capital Trust II
First Merchants Capital Trust III
Indiana Title Insurance Company
Indiana Title Insurance Company, LLC
(First Merchants Corporation owns, indirectly, 52.12%)
Lafayette Bank and Trust Company
Independent Bankers' Life Reinsurance Company of Indiana, Ltd.
(First Merchants Corporation owns, indirectly, 8.54%) (sale pending)
EXHIBIT 4.1
CERTIFICATE OF TRUST
OF
FIRST MERCHANTS CAPITAL TRUST I
This Certificate of Trust is being executed as of December 12, 2001 for the
purposes of organizing a business trust pursuant to the Delaware Business Trust
Act, 12 Del. C.ss.ss.3801 et seq. (the "Act").
The undersigned hereby certifies as follows:
1. Name. The name of the business trust is "First Merchants Capital Trust I"
(the "Trust").
2. Delaware Trustee. The name and business address of the Delaware trustee of
the Trust meeting the requirements of Section 3807 of the Act are as
follows:
First Union Trust Company,
National Association
One Rodney Square 920
King Street
Suite 102
Wilmington, Delaware 19801
Attention: Corporate Trust Trustee Administration
3. Effective. This Certificate of Trust shall be effective immediately upon
filing in the Office of the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned being all of the trustees of the Trust,
have duly executed this Certificate of Trust as of the day and year first above
written.
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION
as Delaware Trustee
By: /s/ Edward L. Truitt, Jr.
--------------------------------
Name: Edward L. Truitt, Jr.
--------------------------
Title: Vice President
--------------------------
-1-
ADMINISTRATIVE TRUSTEE
/s/ Michael L. Cox
- -----------------------------------
Michael L. Cox
ADMINISTRATIVE TRUSTEE
/s/ Larry R. Helms
- -----------------------------------
Larry R. Helms, Esq.
ADMINISTRATIVE TRUSTEE
/s/ Mark K. Hardwick
- -----------------------------------
Mark K. Hardwick
-2-
EXHIBIT 4.2
FIRST MERCHANTS CAPITAL TRUST I
AMENDED AND RESTATED
TRUST AGREEMENT
among
First Merchants Corporation,
as Depositor,
Wachovia Trust Company, National Association
(formerly known as First Union Trust Company, National Association),
as Property Trustee and Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of April 17, 2002
TABLE OF CONTENTS
PAGE
----
ARTICLE I DEFINED TERMS..........................................................................................1
1.1 Definitions....................................................................................1
ARTICLE II ESTABLISHMENT OF THE TRUST...........................................................................10
2.1 Name..........................................................................................10
2.2 Office of the Delaware Trustee; Principal Place of Business...................................10
2.3 Initial Contribution of Trust Property; Organizational Expenses...............................10
2.4 Issuance of the Preferred Securities..........................................................10
2.5 Issuance of the Common Securities; Subscription and Purchase of Debentures....................11
2.6 Declaration of Trust..........................................................................11
2.7 Authorization to Enter into Certain Transactions..............................................12
2.8 Assets of Trust...............................................................................16
2.9 Title to Trust Property.......................................................................16
ARTICLE III PAYMENT ACCOUNT.....................................................................................16
3.1 Payment Account...............................................................................16
ARTICLE IV DISTRIBUTIONS; REDEMPTION............................................................................17
4.1 Distributions.................................................................................17
4.2 Redemption....................................................................................18
4.3 Subordination of Common Securities............................................................20
4.4 Payment Procedures............................................................................21
4.5 Tax Returns and Reports.......................................................................21
4.6 Payment of Taxes, Duties, etc. of the Trust...................................................21
4.7 Payments Under Indenture......................................................................22
ARTICLE V TRUST SECURITIES CERTIFICATES.........................................................................22
5.1 Initial Ownership.............................................................................22
5.2 The Trust Securities Certificates.............................................................22
5.3 Execution, Authentication and Delivery of Trust Securities Certificates.......................22
5.3A Global Preferred Security.....................................................................23
5.4 Registration of Transfer and Exchange of Preferred Securities Certificates....................24
5.5 Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates............................26
5.6 Persons Deemed Securityholders................................................................26
5.7 Access to List of Securityholders' Names and Addresses........................................26
5.8 Maintenance of Office or Agency...............................................................27
5.9 Appointment of Paying Agent...................................................................27
5.10 Ownership of Common Securities by Depositor...................................................28
5.11 Trust Securities Certificates.................................................................28
5.12 Notices to Clearing Agency....................................................................28
5.13 Rights of Securityholders.....................................................................28
ARTICLE VI ACTS OF SECURITYHOLDERS; MEETINGS; VOTING............................................................29
6.1 Limitations on Voting Rights..................................................................29
6.2 Notice of Meetings............................................................................30
6.3 Meetings of Preferred Securityholders.........................................................31
i
6.4 Voting Rights.................................................................................31
6.5 Proxies, etc..................................................................................31
6.6 Securityholder Action by Written Consent......................................................32
6.7 Record Date for Voting and Other Purposes.....................................................32
6.8 Acts of Securityholders.......................................................................32
6.9 Inspection of Records.........................................................................33
ARTICLE VII REPRESENTATIONS AND WARRANTIES......................................................................33
7.1 Representations and Warranties of the Bank....................................................33
7.2 [RESERVED]....................................................................................35
7.3 Representations and Warranties of Depositor...................................................35
ARTICLE VIII TRUSTEES...........................................................................................35
8.1 Certain Duties and Responsibilities...........................................................35
8.2 Certain Notices...............................................................................37
8.3 Certain Rights of Property Trustee............................................................37
8.4 Not Responsible for Recitals or Issuance of Securities........................................40
8.5 May Hold Securities...........................................................................40
8.6 Compensation; Indemnity; Fees.................................................................40
8.7 Corporate Property Trustee Required; Eligibility of Trustees..................................41
8.8 Conflicting Interests.........................................................................41
8.9 Co-Trustees and Separate Trustee..............................................................41
8.10 Resignation and Removal; Appointment of Successor.............................................43
8.11 Acceptance of Appointment by Successor........................................................45
8.12 Merger, Conversion, Consolidation or Succession to Business...................................46
8.13 Preferential Collection of Claims Against Depositor or Trust..................................46
8.14 Reports by Property Trustee...................................................................46
8.15 Reports to the Property Trustee...............................................................46
8.16 Evidence of Compliance with Conditions Precedent..............................................46
8.17 Number of Trustees............................................................................47
8.18 Delegation of Power...........................................................................47
8.19 Voting........................................................................................47
ARTICLE IX TERMINATION, LIQUIDATION AND MERGER..................................................................48
9.1 Termination Upon Expiration Date..............................................................48
9.2 Early Termination.............................................................................48
9.3 Termination...................................................................................48
9.4 Liquidation...................................................................................48
9.5 Mergers, Consolidations, Amalgamations or Replacements of the Trust...........................50
ARTICLE X MISCELLANEOUS PROVISIONS..............................................................................51
10.1 Limitation of Rights of Securityholders.......................................................51
10.2 Amendment.....................................................................................52
10.3 Severability..................................................................................53
10.4 Governing Law.................................................................................53
10.5 Payments Due on Non-Business Day..............................................................53
10.6 Successors....................................................................................54
10.7 Headings......................................................................................54
10.8 Reports, Notices and Demands..................................................................54
10.9 Agreement Not to Petition.....................................................................55
ii
10.10 Trust Indenture Act; Conflict with Trust Indenture Act........................................55
10.11 Acceptance of Terms of Trust Agreement, Guarantee and Indenture...............................55
10.12 Counterparts..................................................................................56
10.13 Exchange Act Obligations......................................................................56
EXHIBITS
Exhibit A Certificate of Trust
Exhibit B Form of Common Securities Certificate
Exhibit C Form of Expense Agreement
Exhibit D Form of Preferred Securities Certificate
Exhibit E Form of Preferred Securities Certificate Authentication
Exhibit F Certificate Depositary Agreement
ii
CROSS-REFERENCE TABLE
Section of
Trust Indenture Act of 1939, as amended Amended and Restated Declaration of Trust
310(a)(1)........................................................................807
310(a)(2)........................................................................807
310(a)(3)........................................................................807
310(a)(4).................................................................207(a)(ii)
310(b)...........................................................................808
311(a)...........................................................................813
311(b)...........................................................................813
312(a)...........................................................................507
312(b)...........................................................................507
312(c)...........................................................................507
313(a)........................................................................814(a)
313(a)(4).....................................................................814(b)
313(b)........................................................................814(b)
313(c)..........................................................................1008
313(d)........................................................................814(c)
314(a)...........................................................................815
314(b)................................................................Not Applicable
314(c)(1)........................................................................816
314(c)(2)........................................................................816
314(c)(3).............................................................Not Applicable
314(d)................................................................Not Applicable
314(e)......................................................................101, 816
315(a)................................................................801(a), 803(a)
315(b).....................................................................802, 1008
315(c)........................................................................801(a)
315(d)......................................................................801, 803
316(a)(2).............................................................Not Applicable
316(b)................................................................Not Applicable
316(c)...........................................................................607
317(a)(1).............................................................Not Applicable
317(a)(2).............................................................Not Applicable
317(b)...........................................................................509
318(a)..........................................................................1010
Note: This Cross-Reference Table does not constitute part of this Agreement and
shall not affect the interpretation of any of its terms or provisions.
iv
AMENDED AND RESTATED TRUST AGREEMENT
THIS AMENDED AND RESTATED TRUST AGREEMENT, dated as of April 17, 2002,
among (i) FIRST MERCHANTS CORPORATION, an Indiana corporation (including any
successors or assigns, the "Depositor"), (ii) WACHOVIA TRUST COMPANY, NATIONAL
ASSOCIATION (formerly known as First Union Trust Company, National Association),
as property trustee and Delaware trustee (sometimes referred to herein as the
"Property Trustee," and/or the "Delaware Trustee" and sometimes referred to in
its separate corporate capacity and not in its capacity as Property Trustee or
Delaware Trustee as the "Bank" and/or the "Delaware Bank") and (iii) MICHAEL L.
COX, an individual, LARRY R. HELMS, ESQ., an individual, and MARK K. HARDWICK,
an individual, each of whose address is c/o Company (each an "Administrative
Trustee" and collectively the "Administrative Trustees") (the Property Trustee,
the Delaware Trustee and the Administrative Trustees referred to collectively as
the "Trustees"), and (v) the several Holders (as hereinafter defined).
RECITALS
WHEREAS, the Depositor, the Delaware Trustee, and Michael L. Cox, Larry R.
Helms, Esq. and Mark K. Hardwick, each as an Administrative Trustee, have
heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act by entering into that certain Trust Agreement dated
as of December 12, 2001 (the "Original Trust Agreement"), and by the execution
and filing by the Delaware Trustee and the Administrative Trustees with the
Secretary of State of the State of Delaware of the Certificate of Trust, filed
on December 12, 2001, the form of which is attached as Exhibit A; and
WHEREAS, the Depositor, the Delaware Trustee, the Property Trustee and the
Administrative Trustees desire to amend and restate the Original Trust Agreement
in its entirety as set forth herein to provide for, among other things, (i) the
issuance of the Common Securities (as defined herein) by the Trust (as defined
herein) to the Depositor; (ii) the issuance and sale of the Preferred Securities
(as defined herein) by the Trust pursuant to the Underwriting Agreement (as
defined herein); (iii) the acquisition by the Trust from the Depositor of all of
the right, title and interest in the Debentures (as defined herein); and (iv)
the appointment of the Trustees;
NOW THEREFORE, in consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Securityholders (as defined herein),
hereby amends and restates the Original Trust Agreement in its entirety and
agrees as follows:
Article I
DEFINED TERMS
1.1 Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
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(a) the terms defined in this Article I have the meanings assigned to
them in this Article I and include the plural as well as the
singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as
the case may be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not
to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount equal to accrued interest,
including compound interest, in arrears and paid by the Depositor on a Like
Amount of Debentures for such period.
"Additional Interest" has the meaning specified in Section 1.1 of the First
Supplemental Indenture.
"Administrative Trustee" means each of Michael L. Cox, Larry R. Helms, Esq.
and Mark K. Hardwick, solely in his or her capacity as Administrative Trustee of
the Trust formed and continued hereunder and not in his or her individual
capacity, or such Administrative Trustee's successor in interest in such
capacity, or any successor trustee appointed as herein provided.
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person; (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person; (c) any Person
directly or indirectly controlling, controlled by, or under common control with
the specified Person; (d) a partnership in which the specified Person is a
general partner; (e) any officer or director of the specified Person; and (f) if
the specified Person is an individual, any entity of which the specified Person
is an officer, director or general partner.
"Authenticating Agent" means an authenticating agent with respect to the
Preferred Securities appointed by the Property Trustee pursuant to Section 5.3.
"Bank" has the meaning specified in the Preamble to this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises adjudging such Person a bankrupt or insolvent, or
approving as properly filed a petition seeking liquidation or
reorganization of or in respect of such Person under the United
States Bankruptcy Code of 1978, as amended, or any other similar
applicable federal or state law, and the continuance of any such
-2-
decree or order unvacated and unstayed for a period of 90 days;
or the commencement of an involuntary case under the United
States Bankruptcy Code of 1978, as amended, in respect of such
Person, which shall continue undismissed for a period of 90 days
or entry of an order for relief in such case; or the entry of a
decree or order of a court having jurisdiction in the premises
for the appointment on the ground of insolvency or bankruptcy of
a receiver, custodian, liquidator, trustee or assignee in
bankruptcy or insolvency of such Person or of its property, or
for the winding up or liquidation of its affairs, and such decree
or order shall have remained in force unvacated and unstayed for
a period of 90 days; or
(b) the institution by such Person of proceedings to be adjudicated a
voluntary bankrupt, or the consent by such Person to the filing
of a bankruptcy proceeding against it, or the filing by such
Person of a petition or answer or consent seeking liquidation or
reorganization under the United States Bankruptcy Code of 1978,
as amended, or other similar applicable federal or state law, or
the consent by such Person to the filing of any such petition or
to the appointment on the ground of insolvency or bankruptcy of a
receiver or custodian or liquidator or trustee or assignee in
bankruptcy or insolvency of such Person or of its property, or
shall make a general assignment for the benefit of creditors.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board Resolution" means a copy of a resolution certified by the Secretary
of the Depositor to have been duly adopted by the Depositor's Board of
Directors, or such committee of the Board of Directors or officers of the
Depositor to which authority to act on behalf of the Board of Directors has been
delegated, and to be in full force and effect on the date of such certification,
and delivered to the appropriate Trustee.
"Business Day" means a day other than a Saturday or Sunday, a day on which
banking institutions in The City of New York are authorized or required by law,
executive order or regulation to remain closed, or a day on which the Property
Trustee's Corporate Trust Office or the Corporate Trust Office of the Debenture
Trustee is closed for business.
"Certificate Depositary Agreement" means the agreement among Depositor,
Trust and DTC, as the initial Clearing Agency, dated as of the Closing Date,
substantially in the form attached as Exhibit F as the same may be amended and
supplemented from time to time.
"Certificate of Trust" means the certificate of trust filed with the
Secretary of State of the State of Delaware with respect to the Trust, as
amended or restated from time to time.
"Change in 1940 Act Law" shall have the meaning set forth in the definition
of "Investment Company Event."
-3-
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. DTC
shall be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank or other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the date of execution and delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument, such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Security" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $25 and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing ownership of
Common Securities, substantially in the form attached as Exhibit B.
"Corporate Trust Office" means the office at which, at any particular time,
the corporate trust business of the Property Trustee or the Debenture Trustee,
as the case may be, shall be principally administered, which office at the date
hereof, in each such case, is located at One Rodney Square, 920 King Street,
Suite 102, Wilmington, Delaware 19801, Attention: Corporate Trust Trustee
Administration.
"Debenture Event of Default" means an "Event of Default" as defined in
Section 5.1 of the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption under the Indenture.
"Debenture Tax Event" means a "Tax Event" as specified in Section 1.1 of
the First Supplemental Indenture.
"Debenture Trustee" means Wachovia Trust Company, National Association and
any successor thereto, as trustee under the Indenture.
"Debentures" means up to $54,832,475 principal amount of the Depositor's
8.75% Junior Subordinated Debentures due June 30, 2032 issued pursuant to the
Indenture.
"Definitive Preferred Securities Certificates" means Preferred Securities
Certificates issued in certified, fully registered form as provided in Section
5.4.
-4-
"Delaware Bank" has the meaning specified in the Preamble to this Trust
Agreement.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Delaware Code Sections 3801 et seq. as it may be amended from time to
time.
"Delaware Trustee" means the commercial bank or trust company identified as
the "Delaware Trustee" in the Preamble to this Trust Agreement solely in its
capacity as Delaware Trustee of the Trust and not in its individual capacity, or
its successor in interest in such capacity, or any successor trustee appointed
as herein provided.
"Depositary" means DTC or any successor thereto.
"Depositor" has the meaning specified in the Preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust Securities as
provided in Section 4.1.
"DTC" means The Depository Trust Company.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a
period of 30 days; or
(c) default by the Trust in the payment of any Redemption Price of
any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect,
of any covenant or warranty of the Trustees in this Trust
Agreement (other than a covenant or warranty a default in the
performance of which or the breach of which is dealt with in
clause (b) or (c), above) and continuation of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the defaulting Trustee or
Trustees by the Holders of at least 25% in aggregate Liquidation
Amount of the Outstanding Preferred Securities a written notice
specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder;
or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure by the Depositor to appoint a successor
Property Trustee within 60 days thereof.
-5-
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Depositor and the Trust, substantially in the form attached as
Exhibit C, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Extended Interest Payment Period" has the meaning specified in Section 4.1
of the First Supplemental Indenture.
"Global Preferred Securities Certificate" means a Preferred Securities
Certificate evidencing ownership of Global Preferred Securities.
"Global Preferred Security" means a Preferred Security, the ownership and
transfer of which shall be made through book entries by a Clearing Agency as
described herein.
"Guarantee" means the Preferred Securities Guarantee Agreement executed and
delivered by the Depositor and Wachovia Trust Company, National Association, as
trustee, contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the holders of the Preferred Securities, as
amended from time to time.
"Indenture" means the Indenture, dated as of April 17, 2002 between the
Depositor and the Debenture Trustee, as trustee, as amended by that certain
First Supplemental Indenture (the "First Supplemental Indenture"), dated as of
April 17, 2002 as hereafter may be amended or supplemented from time to time,
pursuant to which the Debentures are issued.
"Investment Company Act," means the Investment Company Act of 1940, as
amended, as in effect at the date of execution of this instrument.
"Investment Company Event" means the receipt by the Trust and the Depositor
of an Opinion of Counsel, rendered by a law firm having a recognized national
tax and securities law practice, to the effect that, as a result of the
occurrence of a change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), the Trust is or
shall be considered an "investment company" that is required to be registered
under the Investment Company Act, which Change in 1940 Act Law becomes effective
on or after the date of original issuance of the Preferred Securities under this
Trust Agreement, provided, however, that the Depositor or the Trust shall have
requested and received such an Opinion of Counsel with regard to such matters
within a reasonable period of time after the Depositor or the Trust shall have
become aware of the possible occurrence of any such event.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust Securities,
Trust Securities having an aggregate Liquidation Amount equal to the aggregate
principal amount of Debentures to
-6-
be contemporaneously redeemed in accordance with the Indenture and the proceeds
of which shall be used to pay the Redemption Price of such Trust Securities; and
(b) with respect to a distribution of Debentures to Holders of Trust Securities
in connection with a termination or liquidation of the Trust, Debentures having
a principal amount equal to the Liquidation Amount of the Trust Securities of
the Holder to whom such Debentures are distributed. Each Debenture distributed
pursuant to clause (b) above shall carry with it accrued interest in an amount
equal to the accrued and unpaid interest then due on such Debentures.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Liquidation Date" means the date on which Debentures are to be distributed
to Holders of Trust Securities in connection with a dissolution and liquidation
of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Officers' Certificate" means a certificate signed by the President or an
Executive Vice President and by the Chief Financial Officer or the Treasurer or
the Secretary, of the Depositor, and delivered to the appropriate Trustee. One
of the officers signing an Officers' Certificate given pursuant to Section 8.16
shall be the principal executive, financial or accounting officer of the
Depositor. Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the
Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to
enable such officer to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means an opinion in writing of independent, outside
legal counsel for the Trust, the Property Trustee, the Delaware Trustee or the
Depositor, who shall be reasonably acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the Recitals to
this Trust Agreement.
"Outstanding", when used with respect to Preferred Securities, means, as of
the date of determination, all Preferred Securities theretofore executed and
delivered under this Trust Agreement, except:
-7-
(a) Preferred Securities theretofore canceled by the Property Trustee
or delivered to the Property Trustee for cancellation;
(b) Preferred Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent for the Holders of such Preferred
Securities; provided that, if such Preferred Securities are to be
redeemed, notice of such redemption has been duly given pursuant
to this Trust Agreement; and
(c) Preferred Securities which have been paid or in exchange for or
in lieu of which other Preferred Securities have been executed
and delivered pursuant to Sections 5.4, 5.5 and 5.11; provided,
however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have
given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Preferred Securities owned by the
Depositor, any Trustee or any Affiliate of the Depositor or any
Trustee shall be disregarded and deemed not to be Outstanding,
except that (a) in determining whether any Trustee shall be
protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only
Preferred Securities that such Trustee knows to be so owned shall
be so disregarded; and (b) the foregoing shall not apply at any
time when all of the outstanding Preferred Securities are owned
by the Depositor, one or more of the Trustees and/or any such
Affiliate. Preferred Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrative Trustees
the pledgee's right so to act with respect to such Preferred
Securities and the pledgee is not the Depositor or any other
Obligor upon the Preferred Securities or a Person directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Depositor or any Affiliate of
the Depositor.
"Paying Agent" means any paying agent or co-paying agent appointed pursuant
to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee with the Bank in its trust department
for the benefit of the Securityholders in which all amounts paid in respect of
the Debentures shall be held and from which the Property Trustee shall make
payments to the Securityholders in accordance with Sections 4.1 and 4.2.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $25 and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
-8-
"Preferred Securities Certificate", means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as Exhibit
D.
"Property Trustee" means the commercial bank or trust company identified as
the "Property Trustee," in the Preamble to this Trust Agreement solely in its
capacity as Property Trustee of the Trust and not in its individual capacity, or
its successor in interest in such capacity, or any successor property trustee
appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be redeemed,
the date fixed for such redemption by or pursuant to this Trust Agreement;
provided that each Debenture Redemption Date and the stated maturity of the
Debentures shall be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date allocated on a pro rata basis (based on
Liquidation Amounts) among the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
"Securityholder" or "Holder" means a Person in whose name a Trust Security
is or Trust Securities are registered in the Securities Register; any such
Person is a beneficial owner within the meaning of the Delaware Business Trust
Act.
"Trust" means the Delaware business trust created and continued hereby and
identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Declaration of Trust, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including all exhibits hereto, including, for all
purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment or
supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939, as amended, is
amended after such date, "Trust Indenture Act" means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures; (b) any cash on deposit in, or
owing to, the Payment 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 Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the Preferred
Securities.
-9-
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Delaware Trustee
and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
April 12, 2002, among the Trust, the Depositor and the Underwriters named
therein.
ARTICLE II
ESTABLISHMENT OF THE TRUST
2.1 Name.
The Trust continued hereby shall be known as "First Merchants Capital Trust
I," as such name may be modified from time to time by the Administrative
Trustees following written notice to the Holders of Trust Securities and the
other Trustees, in which name the Trustees may engage in the transactions
contemplated hereby, make and execute contracts and other instruments on behalf
of the Trust and sue and be sued.
2.2 Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is One Rodney
Square, 920 King Street, Suite 102, Wilmington, Delaware 19801, Attention:
Corporate Trust Trustee Administration, or such other address in the State of
Delaware as the Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal executive office of the Trust
is c/o First Merchants Corporation, 200 East Jackson Street, Post Office Box
792, Muncie, Indiana 47308, Attention: Larry R. Helms, Esq., Senior Vice
President & General Counsel.
2.3 Initial Contribution of Trust Property; Organizational Expenses.
The Trustees acknowledge receipt in trust from the Depositor in connection
with the Original Trust Agreement of the sum of $10, which constituted the
initial Trust Property. The Depositor shall pay organizational expenses of the
Trust as they arise or shall, upon request of any Trustee, promptly reimburse
such Trustee for any such expenses paid by such Trustee. The Depositor shall
make no claim upon the Trust Property for the payment of such expenses.
2.4 Issuance of the Preferred Securities.
The Depositor and an Administrative Trustee, on behalf of the Trust and
pursuant to the Original Trust Agreement, executed and delivered the
Underwriting Agreement. Contemporaneously with the execution and delivery of
this Trust Agreement, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.2 and deliver in accordance with the
Underwriting Agreement, Preferred Securities Certificates, registered in the
name of Persons entitled thereto in an aggregate amount of 1,850,000 Preferred
Securities having an aggregate Liquidation Amount of $46,250,000 against receipt
of the aggregate purchase price of
-10-
such Preferred Securities of $46,250,000, which amount such Administrative
Trustee shall promptly deliver to the Property Trustee. If the underwriters
exercise their over-allotment option and there is an Option Closing Date (as
such term is defined in the Underwriting Agreement), then an Administrative
Trustee, on behalf of the Trust, shall execute in accordance with Section 5.2
and deliver in accordance with the Underwriting Agreement, Preferred Securities
Certificates, registered in the name of the Persons entitled thereto in an
aggregate amount of up to 277,500 Preferred Securities having an aggregate
Liquidation Amount of up to $6,937,500 against receipt of the aggregate purchase
price of such Preferred Securities of up to $6,937,500, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee.
2.5 Issuance of the Common Securities; Subscription and Purchase of
Debentures.
(a) Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust,
shall execute in accordance with Section 5.2 and deliver to the
Depositor, Common Securities Certificates, registered in the name
of the Depositor, in an aggregate amount of Common Securities
having an aggregate Liquidation Amount of $1,430,425 against
payment by the Depositor of such amount. Contemporaneously
therewith, an Administrative Trustee, on behalf of the Trust,
shall subscribe to and purchase from the Depositor Debentures,
registered in the name of the Property Trustee on behalf of the
Trust and having an aggregate principal amount equal to
$1,430,425, and, in satisfaction of the purchase price for such
Debentures, the Property Trustee, on behalf of the Trust, shall
deliver to the Depositor the sum of $1,430,425.
(b) If the underwriters exercise their over-allotment option and
there is an Option Closing Date, then an Administrative Trustee,
on behalf of the Trust, shall execute in accordance with Section
5.2 and deliver to the Depositor, Common Securities Certificates,
registered in the name of the Depositor, in an additional
aggregate amount of Common Securities having an aggregate
Liquidation Amount of up to $214,550 against payment by the
Depositor of such amount. Contemporaneously therewith, an
Administrative Trustee, on behalf of the Trust, shall subscribe
to and purchase from the Depositor, additional Debentures,
registered in the name of the Trust and having an aggregate
principal amount of up to $214,550, and, in satisfaction of the
purchase price of such Debentures, the Property Trustee, on
behalf of the Trust, shall deliver to the Depositor up to
$214,550, such aggregate amount to be equal to the sum of the
amounts received from the Depositor pursuant to Section 2.5(b)
and from one of the Administrative Trustees pursuant to the last
sentence of Section 2.4.
2.6 Declaration of Trust.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Trust Securities and use the proceeds from such sale to acquire the Debentures;
and (b) to engage in those activities
-11-
necessary, advisable or incidental thereto. The Depositor hereby appoints the
Trustees as trustees of the Trust, to have all the rights, powers and duties to
the extent set forth herein, and the Trustees hereby accept such appointment.
The Property Trustee hereby declares that it shall hold the Trust Property in
trust upon and subject to the conditions set forth herein for the benefit of the
Securityholders. The Administrative Trustees shall have all rights, powers and
duties set forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Property Trustee or the Administrative
Trustees set forth herein. The Delaware Trustee shall be one of the Trustees of
the Trust for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
2.7 Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in accordance
with the terms of this Trust Agreement. Subject to the
limitations set forth in paragraph (b) of this Section 2.7 and
Article VIII, and in accordance with the following provisions (i)
and (ii), the Administrative Trustees shall have the authority to
enter into all transactions and agreements determined by the
Administrative Trustees to be appropriate in exercising the
authority, express or implied, otherwise granted to the
Administrative Trustees under this Trust Agreement, and to
perform all acts in furtherance thereof, including without
limitation, the following:
(i) As among the Trustees, each Administrative Trustee, acting
singly or jointly, shall have the power and authority to act
on behalf of the Trust with respect to the following
matters:
(A) the issuance and sale of the Trust Securities and the
compliance with the Underwriting Agreement in
connection therewith;
(B) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the
Underwriting Agreement, the Expense Agreement and such
other agreements or documents as may be necessary or
desirable in connection with the purposes and function
of the Trust;
(C) assisting in the registration of the Preferred
Securities under the Securities Act of 1933, as
amended, and under state securities or blue sky laws,
and the qualification of this Trust Agreement as a
trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities
upon The Nasdaq National Market or such securities
exchange or exchanges as shall be determined by the
Depositor, the
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registration of the Preferred Securities under the
Exchange Act, the compliance with the listing
requirements of The Nasdaq National Market or the
applicable securities exchanges and the preparation and
filing of all periodic and other reports and other
documents pursuant to the foregoing;
(E) the sending of notices (other than notices of default)
and other information regarding the Trust Securities
and the Debentures to the Securityholders in accordance
with this Trust Agreement;
(F) the appointment of a Paying Agent, Authenticating Agent
and Securities Registrar in accordance with this Trust
Agreement;
(G) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the
Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State
of the State of Delaware;
(H) to take all action that may be necessary or appropriate
for the preservation and the continuation of the
Trust's valid existence, rights, franchises and
privileges as a statutory business trust under the laws
of the State of Delaware and of each other jurisdiction
in which such existence is necessary to protect the
limited liability of the Holders of the Preferred
Securities or to enable the Trust to effect the
purposes for which the Trust was created; and
(I) the taking of any action incidental to the foregoing as
the Administrative Trustees may from time to time
determine is necessary or advisable to give effect to
the terms of this Trust Agreement for the benefit of
the Securityholders (without consideration of the
effect of any such action on any particular
Securityholder).
(ii) As among the Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Trust with
respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other
payments made in respect of the Debentures in the
Payment Account;
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(D) the distribution of amounts owed to the Securityholders
in respect of the Trust Securities in accordance with
the terms of this Trust Agreement;
(E) the exercise of all of the rights, powers and
privileges of a holder of the Debentures;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to
the Securityholders in accordance with this Trust
Agreement;
(G) the distribution of the Trust Property in accordance
with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the
Trust;
(I) after an Event of Default, the taking of any action
incidental to the foregoing as the Property Trustee may
from time to time determine is necessary or advisable
to give effect to the terms of this Trust Agreement and
protect and conserve the Trust Property for the benefit
of the Securityholders (without consideration of the
effect of any such action on any particular
Securityholder);
(J) registering transfers of the Trust Securities in
accordance with this Trust Agreement; and
(K) except as otherwise provided in this Section
2.7(a)(ii), the Property Trustee shall have none of the
duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or
the Trustees acting on behalf of the Trust) shall not undertake
any business, activities or transaction except as expressly
provided herein or contemplated hereby. In particular, the
Trustees shall not (i) acquire any investments or engage in any
activities not authorized by this Trust Agreement; (ii) sell,
assign, transfer, exchange, mortgage, pledge, set-off or
otherwise dispose of any of the Trust Property or interests
therein, including to Securityholders, or acquire any assets, in
each case, except as expressly provided herein; (iii) take any
action that would cause the Trust to fail or cease to qualify as
a "grantor trust" for United States federal income tax purposes;
(iv) incur any indebtedness for borrowed money or issue any other
debt; or (v) take or consent to any action that would result in
the placement of a Lien on any of the Trust Property. The
Administrative Trustees shall defend all claims and demands of
all
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Persons at any time claiming any Lien on any of the Trust
Property adverse to the interest of the Trust or the
Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and responsibility
to assist the Trust with respect to, or effect on behalf of the
Trust, the following (and any actions taken by the Depositor in
furtherance of the following prior to the date of this Trust
Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the Commission
and the execution on behalf of the Trust of a registration
statement on the appropriate form in relation to the
Preferred Securities, the Debentures, and the Guarantee,
including any amendments thereto;
(ii) the determination of the states in which to take appropriate
action to qualify or, register for sale all or part of the
Preferred Securities and to do any and all such acts, other
than actions which must be taken by or on behalf of the
Trust, and advise the Trustees of actions they must take on
behalf of the Trust, and prepare for execution and filing
any documents to be executed and filed by the Trust or on
behalf of the Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any
such States;
(iii) the preparation for filing by the Trust and execution on
behalf of the Trust of an application to The Nasdaq National
Market or a national stock exchange or other organizations
for listing upon notice of issuance of any Preferred
Securities and to file or cause an Administrative Trustee to
file thereafter with such exchange or organization such
notifications and documents as may be necessary from time to
time;
(iv) the preparation for filing by the Trust with the Commission
and the execution on behalf of the Trust of a registration
statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) or 12(g) of the
Exchange Act, including any amendments thereto; and
(v) 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 Trustees are
authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that the Trust shall not be deemed to be an
"investment company" required to be registered under the Investment
Company Act, shall be classified as a "grantor trust" and not as an
association taxable as
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a corporation for United States federal income tax purposes and so
that the Debentures shall be treated as indebtedness of the Depositor
for United States federal income tax purposes. In this connection,
subject to Section 10.2, the Depositor and the Administrative Trustees
are authorized to take any action, not inconsistent with applicable
law or this Trust Agreement, that each of the Depositor and the
Trustees determines in their discretion to be necessary or desirable
for such purposes.
2.8 Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
2.9 Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Securityholders in accordance with
this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
3.1 Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent
of the Property Trustee shall have exclusive control and sole
right of withdrawal with respect to the Payment Account for the
purpose of making deposits and withdrawals from the Payment
Account in accordance with this Trust Agreement. All monies and
other property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment
Account for the exclusive benefit of the Securityholders and for
distribution as herein provided, including (and subject to) any
priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest
on, and any other payments or proceeds with respect to, the
Debentures. Amounts held in the Payment Account shall not be
invested by the Property Trustee pending distribution thereof.
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ARTICLE IV
DISTRIBUTIONS; REDEMPTION
4.1 Distributions.
(a) Distributions on the Trust Securities shall be cumulative, and
shall accumulate whether or not there are funds of the Trust
available for the payment of Distributions. Distributions shall
accumulate from April 17, 2002, and, except during any Extended
Interest Payment Period with respect to the Debentures, shall be
payable quarterly in arrears on the last calendar day of March,
June, September and December of each year, commencing on June 30,
2002. If any date on which a Distribution is otherwise payable on
the Trust Securities is not a Business Day, then the payment of
such Distribution shall be made on the next succeeding day that
is a Business Day (and without any interest or other payment in
respect of any such delay) except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day (and without any
reduction of interest or any other payment in respect of any such
acceleration), in each case with the same force and effect as if
made on such date (each date on which distributions are payable
in accordance with this Section 4.1(a), a "Distribution Date").
(b) The Trust Securities represent undivided beneficial interests in
the Trust Property. Distributions on the Trust Securities shall
be payable at a rate of 8.75% per annum of the Liquidation Amount
of the Trust Securities. The amount of Distributions payable for
any full period shall be computed on the basis of a 360-day year
of twelve 30-day months. The amount of Distributions for any
partial period shall be computed on the basis of the number of
days elapsed in a 360-day year of twelve 30-day months. During
any Extended Interest Payment Period with respect to the
Debentures, Distributions on the Preferred Securities shall be
deferred for a period equal to the Extended Interest Payment
Period. The amount of Distributions payable for any period shall
include the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made by the
Property Trustee solely from the Payment Account and shall be
payable on each Distribution Date only to the extent that the
Trust has funds on hand and immediately available by 12:30 p.m.
on each Distribution Date in the Payment Account for the payment
of such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they
appear on the Securities Register for the Trust Securities on the
relevant record date, which shall be the 15th day of March, June,
September or December for Distributions
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payable on the last calendar day of the respective month;
provided, however, that for any Trust Securities held in global
form, Distributions shall be payable to the Holder thereof as of
one Business Day immediately preceding the Distribution Date.
4.2 Redemption.
(a) On each Debenture Redemption Date and on the maturity of the
Debentures, the Trust shall be required to redeem a Like Amount
of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor
more than 60 days prior to the Redemption Date to each Holder of
Trust Securities to be redeemed, at such Holder's address
appearing in the Securities Register. The Property Trustee shall
have no responsibility for the accuracy of any CUSIP number
contained in such notice. All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the aggregate Liquidation
Amount of the particular Trust Securities to be redeemed;
(v) that, on the Redemption Date, the Redemption Price shall
become due and payable upon each such Trust Security to be
redeemed and that Distributions thereon shall cease to
accumulate on and after said date, except as provided in
Section 4.2(d); and
(vi) the place or places at which Trust Securities are to be
surrendered for the payment of the Redemption Price.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption of Debentures. Redemptions of the
Trust Securities shall be made and the Redemption Price shall be
payable on each Redemption Date only to the extent that the Trust
has immediately available funds then on hand and available in the
Payment Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect
of any Preferred Securities, then, by 12:00 noon, New York City
time, on the Redemption Date, the Property Trustee, subject to
Section 4.2(c), shall,
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with respect to Preferred Securities held in global form, deposit
with the Clearing Agency for such Preferred Securities, to the
extent available therefor, funds sufficient to pay the applicable
Redemption Price and will give such Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to the
Holders of the Preferred Securities. With respect to Trust
Securities that are not held in global form, the Property
Trustee, subject to Section 4.2(c), shall deposit with the Paying
Agent funds sufficient to pay the applicable Redemption Price and
shall give the Paying Agent irrevocable instructions and
authority to pay the Redemption Price to the record holders
thereof upon surrender of their Preferred Securities
Certificates. Notwithstanding the foregoing, Distributions
payable on or prior to the Redemption Date for any Trust
Securities called for redemption shall be payable to the Holders
of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates
for the related Distribution Dates. If notice of redemption shall
have been given and funds deposited as required, then upon the
date of such deposit, (i) all rights of Securityholders holding
Trust Securities so called for redemption shall cease, except the
right of such Securityholders to receive the Redemption Price,
but without interest and (ii) such Trust Securities shall cease
to be Outstanding. In the event that any date on which any
Redemption Price is payable is not a Business Day, then payment
of the Redemption Price payable on such date shall be made on the
next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except
that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding
Business Day (and without any reduction of interest or any other
payment in respect of any such acceleration), in each case with
the same force and effect as if made on such date. In the event
that payment of the Redemption Price in respect of any Trust
Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Depositor
pursuant to the Guarantee, Distributions on such Trust Securities
shall continue to accumulate, at the then applicable rate, from
the Redemption Date originally established by the Trust for such
Trust Securities to the date such Redemption Price is actually
paid, in which case the actual payment date shall be the date
fixed for redemption for purposes of calculating the Redemption
Price.
(e) Payment of the Redemption Price on the Trust Securities shall be
made to the record holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant
record date, which shall be the date 15 days prior to the
relevant Redemption Date.
(f) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the
aggregate Liquidation Amount of Trust Securities to be redeemed
shall be allocated on a pro rata basis (based on Liquidation
Amounts) among the Common Securities and
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the Preferred Securities. The particular Preferred Securities to
be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Property Trustee from the Outstanding
Preferred Securities not previously called for redemption, by
such method (including, without limitation, by lot) as the
Property Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to
such Liquidation Amount or an integral multiple of such
Liquidation Amount in excess thereof) of the Liquidation Amount
of Preferred Securities of a denomination larger than such
Liquidation Amount; provided, however, in the event the
redemption relates only to Preferred Securities purchased and
held by the Depositor being redeemed in exchange for a Like
Amount of Debentures, the Property Trustee shall select those
particular Preferred Securities for redemption. The Property
Trustee shall promptly notify the Securities Registrar in writing
of the Preferred Securities selected for redemption and, in the
case of any Preferred Securities selected for partial redemption,
the Liquidation Amount thereof to be redeemed. For all purposes
of this Trust Agreement, unless the context otherwise requires,
all provisions relating to the redemption of Preferred Securities
shall relate, in the case of any Preferred Securities redeemed or
to be redeemed only in part, to the portion of the Liquidation
Amount of Preferred Securities which has been or is to be
redeemed.
4.3 Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, the Trust
Securities, as applicable, shall be made, subject to Section
4.2(f), pro rata among the Common Securities and the Preferred
Securities based on the Liquidation Amount of the Trust
Securities; provided, however, that if on any Distribution Date
or Redemption Date any Event of Default resulting from a
Debenture Event of Default shall have occurred and be continuing,
no payment of any Distribution (including Additional Amounts, if
applicable) on, or Redemption Price of, any Common Security, and
no other payment on account of the redemption, liquidation or
other acquisition of Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid
Distributions (including Additional Amounts, if applicable) on
all Outstanding Preferred 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 Preferred Securities then called for redemption,
shall have been made or provided for, and all funds immediately
available to the Property Trustee shall first be applied to the
payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or the Redemption Price
of, Preferred Securities then due and payable.
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(b) In the case of the occurrence of any Event of Default resulting
from a Debenture Event of Default, the Holder of Common
Securities shall be deemed to have waived any right to act with
respect to any such Event of Default under this Trust Agreement
until the effect of all such Events of Default with respect to
the Preferred Securities shall have been cured, waived or
otherwise eliminated. Until any such Event of Default under this
Trust Agreement with respect to the Preferred Securities shall
have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the
Preferred Securities and not the Holder of the Common Securities,
and only the Holders of the Preferred Securities shall have the
right to direct the Property Trustee to act on their behalf.
4.4 Payment Procedures.
Payments of Distributions (including Additional Amounts, if applicable) in
respect of the Preferred Securities shall be made by check mailed to the address
of the Person entitled thereto as such address shall appear on the Securities
Register or, if the Preferred Securities are held by a Clearing Agency, such
Distributions shall be made to the Clearing Agency in immediately available
funds, which will credit the relevant accounts on the applicable Distribution
Dates. Payments in respect of the Common Securities shall be made in such manner
as shall be mutually agreed between the Property Trustee and the Common
Securityholder.
4.5 Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared), at the
Depositor's expense, and file all United States federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared and filed) the appropriate Internal Revenue Service
forms required to be filed in respect of the Trust in each taxable year of the
Trust; and (b) prepare and furnish (or cause to be prepared and furnished) to
each Securityholder the appropriate Internal Revenue Service forms required to
be furnished to such Securityholder or the information required to be provided
on such form. The Administrative Trustees shall provide the Depositor with a
copy of all such returns and reports promptly after such filing or furnishing.
The Property Trustee shall comply with United States federal withholding and
backup withholding tax laws and information reporting requirements with respect
to any payments to Securityholders under the Trust Securities.
4.6 Payment of Taxes, Duties, etc. of the Trust.
Upon receipt under the Debentures of Additional Interest, the Property
Trustee, at the direction of an Administrative Trustee or the Depositor, shall
promptly pay any taxes, duties or governmental charges of whatsoever nature
(other than withholding taxes) imposed on the Trust by the United States or any
other taxing authority.
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4.7 Payments Under Indenture.
Any amount payable hereunder to any Holder of Preferred Securities shall be
reduced by the amount of any corresponding payment such Holder has directly
received under the Indenture pursuant to Section 5.13(b) or (c) hereof.
ARTICLE V
TRUST SECURITIES CERTIFICATES
5.1 Initial Ownership.
Upon the creation of the Trust and the contribution by the Depositor
pursuant to Section 2.3 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are outstanding, the Depositor shall
be the sole beneficial owner of the Trust.
5.2 The Trust Securities Certificates.
The Preferred Securities Certificates shall be issued in minimum
denominations of the Liquidation Amount and integral multiples of the
Liquidation Amount in excess thereof, and the Common Securities Certificates
shall be issued in denominations of the Liquidation Amount and multiples thereof
(which may, in the case of the Common Securities, include fractional amounts).
The Trust Securities Certificates shall be executed on behalf of the Trust by
manual or facsimile signature of at least one Administrative Trustee. Trust
Securities Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall be validly issued and entitled
to the benefits of this Trust Agreement, notwithstanding that such individuals
or any of them shall have ceased to be so authorized prior to the delivery of
such Trust Securities Certificates or did not hold such offices at the date of
delivery of such Trust Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Securityholder, and shall be entitled to
the rights and subject to the obligations of a Securityholder hereunder, upon
due registration of such Trust Securities Certificate in such transferee's name
pursuant to Sections 5.4, 5.11 and 5.13.
5.3 Execution, Authentication and Delivery of Trust Securities
Certificates.
(a) On the Closing Date and on any Option Closing Date, the
Administrative Trustees shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Trust by at
least one of the Administrative Trustees and delivered to or upon
the written order of the Depositor, signed by its Chief Executive
Officer, President, any Vice President or its Treasurer without
further corporate action by the Depositor, in authorized
denominations.
(b) A Preferred Securities Certificate shall not be valid until
authenticated by the manual signature of an authorized signatory
of the Property Trustee in substantially the form of Exhibit E
attached hereto. The signature shall be conclusive evidence that
the Preferred Securities Certificate has been
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authenticated under this Trust Agreement. Each Preferred Security
Certificate shall be dated the date of its authentication.
Upon the written order of the Trust signed by one of the Administrative
Trustees, the Property Trustee shall authenticate and make available for
delivery the Preferred Securities Certificates.
The Property Trustee may appoint an Authenticating Agent acceptable to the
Trust to authenticate the Preferred Securities. An Authenticating Agent may
authenticate the Preferred Securities whenever the Property Trustee may do so.
Each reference in this Trust Agreement to authentication by the Property Trustee
includes authentication by such agent. An Authenticating Agent has the same
rights as the Property Trustee to deal with the Depositor or the Trust.
5.3A. Global Preferred Security.
(a) Any Global Preferred Security issued under this Trust Agreement
shall be registered in the name of the nominee of the Clearing
Agency and delivered to such custodian therefor, and such Global
Preferred Security shall constitute a single Preferred Security
for all purposes of this Trust Agreement.
(b) Notwithstanding any other provision in this Trust Agreement, no
Global Preferred Security may be exchanged for Preferred
Securities registered in the names of persons other than the
Depositary or its nominee unless (i) the Depositary notifies the
Debenture Trustee that it is unwilling or unable to continue as a
depositary for such Global Preferred Securities and the Depositor
is unable to locate a qualified successor depositary, (ii) the
Depositor executes and delivers to the Debenture Trustee a
written order stating that it elects to terminate the book-entry
system through the Depositary or (iii) there shall have occurred
and be continuing a Debenture Event of Default.
(c) If a Preferred Security is to be exchanged in whole or in part
for a beneficial interest in a Global Preferred Security, then
either (i) such Global Preferred Security shall be so surrendered
for exchange or cancellation as provided in this Article V or
(ii) the Liquidation Amount thereof shall be reduced or increased
by an amount equal to the portion thereof to be so exchanged or
cancelled, or equal to the Liquidation Amount of such other
Preferred Securities to be so exchanged for a beneficial interest
therein, as the case may be, by means of an appropriate
adjustment made on the records of the Securities Registrar,
whereupon the Property Trustee, in accordance with the rules and
procedures of the Depositary for such Global Preferred Security
(the "Applicable Procedures"), shall instruct the Clearing Agency
or its authorized representative to make a corresponding
adjustment to its records. Upon any such surrender or adjustment
of a Global Preferred Security by the Clearing Agency,
accompanied by registration instructions, the Administrative
Trustees shall execute and the Property Trustee shall, subject
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to Section 5.4(b) and as otherwise provided in this Article V,
authenticate and deliver any Preferred Securities issuable in
exchange for such Global Preferred Security (or any portion
thereof) in accordance with the instructions of the Clearing
Agency. The Property Trustee shall not be liable for any delay in
delivery of such instructions and may conclusively rely on, and
shall be fully protected in relying on, such instructions.
(d) Every Preferred Security executed, authenticated and delivered
upon registration of transfer of, or in exchange for or in lieu
of, a Global Preferred Security or any portion thereof, whether
pursuant to this Article V or otherwise, shall be executed,
authenticated and delivered in the form of, and shall be, a
Global Preferred Security, unless such Global Preferred Security
is registered in the name of a Person other than the Clearing
Agency for such Global Preferred Security or a nominee thereof.
(e) The Clearing Agency or its nominee, as the registered owner of a
Global Preferred Security, shall be considered the Holder of the
Preferred Securities represented by such Global Preferred
Security for all purposes under this Trust Agreement and the
Preferred Securities, and owners of beneficial interests in such
Global Preferred Security shall hold such interests pursuant to
the Applicable Procedures and, except as otherwise provided
herein, shall not be entitled to receive physical delivery of any
such Preferred Securities in definitive form and shall not be
considered the Holders thereof under this Trust Agreement.
Accordingly, any such owner's beneficial interest in the Global
Preferred Securities shall be shown only on, and the transfer of
such interest shall be effected only through, records maintained
by the Clearing Agency or its nominee. Neither the Property
Trustee, the Securities Registrar nor the Depositor shall have
any liability in respect of any transfers effected by the
Clearing Agency.
(f) The rights of owners of beneficial interests in a Global
Preferred Security shall be exercised only through the Clearing
Agency and shall be limited to those established by law and
agreements between such owners and the Clearing Agency.
5.4 Registration of Transfer and Exchange of Preferred Securities
Certificates.
(a) The Depositor shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 5.8, a register or
registers for the purpose of registering Trust Securities
Certificates and, subject to the provisions of Section 5.3A,
transfers and exchanges of Preferred Securities Certificates
(herein referred to as the "Securities Register") in which the
registrar designated by the Depositor (the "Securities
Registrar"), subject to such reasonable regulations as it may
prescribe, shall provide for the registration of Preferred
Securities Certificates and Common Securities Certificates
(subject to Section 5.10 in the case of the Common Securities
Certificates) and registration of transfers and exchanges of
Preferred
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Securities Certificates as herein provided. The Property Trustee
shall be the initial Securities Registrar.
(b) Subject to the provisions of Section 5.3A, upon surrender for
registration of transfer of any Preferred Securities Certificate
at the office or agency maintained pursuant to Section 5.8, the
Administrative Trustees or any one of them shall execute and
deliver, in the name of the designated transferee or transferees,
one or more new Preferred Securities Certificates in authorized
denominations of a like aggregate Liquidation Amount dated the
date of execution by such Administrative Trustee or Trustees. The
Securities Registrar shall not be required to register the
transfer of any Preferred Securities that have been called for
redemption. At the option of a Holder, Preferred Securities
Certificates may be exchanged for other Preferred Securities
Certificates in authorized denominations of the same class and of
a like aggregate Liquidation Amount upon surrender of the
Preferred Securities Certificates to be exchanged at the office
or agency maintained pursuant to Section 5.8.
(c) Every Preferred Securities Certificate presented or surrendered
for registration of transfer or exchange, subject to the
provisions of Section 5.3A, shall be accompanied by a written
instrument of transfer in form satisfactory to the Property
Trustee and the Securities Registrar duly executed by the Holder
or his attorney duly authorized in writing. Each Preferred
Securities Certificate surrendered for registration of transfer
or exchange shall be canceled and subsequently disposed of by the
Property Trustee in accordance with its customary practice. The
Trust shall not be required to (i) issue, register the transfer
of, or exchange any Preferred Securities during a period
beginning at the opening of business 15 calendar days before the
date of mailing of a notice of redemption of any Preferred
Securities called for redemption and ending at the close of
business on the day of such mailing; or (ii) register the
transfer of or exchange any Preferred Securities so selected for
redemption, in whole or in part, except the unredeemed portion of
any such Preferred Securities being redeemed in part.
(d) No service charge shall be made for any registration of transfer
or exchange of Preferred Securities Certificates, subject to the
provisions of Section 5.3A, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any
transfer or exchange of Preferred Securities Certificates.
(e) Preferred Securities may only be transferred, in whole or in
part, in accordance with the terms and conditions set forth in
this Trust Agreement. To the fullest extent permitted by law, any
transfer or purported transfer of any Preferred Security not made
in accordance with this Trust Agreement shall be null and void. A
Preferred Security that is
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not a Global Preferred Security may be transferred, in whole or
in part, to a Person who takes delivery in the form of another
Preferred Security that is not a Global Preferred Security as
provided in Section 5.4(a). A beneficial interest in a Global
Preferred Security may be exchanged for a Preferred Security that
is not a Global Preferred Security only as provided in Section
5.3A.
5.5 Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates.
If (a) any mutilated Trust Securities Certificate shall be surrendered to
the Securities Registrar, or if the Securities Registrar shall receive evidence
to its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate; and (b) there shall be delivered to the Securities Registrar and
the Administrative Trustees such security or indemnity as may be required by
them to save each of them harmless, then in the absence of notice that such
Trust Securities Certificate shall have been acquired by a protected purchaser,
the Administrative Trustees, or any one of them, on behalf of the Trust shall
execute and make available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities Certificate, a new Trust
Securities Certificate of like class, tenor and denomination. In connection with
the issuance of any new Trust Securities Certificate under this Section 5.5, the
Administrative Trustees or the Securities Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith. Any duplicate Trust Securities Certificate issued
pursuant to this Section 5.5 shall constitute conclusive evidence of an
undivided beneficial interest in the assets of the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
5.6 Persons Deemed Securityholders.
The Trustees, the Paying Agent and the Securities Registrar shall treat the
Person in whose name any Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities Certificate for the
purpose of receiving Distributions and for all other purposes whatsoever, and
neither the Trustees nor the Securities Registrar shall be bound by any notice
to the contrary.
5.7 Access to List of Securityholders' Names and Addresses.
At any time when the Property Trustee is not also acting as the Securities
Registrar, the Administrative Trustees or the Depositor shall furnish or cause
to be furnished to the Property Trustee (a) within five Business Days of March
15, June 15, September 15 and December 15 of each year, a list, in such form as
the Property Trustee may reasonably require, of the names and addresses of the
Securityholders as of the most recent record date; and (b) promptly after
receipt by any Administrative Trustee or the Depositor of a request therefor
from the Property Trustee in order to enable the Property Trustee to discharge
its obligations under this Trust Agreement, in each case to the extent such
information is in the possession or control of the Administrative Trustees or
the Depositor and is not identical to a previously supplied list or has not
otherwise been received by the Property Trustee in its capacity as Securities
Registrar. The rights of Securityholders to communicate with other
Securityholders with respect to their rights under this Trust Agreement or under
the Trust Securities, and the corresponding rights of the Trustee shall be as
provided in the
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Trust Indenture Act. Each Holder, by receiving and holding a Trust Securities
Certificate, and each owner shall be deemed to have agreed not to hold the
Depositor, the Property Trustee or the Administrative Trustees accountable by
reason of the disclosure of its name and address, regardless of the source from
which such information was derived.
5.8 Maintenance of Office or Agency.
The Administrative Trustees shall maintain, or cause to be maintained, in
Wilmington, Delaware, or other location designated by the Administrative
Trustees, an office or offices or agency or agencies where Preferred Securities
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Trustees in respect of the Trust
Securities Certificates may be served. The Administrative Trustees initially
designate the Corporate Trust Office of the Property Trustee, One Rodney Square,
920 King Street, Suite 102, Wilmington, Delaware 19801, Attention: Corporate
Trust Trustee Administration, as the principal corporate trust office for such
purposes. The Administrative Trustees shall give prompt written notice to the
Depositor and to the Securityholders of any change in the location of the
Securities Register or any such office or agency.
5.9 Appointment of Paying Agent.
The Paying Agent shall make Distributions to Securityholders from the
Payment Account and shall report the amounts of such Distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account for the purpose
of making the Distributions referred to above. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect. The Paying Agent
shall initially be the Property Trustee, and any co-paying agent chosen by the
Property Trustee must be acceptable to the Administrative Trustees and the
Depositor. Any Person acting as Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Administrative Trustees, the
Property Trustee and the Depositor. In the event that the Property Trustee shall
no longer be the Paying Agent or a successor Paying Agent shall resign or its
authority to act be revoked, the Administrative Trustees shall appoint a
successor that is acceptable to the Property Trustee and the Depositor to act as
Paying Agent (which shall be a bank or trust company). The Administrative
Trustees shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Administrative Trustees to execute and deliver to the Trustees
an instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying Agent
or additional Paying Agent shall hold all sums, if any, held by it for payment
to the Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and, upon removal of a
Paying Agent, such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6 shall apply to
the Property Trustee also in its role as Paying Agent, for so long as the
Property Trustee shall act as Paying Agent and, to the extent applicable, to any
other Paying Agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
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5.10 Ownership of Common Securities by Depositor.
On the Closing Date and on any Option Closing Date, the Depositor shall
acquire and retain beneficial and record ownership of the Common Securities. To
the fullest extent permitted by law, any attempted transfer of the Common
Securities (other than a transfer in connection with a merger or consolidation
of the Depositor into another corporation pursuant to Section 9.1 of the
Indenture) shall be void. The Administrative Trustees shall cause each Common
Securities Certificate issued to the Depositor to contain a legend stating "THIS
CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN THE TRUST AGREEMENT (AS
DEFINED BELOW)."
5.11 Trust Securities Certificates.
(a) Upon their original issuance, Preferred Securities Certificates
shall be issued in the form of one or more fully registered
Global Preferred Securities Certificates which will be deposited
with or on behalf of the Clearing Agency and registered in the
name of the Clearing Agency's nominee. Unless and until it is
exchangeable in whole or in part for the Preferred Securities in
definitive form, a global security may not be transferred except
as a whole by the Clearing Agency to a nominee of the Clearing
Agency or by a nominee of the Clearing Agency to the Clearing
Agency or another nominee of the Clearing Agency or by the
Clearing Agency or any such nominee to a successor of such
Clearing Agency or a nominee of such successor.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a
definitive Common Securities Certificate.
5.12 Notices to Clearing Agency.
To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, for so long as Preferred Securities are
represented by a Global Preferred Securities Certificate, the Trustees shall
give all such notices and communications specified herein to be given to the
Clearing Agency, and shall have no obligation to provide notice to the owners of
the beneficial interest in the Global Preferred Securities.
5.13 Rights of Securityholders.
(a) The legal title to the Trust Property is vested exclusively in
the Property Trustee (in its capacity as such) in accordance with
Section 2.9, and the Securityholders shall not have any right or
title therein other than the undivided beneficial interest in the
assets of the Trust conferred by their Trust Securities and they
shall have no right to call for any partition or division of
property, profits or rights of the Trust except as described
below. The Trust Securities shall be personal property giving
only the rights specifically set forth therein and in this Trust
Agreement. The Trust Securities shall have no preemptive or
similar rights. When issued and
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delivered to Holders of the Preferred Securities against payment
of the purchase price therefor, the Preferred Securities shall be
fully paid and nonassessable interests in the Trust. The Holders
of the Preferred Securities, in their capacities as such, shall
be entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
(b) For so long as any Preferred Securities remain Outstanding, if,
upon a Debenture Event of Default, the Debenture Trustee fails or
the holders of not less than 25% in principal amount of the
outstanding Debentures fail to declare the principal of all of
the Debentures to be immediately due and payable, the Holders of
at least 25% in Liquidation Amount of the Preferred Securities
then Outstanding shall have such right by a notice in writing to
the Depositor and the Debenture Trustee; and upon any such
declaration such principal amount of and the accrued interest on
all of the Debentures shall become immediately due and payable,
provided that the payment of principal and interest on such
Debentures shall remain subordinated to the extent provided in
the Indenture.
(c) For so long as any Preferred Securities remain Outstanding, upon
a Debenture Event of Default arising from the failure to pay
interest or principal on the Debentures, the Holders of any
Preferred Securities then Outstanding shall, to the fullest
extent permitted by law, have the right to directly institute
proceedings for enforcement of payment to such Holders of
principal of or interest on the Debentures having a principal
amount equal to the Liquidation Amount of the Preferred
Securities of such Holders.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
6.1 Limitations on Voting Rights.
(a) Except as provided in this Section 6.1, in Sections 5.13, 8.10
and 10.2 and in the Indenture and as otherwise required by law,
no record Holder of Preferred Securities shall have any right to
vote or in any manner otherwise control the administration,
operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained
in the terms of the Trust Securities Certificates, be construed
so as to constitute the Securityholders from time to time as
partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee on
behalf of the Trust, the Trustees shall not (i) direct the time,
method and place of conducting any proceeding for any remedy
available to the Debenture Trustee, or executing any trust or
power conferred on the Debenture
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Trustee with respect to such Debentures; (ii) waive any past
default which is waivable under Article V of 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 to any amendment, modification or termination of the
Indenture or the Debentures, where such consent shall be
required, without, in each case, obtaining the prior approval of
the Holders of at least a majority in Liquidation Amount of all
Outstanding Preferred Securities; provided, however, that where a
consent under the Indenture would require the consent of each
holder of outstanding Debentures affected thereby, no such
consent shall be given by the Property Trustee without the prior
written consent of each Holder of Preferred Securities. The
Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of the Outstanding Preferred
Securities, except by a subsequent vote of the Holders of the
Outstanding Preferred Securities. The Property Trustee shall
notify each Holder of the Outstanding Preferred Securities of any
notice of default received from the Debenture Trustee with
respect to the Debentures. In addition to obtaining the foregoing
approvals of the Holders of the Preferred Securities, prior to
taking any of the foregoing actions, the Trustees shall, at the
expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust shall
continue to be classified as a grantor trust and not as an
association taxable as a corporation for United States federal
income tax purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement provides for, or
the Trustees otherwise propose to effect, (i) any action that
would adversely affect in any material respect the powers,
preferences or special rights of the Preferred Securities,
whether by way of amendment to the Trust Agreement or otherwise;
or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Trust Agreement, then
the Holders of Outstanding Preferred Securities as a class shall
be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the
approval of the Holders of at least a majority in Liquidation
Amount of the Outstanding Preferred Securities. No amendment to
this Trust Agreement may be made if, as a result of such
amendment, the Trust would cease to be classified as a grantor
trust or would be classified as an association taxable as a
corporation for United States federal income tax purposes.
6.2 Notice of Meetings.
Notice of all meetings of the Preferred Securityholders, stating the time,
place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 10.8 to each Preferred Securityholder of record, at his
registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be so
considered
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whether or not stated in the notice of the meeting. Any adjourned meeting may be
held as adjourned without further notice.
6.3 Meetings of Preferred Securityholders.
(a) No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of
Securityholders to vote on any matter in respect of which
Preferred Securityholders are entitled to vote upon the written
request of the Preferred Securityholders of 25% of the
Outstanding Preferred Securities (based upon their aggregate
Liquidation Amount) and the Administrative Trustees or the
Property Trustee may, at any time in their discretion, call a
meeting of Preferred Securityholders to vote on any matters as to
which the Preferred Securityholders are entitled to vote.
(b) Preferred Securityholders of record of 50% of the Outstanding
Preferred Securities (based upon their aggregate Liquidation
Amount), present in person or by proxy, shall constitute a quorum
at any meeting of Securityholders.
(c) If a quorum is present at a meeting, an affirmative vote by the
Preferred Securityholders of record present, in person or by
proxy, holding a majority of the Preferred Securities (based upon
their aggregate Liquidation Amount) held by the Preferred
Securityholders of record present, either in person or by proxy,
at such meeting shall constitute the action of the
Securityholders, unless this Trust Agreement requires a greater
number of affirmative votes.
6.4 Voting Rights.
Securityholders shall be entitled to one vote for each $10 of Liquidation
Amount represented by their Trust Securities (with any fractional multiple
thereof rounded up or down as the case may be to the closest integral multiple)
in respect of any matter as to which such Securityholders are entitled to vote.
6.5 Proxies, etc.
At any meeting of Securityholders, any Securityholder entitled to vote
thereat may vote by proxy, provided that no proxy, shall be voted at any meeting
unless it shall have been placed on file with the Administrative Trustees, or
with such other officer or agent of the Trust as the Administrative Trustees may
direct, for verification prior to the time at which such vote shall be taken.
Only Holders shall be entitled to vote. When Trust Securities are held jointly
by several Persons, any one of them may vote at any meeting in person or by
proxy in respect of such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to be executed
by or on behalf of a Securityholder shall be deemed valid unless challenged at
or prior to its exercise, and, the burden of
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proving invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
6.6 Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may be taken
without a meeting and without prior notice if all Securityholders are provided
with a request for written consent and Securityholders holding a majority of all
Outstanding Trust Securities (based upon their aggregate Liquidation Amount)
entitled to vote in respect of such action (or such larger proportion thereof as
shall be required by any express provision of this Trust Agreement) shall
consent to the action in writing (based upon their aggregate Liquidation
Amount).
6.7 Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or by written consent, or to participate in
any Distribution on the Trust Securities in respect of which a record date is
not otherwise provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees or the Property Trustee may from time
to time fix a date, not more than 90 days prior to the date of any meeting of
Securityholders or the payment of Distribution or other action, as the case may
be, as a record date for the determination of the identity of the
Securityholders of record for such purposes.
6.8 Acts of Securityholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Trust
Agreement to be given, made or taken by Securityholders may be
embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders in
person or by an agent duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become
effective when such instrument or instruments are delivered to an
Administrative Trustee. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Securityholders signing
such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and (subject
to Section 8.1) conclusive in favor of the Trustees, if made in
the manner provided in this Section 6.8.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the
execution of any such instrument
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or writing, or the authority of the Person executing the same,
may also be proved in any other manner which any Trustee
receiving the same deems sufficient.
(c) The ownership of Preferred Securities shall be proved by the
Securities Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Securityholder of any Trust Security
shall bind every future Securityholder of the same Trust Security
and the Securityholder of every Trust Security issued upon the
registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether
or not notation of such action is made upon such Trust Security.
(e) Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any
particular Trust Security may do so with regard to all or any
part of the Liquidation Amount of such Trust Security or by one
or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of such
liquidation amount.
6.9 Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Trust shall be open to inspection at the principal
executive office of the Trust (as indicated in Section 2.2) by Holders of the
Trust Securities during normal business hours for any purpose reasonably related
to such Holder's interest as a Holder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1 Representations and Warranties of the Bank.
The Bank, as of the date hereof, and each successor Property Trustee at the
time of the successor Property Trustee's acceptance of its appointment as
Property Trustee hereunder (in the case of a successor Property Trustee, the
term "Bank" as used herein shall be deemed to refer to such successor Property
Trustee in its separate corporate capacity), hereby represents and warrants (as
applicable) for the benefit of the Depositor and the Securityholders that:
(a) the Bank is duly organized, validly existing and in good standing
under the federal laws of the United States of America and has
its principal place of business in Delaware as required by
Section 3807(a) of the Delaware Business Trust Act;
(b) the Bank has full corporate power, authority and legal right to
execute, deliver and perform its obligations under this Trust
Agreement and has
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taken all necessary action to authorize the execution, delivery
and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Bank and constitutes the valid and legally
binding agreement of the Bank enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors,
rights and to general equity principles;
(d) the execution, delivery and performance by the Bank of this Trust
Agreement have been duly authorized by all necessary corporate or
other action on the part of the Bank and do not require any
approval of stockholders of the Bank and such execution, delivery
and performance shall not (i) violate the Bank's Articles of
Organization or by-laws; (ii) violate any provision of, or
constitute, with or without notice or lapse of time, a default
under, or result in the creation or imposition of, any Lien on
any properties included in the Trust Property pursuant to the
provisions of, any indenture, mortgage, credit agreement, license
or other agreement or instrument to which the Bank is a party or
by which it is bound; or (iii) violate any law, governmental rule
or regulation of the United States or the State of Delaware, as
the case may be, governing the banking or trust powers of the
Bank or any order, judgment or decree applicable to the Bank;
(e) neither the authorization, execution or delivery by the Bank of
this Trust Agreement nor the consummation of any of the
transactions by the Bank contemplated herein or therein requires
the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect
to any governmental authority or agency under any existing
federal law governing the banking or trust powers of the Bank
under the laws of the United States or the State of Delaware;
(f) there are no proceedings pending or, to the best of the Bank's
knowledge, threatened against or affecting the Bank in any court
or before any governmental authority, agency or arbitration board
or tribunal which, individually or in the aggregate, would
materially and adversely affect the Trust or would question the
right, power and authority of the Bank to enter into or perform
its obligations as one of the Trustees under this Trust
Agreement; and
(g) the Bank is a Person eligible pursuant to the Trust Indenture Act
to act as such and has a combined capital and surplus of at least
$50,000,000.
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7.2 [RESERVED]
7.3 Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued on the Closing Date or
the Option Closing Date, if applicable, on behalf of the Trust
have been duly authorized and, shall have been, duly and validly
executed, issued and delivered by the Administrative Trustees
pursuant to the terms and provisions of, and in accordance with
the requirements of, this Trust Agreement and the Securityholders
shall be, as of such date, entitled to the benefits of this Trust
Agreement; and
(b) there are no taxes, fees or other governmental charges payable by
the Trust (or the Trustees on behalf of the Trust) in connection
with the execution, delivery and performance by the Bank, the
Property Trustee or the Delaware Trustee, as the case may be, of
this Trust Agreement.
ARTICLE VIII
TRUSTEES
8.1 Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property
Trustee, by the Trust Indenture Act. Notwithstanding the
foregoing, no provision of this Trust Agreement shall require the
Trustees to expend or risk their own funds or otherwise incur any
financial liability in the performance of any of their duties
hereunder, or in the exercise of any of their rights or powers,
if they shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. No Administrative
Trustee nor the Delaware Trustee shall be liable for its act or
omissions hereunder except as a result of its own gross
negligence or willful misconduct. The Property Trustee's
liability shall be determined under the Trust Indenture Act.
Whether or not therein expressly so provided, every provision of
this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be
subject to the provisions of this Section 8.1. To the extent
that, at law or in equity, the Delaware Trustee or an
Administrative Trustee has duties (including fiduciary duties)
and liabilities relating thereto to the Trust or to the
Securityholders, the Delaware Trustee or such Administrative
Trustee shall not be liable to the Trust or to any Securityholder
for such Trustee's good faith reliance on the provisions of this
Trust Agreement. The provisions of this Trust Agreement, to the
extent that they restrict the duties and liabilities of the
Delaware Trustee or
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the Administrative Trustees otherwise existing at law or in
equity, are agreed by the Depositor and the Securityholders to
replace such other duties and liabilities of the Delaware Trustee
or the Administrative Trustees, as the case may be.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the
revenue and proceeds from the Trust Property and only to the
extent that there shall be sufficient revenue or proceeds from
the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each
Securityholder, by its acceptance of a Trust Security, agrees
that it shall 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 are not personally
liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust
Security. This Section 8.1(b) does not limit the liability of the
Trustees expressly set forth elsewhere in this Trust Agreement
or, in the case of the Property Trustee, in the Trust Indenture
Act.
(c) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the
Property Trustee, unless it shall be proved that the
Property Trustee was negligent in ascertaining the pertinent
facts;
(ii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less
than a majority in Liquidation Amount of the Trust
Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred
upon the Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the
Debentures and the Payment Account shall be to deal with
such property in a similar manner as the Property Trustee
deals with similar property for its own account, subject to
the protections and limitations on liability afforded to the
Property Trustee under this Trust Agreement and the Trust
Indenture Act;
(iv) the Property Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree
with the
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Depositor and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to
the Payment Account maintained by the Property Trustee
pursuant to Section 3.1 and except to the extent otherwise
required by law; and
(d) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrative Trustees or the Depositor with
their respective duties under this Trust Agreement, nor shall the
Property Trustee be liable for the negligence, default or
misconduct of the Administrative Trustees or the Depositor.
8.2 Certain Notices.
(a) Within five Business Days after the occurrence of any Event of
Default actually known to the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided
in Section 10.8, notice of such Event of Default to the
Securityholders, the Administrative Trustees and the Depositor,
unless such Event of Default shall have been cured or waived. For
purposes of this Section 8.2 the term "Event of Default" means
any event that is, or after notice or lapse of time or both would
become, an Event of Default.
(b) The Administrative Trustees shall transmit, to the
Securityholders in the manner and to the extent provided in
Section 10.8, notice of the Depositor's election to begin or
further extend an Extended Interest Payment Period on the
Debentures (unless such election shall have been revoked) and of
any election by the Depositor to accelerate the Maturity Date of
the Debentures, as defined in the Indenture, within the time
specified for transmitting such notice to the holders of the
Debentures pursuant to the Indenture as originally executed.
8.3 Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion
of Counsel, certificate, written representation of a Holder or
transferee, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party
or parties;
(b) if (i) in performing its duties under this Trust Agreement, the
Property Trustee is required to decide between alternative
courses of action; or (ii) in construing any of the provisions of
this Trust Agreement, the
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Property Trustee finds the same ambiguous or inconsistent with
other provisions contained herein; or (iii) the Property Trustee
is unsure of the application of any provision of this Trust
Agreement, then, except as to any matter as to which the
Preferred Securityholders are entitled to vote under the terms of
this Trust Agreement, the Property Trustee shall deliver a notice
to the Depositor requesting written instructions of the Depositor
as to the course of action to be taken and the Property Trustee
shall take such action, or refrain from taking such action, as
the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that
if the Property Trustee does not receive such instructions of the
Depositor within 10 Business Days after it has delivered such
notice, or such reasonably shorter period of time set forth in
such notice (which to the extent practicable shall not be less
than 2 Business Days), it may, but shall be under no duty to,
take or refrain from taking such action not inconsistent with
this Trust Agreement as it shall deem advisable and in the best
interests of the Securityholders, in which event the Property
Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(c) any direction or act of the Depositor or the Administrative
Trustees contemplated by this Trust Agreement shall be
sufficiently evidenced by an Officers' Certificate;
(d) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be
established before undertaking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its
part, request and conclusively rely upon an Officers' Certificate
which, upon receipt of such request, shall be promptly delivered
by the Depositor or the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing
or continuation statement, any filing under tax or securities
laws or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel of its choice
(which counsel may be counsel to the Depositor 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, such
counsel may be counsel to the Depositor or any of its Affiliates,
and may include any of its employees; the Property Trustee shall
have the right at any time to seek instructions concerning the
administration of this Trust Agreement from any court of
competent jurisdiction;
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(g) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Trust Agreement at
the request or direction of any of the Securityholders pursuant
to this Trust Agreement, unless such Securityholders shall have
offered to the Property Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
nothing contained herein shall, however, relieve the Property
Trustee of the obligation, upon the occurrence of any Event of
Default (that has not been cured or waived) to exercise such of
the rights and powers vested in it by this Trust Agreement, and
to use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the
conduct of his own affairs;
(h) the Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in
writing to do so by one or more Securityholders, but the Property
Trustee may make such further inquiry or investigation into such
facts or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through its agents or attorneys, and the Property Trustee
shall not be liable for the default or misconduct of such other
agents or attorneys; provided that the Property Trustee shall be
responsible for its own negligence or recklessness with respect
to selection of any agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder the Property Trustee (i) may request
instructions from the Holders of the Trust Securities which
instructions may only be given by the Holders of the same
proportion in Liquidation Amount of the Trust Securities as would
be entitled to direct the Property Trustee under the terms of the
Trust Securities in respect of such remedy, right or action; (ii)
may refrain from enforcing such remedy or right or taking such
other action until such instructions are received; and (iii)
shall be protected in acting in accordance with such
instructions; and
(k) except as otherwise expressly provided by this Trust Agreement,
the Property Trustee shall not be under any obligation to take
any action that is discretionary under the provisions of this
Trust Agreement. No provision of this Trust Agreement shall be
deemed to impose any duty or obligation on the Property Trustee
to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it, in any jurisdiction in
which it shall be illegal, or in which the Property Trustee
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shall be unqualified or incompetent in accordance with applicable
law, to perform any such act or acts, or to exercise any such
right, power, duty or obligation. No permissive power or
authority available to the Property Trustee shall be construed to
be a duty.
8.4 Not Responsible for Recitals or Issuance of Securities.
The Recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Trust, and the Trustees do not assume
any responsibility for their correctness. The Trustees shall not be accountable
for the use or application by the Depositor of the proceeds of the Debentures.
8.5 May Hold Securities.
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 8.8 and 8.13 and except as provided in the
definition of the term "Outstanding" in Article I, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
8.6 Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Trustees from time to time compensation for all
services rendered by them hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation
of a trustee of an express trust), in the case of the Property
Trustee, as set forth in a written agreement between the
Depositor and the Property Trustee;
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustees in accordance with
any provision of this Trust Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may
be attributable to such Trustee's negligence, bad faith or
willful misconduct (or, in the case of the Administrative
Trustees or the Delaware Trustee, any such expense, disbursement
or advance as may be attributable to its, his or her gross
negligence, bad faith or willful misconduct); and
(c) to indemnify each of the Trustees or any predecessor Trustee for,
and to hold the Trustees harmless against, any loss, damage,
claims, liability, penalty or expense of any kind or nature
whatsoever, arising out of or in connection with the acceptance
or administration of this Trust Agreement, including the costs
and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its
powers or duties hereunder, except any such expense, disbursement
or advance as may be attributable to such Trustee's negligence,
bad faith or
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willful misconduct for (or, in the case of the Administrative
Trustees or the Delaware Trustee, any such expense, disbursement
or advance as may be attributable to its, his or her gross
negligence, bad faith or willful misconduct).
No Trustee may claim any Lien or charge on Trust Property as a result of
any amount due and unpaid pursuant to this Section 8.6.
8.7 Corporate Property Trustee Required; Eligibility of Trustees.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a
Person that is eligible pursuant to the Trust Indenture Act to
act as such and has a combined capital and surplus of at least
$50,000,000. If any such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this
Section 8.7, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at
any time the Property Trustee with respect to the Trust
Securities shall cease to be eligible in accordance with the
provisions of this Section 8.7, it shall resign immediately in
the manner and with the effect hereinafter specified in this
Article VIII. The Property Trustee and the Delaware Trustee may
be the same Person.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who is at
least 21 years of age or a legal entity that shall act through
one or more persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee with respect to
the Trust Securities. The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age and a resident of
the State of Delaware; or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise
meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity.
8.8 Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement.
8.9 Co-Trustees and Separate Trustee.
(a) Unless a Debenture Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the
legal
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requirements of the Trust Indenture Act or of any jurisdiction in
which any part of the Trust Property may at the time be located,
the Depositor shall have power to appoint, and upon the written
request of the Property Trustee, the Depositor shall for such
purpose join with the Property Trustee in the execution, delivery
and performance of all instruments and agreements necessary or
proper to appoint, one or more Persons approved by the Property
Trustee either to act as co-trustee, jointly with the Property
Trustee, of all or any part of such Trust Property, or to the
extent required by law to act as separate trustee of any such
property, in either case with such powers as may be provided in
the instrument of appointment, and to vest in such Person or
Persons in the capacity aforesaid, any property, title, right or
power deemed necessary or desirable, subject to the other
provisions of this Section 8.9. If the Depositor does not join in
such appointment within 15 days after the receipt by it of a
request so to do, or in case a Debenture Event of Default has
occurred and is continuing, the Property Trustee alone shall have
power to make such appointment. Any co-trustee or separate
trustee appointed pursuant to this Section 8.9 shall either be
(i) a natural person who is at least 21 years of age and a
resident of the United States; or (ii) a legal entity with its
principal place of business in the United States that shall act
through one or more persons authorized to bind such entity.
(b) Should any written instrument from the Depositor be required by
any co-trustee or separate trustee so appointed for more fully
confirming to such co-trustee or separate trustee such property,
title, right, or power, any and all such instruments shall, on
request, be executed, acknowledged, and delivered by the
Depositor.
(c) Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject
to the following terms, namely:
(i) The Trust Securities shall be executed and delivered and all
rights, powers, duties and obligations hereunder in respect
of the custody of securities, cash and other personal
property held by, or required to be deposited or pledged
with, the Trustees specified hereunder, shall be exercised,
solely by such Trustees and not by such co-trustee or
separate trustee.
(ii) The rights, powers, duties and obligations hereby conferred
or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or
imposed upon and exercised or performed by the Property
Trustee or by the Property Trustee and such co-trustee or
separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee,
except to the extent that under any law of any jurisdiction
in which any particular act is to be performed, the
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Property Trustee shall be incompetent or unqualified to
perform such act, in which event such rights, powers, duties
and obligations shall be exercised and performed by such
co-trustee or separate trustee.
(iii) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the
Depositor, may accept the resignation of or remove any
co-trustee or separate trustee appointed under this Section
8.9, and, in case a Debenture Event of Default has occurred
and is continuing, the Property Trustee shall have the power
to accept the resignation of, or remove, any such co-trustee
or separate trustee without the concurrence of the
Depositor. Upon the written request of the Property Trustee,
the Depositor shall join with the Property Trustee in the
execution, delivery and performance of all instruments and
agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or
separate trustee so resigned or removed may be appointed in
the manner provided in this Section 8.9.
(iv) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the
Property Trustee or any other trustee hereunder.
(v) The Property Trustee shall not be liable by reason of any
act of a co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property Trustee shall
be deemed to have been delivered to each such co-trustee and
separate trustee.
8.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of any Trustee (the "Relevant Trustee")
and no appointment of a successor Trustee pursuant to this
Article VIII shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the
applicable requirements of Section 8.11.
(b) Subject to the immediately preceding paragraph, the Relevant
Trustee may resign at any time with respect to the Trust
Securities by giving written notice thereof to the
Securityholders. If the instrument of acceptance by the successor
Trustee required by Section 8.11 shall not have been delivered to
the Relevant Trustee within 30 days after the giving of such
notice of resignation, the Relevant Trustee may petition, at the
expense of the Depositor, any court of competent jurisdiction for
the appointment of a successor Relevant Trustee with respect to
the Trust Securities.
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(c) Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the
Common Securityholder. If a Debenture Event of Default shall have
occurred and be continuing, the Property Trustee or the Delaware
Trustee, or both of them, may be removed at such time by Act of
the Holders of a majority in Liquidation Amount of the Preferred
Securities, delivered to the Relevant Trustee (in its individual
capacity and on behalf of the Trust). An Administrative Trustee
may be removed by the Common Securityholder at any time.
(d) If any Trustee shall resign, be removed or become incapable of
acting as Trustee, or if a vacancy shall occur in the office of
any Trustee for any cause, at a time when no Debenture Event of
Default shall have occurred and be continuing, the Common
Securityholder, by Act of the Common Securityholder delivered to
the retiring Trustee, shall promptly appoint a successor Trustee
or Trustees with respect to the Trust Securities and the Trust,
and the successor Trustee shall comply with the applicable
requirements of Section 8.11. If the Property Trustee or the
Delaware Trustee shall resign, be removed or become incapable of
continuing to act as the Property Trustee or the Delaware
Trustee, as the case may be, at a time when a Debenture Event of
Default shall have occurred and is continuing, the Preferred
Securityholders, by Act of the Securityholders of a majority in
Liquidation Amount of the Preferred Securities then Outstanding
delivered to the retiring Relevant Trustee, shall promptly
appoint a successor Relevant Trustee or Trustees with respect to
the Trust Securities and the Trust, and such successor Trustee
shall comply with the applicable requirements of Section 8.11. If
an Administrative Trustee shall resign, be removed or become
incapable of acting as Administrative Trustee, at a time when a
Debenture Event of Default shall have occurred and be continuing,
the Common Securityholder, by Act of the Common Securityholder
delivered to an Administrative Trustee, shall promptly appoint a
successor Administrative Trustee or Administrative Trustees with
respect to the Trust Securities and the Trust, and such successor
Administrative Trustee or Administrative Trustees shall comply
with the applicable requirements of Section 8.11. If no successor
Relevant Trustee with respect to the Trust Securities shall have
been so appointed by the Common Securityholder or the Preferred
Securityholders and accepted appointment in the manner required
by Section 8.11, any Securityholder who has been a Securityholder
of Trust Securities on behalf of himself and all others similarly
situated may petition a court of competent jurisdiction for the
appointment Trustee with respect to the Trust Securities.
(e) The Property Trustee shall give notice of each resignation and
each removal of a Trustee and each appointment of a successor
Trustee to all Securityholders in the manner provided in Section
10.8 and shall give notice to the Depositor. Each notice shall
include the name of the
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successor Relevant Trustee and the address of its Corporate Trust
office if it is the Property Trustee.
(f) Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Administrative Trustee or a
Delaware Trustee who is a natural person dies or becomes, in the
opinion of the Depositor, incompetent or incapacitated, the
vacancy created by such death, incompetence or incapacity may be
filled by (a) the unanimous act of remaining Administrative
Trustees if there are at least two of them; or (b) otherwise by
the Depositor (with the successor in each case being a Person who
satisfies the eligibility requirement for Administrative Trustees
set forth in Section 8.7).
8.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Relevant
Trustee with respect to the Trust Securities and the Trust, the
retiring Relevant Trustee (if requested by the Depositor) and
each successor Relevant Trustee with respect to the Trust
Securities shall execute and deliver an instrument hereto wherein
each successor Relevant Trustee shall accept such appointment and
which shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each
successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Trust
Securities and the Trust and upon the execution and delivery of
such instrument the resignation or removal of the retiring
Relevant Trustee shall become effective to the extent provided
therein and each such successor Relevant Trustee, without any
further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Relevant
Trustee with respect to the Trust Securities and the Trust; but,
on request of the Trust or any successor Relevant Trustee such
retiring Relevant Trustee shall duly assign, transfer and deliver
to such successor Relevant Trustee all Trust Property, all
proceeds thereof and money held by such retiring Relevant Trustee
hereunder with respect to the Trust Securities and the Trust.
(b) Upon request of any such successor Relevant Trustee, the Trust
shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Relevant
Trustee all such rights, powers and trusts referred to in the
immediately preceding paragraph, as the case may be.
(c) No successor Relevant Trustee shall accept its appointment unless
at the time of such acceptance such successor Relevant Trustee
shall be qualified and eligible under this Article VIII.
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8.12 Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee, the Delaware Trustee or any
Administrative 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 such Relevant Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of such Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such Person shall be otherwise qualified and eligible under
this Article VIII, without the execution or filing of any paper or any further
act on the part of any of the parties hereto.
8.13 Preferential Collection of Claims Against Depositor or Trust.
If and when the Property Trustee or the Delaware Trustee shall be or become
a creditor of the Depositor or the Trust (or any other obligor upon the
Debentures or the Trust Securities), the Property Trustee or the Delaware
Trustee, as the case may be, shall be subject to and shall take all actions
necessary in order to comply with the provisions of the Trust Indenture Act
regarding the collection of claims against the Depositor or Trust (or any such
other obligor).
8.14 Reports by Property Trustee.
(a) On or before July 31 of each year, commencing July 31, 2002, the
Property Trustee shall transmit to the Securityholders such
reports concerning the Property Trustee, its actions under this
Trust Agreement and the property and funds in its possession in
its capacity as the Property Trustee as may be required pursuant
to the Trust Indenture Act in the manner provided pursuant
thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with
The Nasdaq National Market, and each national securities exchange
or other organization upon which the Trust Securities are listed,
and also with the Commission and the Depositor.
8.15 Reports to the Property Trustee.
The Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a) of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the Trust Indenture
Act.
8.16 Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
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8.17 Number of Trustees.
(a) The number of Trustees shall be five, provided that the Holder of
all of the Common Securities by written instrument may increase
or decrease the number of Administrative Trustees. The Property
Trustee and the Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the number
of Administrative Trustees is not reduced pursuant to Section
8.17(a), or if the number of Trustees is increased pursuant to
Section 8.17(a), a vacancy shall occur. The vacancy shall be
filled with a Trustee appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee
shall not operate to annul the Trust. Whenever a vacancy in the
number of Administrative Trustees shall occur, until such vacancy
is filled by the appointment of an Administrative Trustee in
accordance with Section 8.10, the Administrative Trustees in
office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all the powers granted
to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Trust Agreement.
8.18 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over
the age of 21 his or her power for the purpose of executing any
documents contemplated in Section 2.7(a); and
(b) The Administrative Trustees shall have power to delegate from
time to time to such of their number or to the Depositor the
doing of such things and the execution of such instruments either
in the name of the Trust or the names of the Administrative
Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set
forth herein.
8.19 Voting.
Except as otherwise provided in this Trust Agreement, the consent or
approval of the Administrative Trustees shall require consent or approval by not
less than a majority of the Administrative Trustees, unless there are only two,
in which case both must consent.
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ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
9.1 Termination Upon Expiration Date.
Unless earlier dissolved, the Trust shall automatically dissolve on
December 31, 2032 (the "Expiration Date"), subject to distribution of the Trust
Property in accordance with Section 9.4.
9.2 Early Termination.
The first to occur of any of the following events is an "Early Termination
Event:"
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) delivery of written direction to the Property Trustee by the
Depositor at any time (which direction is wholly optional and
within the discretion of the Depositor, subject to Depositor
having received prior approval of the Board of Governors of the
Federal Reserve System if so required under applicable
guidelines, policies or regulations thereof) to dissolve the
Trust and distribute the Debentures to Securityholders in
exchange for the Preferred Securities in accordance with Section
9.4;
(c) the redemption of all of the Preferred Securities in connection
with the redemption of all of the Debentures (whether upon a
Debenture Redemption Date or the maturity of the Debenture); or
(d) an order for dissolution of the Trust shall have been entered by
a court of competent jurisdiction.
9.3 Termination.
The respective obligations and responsibilities of the Trustees and the
Trust created and continued hereby shall terminate upon the latest to occur of
the following: (a) the distribution by the Property Trustee to Securityholders
upon the liquidation of the Trust pursuant to Section 9.4, or upon the
redemption of all of the Trust Securities pursuant to Section 4.2, of all
amounts required to be distributed hereunder upon the final payment of the Trust
Securities; (b) the payment of any expenses owed by the Trust; (c) the discharge
of all administrative duties of the Administrative Trustees, including the
performance of any tax reporting obligations with respect to the Trust or the
Securityholders; and (d) the filing of a Certificate of Cancellation by an
Administrative Trustee under the Delaware Business Trust Act.
9.4 Liquidation.
(a) If an Early Termination Event specified in clause (a), (b), or
(d) of Section 9.2 occurs or upon the Expiration Date, the Trust
shall be liquidated by the Trustees as expeditiously as the
Trustees determine to be
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possible by distributing, after satisfaction of liabilities to
creditors of the Trust as provided by applicable law, to each
Securityholder a Like Amount of Debentures, subject to Section
9.4(d). Notice of liquidation shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not later
than 30 nor more than 60 days prior to the Liquidation Date to
each Holder of Trust Securities at such Holder's address
appearing in the Securities Register. All notices of liquidation
shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities shall no longer be deemed to be Outstanding and
any Trust Securities Certificates not surrendered for
exchange shall be deemed to represent a Like Amount of
Debentures; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for
Debentures, or, if Section 9.4(d) applies, receive a
Liquidation Distribution, as the Administrative Trustees or
the Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect
the liquidation of the Trust and distribution of the Debentures
to Securityholders, the Property Trustee shall establish a record
date for such distribution (which shall be not more than 45 days
prior to the Liquidation Date) and, either itself acting as
exchange agent or through the appointment of a separate exchange
agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange
for the Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities shall no longer be
deemed to be outstanding; (ii) certificates representing a Like
Amount of Debentures shall be issued to Holders of Trust
Securities Certificates upon surrender of such certificates to
the Administrative Trustees or their agent for exchange; (iii)
the Depositor shall use its reasonable efforts to have the
Debentures listed on the Nasdaq National Market or on such other
securities exchange or other organization as the Preferred
Securities are then listed or traded; (iv) any Trust Securities
Certificates not so surrendered for exchange shall be deemed to
represent a Like Amount of Debentures, accruing interest at the
rate provided for in the Debentures from the last Distribution
Date on which a Distribution was made on such Trust Securities
Certificates until such certificates are so surrendered (and
until such certificates are so surrendered, no payments of
interest or principal shall be made to Holders of Trust
Securities Certificates with respect to such Debentures); and (v)
all rights of Securityholders holding Trust Securities shall
cease,
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except the right of such Securityholders to receive Debentures
upon surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other provisions of this
Section 9.4, whether because of an order for dissolution entered
by a court of competent jurisdiction or otherwise, distribution
of the Debentures in the manner provided herein is determined by
the Property Trustee not to be practical, the Trust Property
shall be liquidated, and the Trust shall be wound-up by the
Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the winding up of the
Trust, Securityholders shall be entitled to receive out of the
assets of the Trust available for distribution to
Securityholders, after satisfaction of liabilities to creditors
of the Trust as provided by applicable law, an amount equal to
the Liquidation Amount per Trust Security plus accumulated and
unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"). If the Liquidation
Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust
Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts). The Holder of the Common Securities shall
be entitled to receive Liquidation Distributions upon any such
dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Preferred Securities, except that, if
a Debenture Event of Default has occurred and is continuing, the
Preferred Securities shall have a priority over the Common
Securities.
9.5 Mergers, Consolidations, Amalgamations or Replacements of the Trust.
The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other Person, except pursuant
to this Section 9.5. At the request of the Depositor, with the consent of the
Administrative Trustees and without the consent of the Holders of the Preferred
Securities, the Property Trustee or the Delaware Trustee, the Trust may merge
with or into, consolidate, amalgamate, be replaced by or convey, transfer or
lease its properties and assets substantially as an entirety to a trust
organized as such under the laws of any state; provided, that (i) such successor
entity either (a) expressly assumes all of the obligations of the Trust with
respect to the Preferred Securities; or (b) substitutes for the Preferred
Securities other securities having substantially the same terms as the Preferred
Securities (the "Successor Securities") so long as the Successor Securities rank
the same as the Preferred Securities rank in priority with respect to
distributions and payments upon liquidation, redemption and otherwise; (ii) the
Depositor expressly appoints a trustee of such successor entity possessing
substantially the same powers and duties as the Property Trustee as the holder
of the Debentures; (iii) the Successor Securities are listed or traded, or any
Successor Securities shall be listed or traded upon notification of issuance, on
any national securities exchange or other organization on which the Preferred
Securities are then listed, if any; (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the holders of the Preferred
Securities (including any
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Successor Securities) in any material respect; (v) such successor entity has a
purpose substantially identical to that of the Trust; (vi) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, the
Depositor has received an Opinion of Counsel to the effect that (a) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the Holders of the
Preferred Securities (including any Successor Securities) in any material
respect; and (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such successor
entity shall be required to register as an "investment company" under the
Investment Company Act; and (vii) the Depositor owns all of the common
securities of such successor entity and guarantees the obligations of such
successor entity under the Successor Securities at least to the extent provided
by the Guarantee, the Debentures, this Trust Agreement and the Expense
Agreement. For purposes of this Section 9.5, any such consolidation, merger,
sale, conveyance, transfer or other disposition as a result of which (a) the
Depositor is not the surviving Person, and (b) the same Person is not both (i)
the primary obligor in respect of the Debentures and (ii) the Guarantor under
that certain Preferred Securities Guarantee Agreement of even date herewith (the
"Guarantee") between the Depositor and Wachovia Trust Company, National
Association, shall be deemed to constitute a replacement of the Trust by a
successor entity; provided further that, notwithstanding the foregoing, in the
event that upon the consummation of such a consolidation, merger, sale,
conveyance, transfer or other disposition, the parent company (if any) of the
Depositor, or its successor, is a bank holding company or financial holding
company or comparably regulated financial institution, such parent company shall
guarantee the obligations of the Trust (and any successor thereto) under the
Preferred Securities (including any Successor Securities) at least to the extent
provided by the Guarantee, the Debentures, the Trust Agreement and the Expense
Agreement. Notwithstanding the foregoing, the Trust shall not, except with the
consent of holders of 100% in Liquidation Amount of the Preferred Securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to any
other Person or permit any other Person to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, amalgamation, merger or
replacement would cause the Trust or the successor entity to be classified as
other than a grantor trust for United States federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 Limitation of Rights of Securityholders.
The death or incapacity of any Person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such Person or any
Securityholder for such Person, to claim an accounting, take any action or bring
any proceeding in any court for a partition or winding-up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
-51-
10.2 Amendment.
(a) This Trust Agreement may be amended from time to time by the
Trustees and the Depositor, without the consent of any
Securityholders, (i) as provided in Section 8.11 with respect to
acceptance of appointment by a successor Trustee; (ii) to cure
any ambiguity, correct or supplement any provision herein or
therein which may be inconsistent with any other provision herein
or therein, or to make any other provisions with respect to
matters or questions arising under this Trust Agreement, that
shall not be inconsistent with the other provisions of this Trust
Agreement; or (iii) to modify, eliminate or add to any provisions
of this Trust Agreement to such extent as shall be necessary to
ensure that the Trust shall be classified for United States
federal income tax purposes as a grantor trust at all times that
any Trust Securities are outstanding or to ensure that the Trust
shall not be required to register as an "investment company"
under the Investment Company Act; or (iv) to reduce or increase
the Liquidation Amount per Trust Security and simultaneously to
correspondingly increase or decrease the number of Trust
Securities issued and Outstanding solely for the purpose of
maintaining the eligibility of the Preferred Securities for
quotation or listing on any national securities exchange or other
organization on which the Preferred Securities are then quoted or
listed (including, if applicable, the Nasdaq National Market);
provided, however, that in the case of clause (ii), such action
shall not adversely affect in any material respect the interests
of any Securityholder, and provided further, that in the case of
clause (iv) the aggregate Liquidation Amount of the Trust
Securities Outstanding upon completion of any such reduction must
be the same as the aggregate Liquidation Amount of the Trust
Securities Outstanding immediately prior to such reduction or
increase; and any amendments of this Trust Agreement shall become
effective when notice thereof is given to the Securityholders (or
in the case of an amendment pursuant to clause (iv), as of the
date specified in the notice).
(b) Except as provided in Section 6.1(c) or Section 10.2(c) hereof,
any provision of this Trust Agreement may be amended by the
Trustees and the Depositor (i) with the consent of Trust
Securityholders representing not less than a majority (based upon
Liquidation Amounts) of the Trust Securities then Outstanding;
and (ii) upon receipt by the Trustees of an Opinion of Counsel to
the effect that such amendment or the exercise of any power
granted to the Trustees in accordance with such amendment shall
not affect the Trust's status as a grantor trust for United
States federal income tax purposes or the Trust's exemption from
status of an "investment company" under the Investment Company
Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected
Securityholder, this Trust Agreement may not be amended to (i)
change the amount or timing of any Distribution on the Trust
Securities or otherwise adversely affect the amount of any
-52-
Distribution required to be made in respect of the Trust
Securities as of a specified date; or (ii) restrict the right of
a Securityholder to institute suit for the enforcement of any
such payment on or after such date; notwithstanding any other
provision herein, without the unanimous consent of the
Securityholders this paragraph (c) of this Section 10.2 may not
be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this
Trust Agreement which would cause the Trust to fail or cease to
qualify for the exemption from status of an "investment company"
under the Investment Company Act or to fail or cease to be
classified as a grantor trust for United States federal income
tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor, this Trust Agreement may
not be amended in a manner which imposes any additional
obligation on the Depositor.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees shall promptly provide to the
Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement
which affects its own rights, duties or immunities under this
Trust Agreement. The Property Trustee shall be entitled to
receive an Opinion of Counsel and an Officers' Certificate
stating that any amendment to this Trust Agreement has been
effected in compliance with this Trust Agreement.
10.3 Severability.
In case any provision in this Trust Agreement or in the Trust Securities
Certificates shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
10.4 Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES
THEREOF).
10.5 Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day that
is not a Business Day, then such payment need not be made on such date but may
be made on the next succeeding
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day which is a Business Day, except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day (and without any reduction of interest or any other
payment in respect of any such acceleration), in each case with the same force
and effect as though made on the date fixed for such payment, and no
distribution shall accumulate thereon for the period after such date.
10.6 Successors.
This Trust Agreement shall be binding upon and shall inure to the benefit
of any successor to the Depositor, the Trust or the Relevant Trustee(s),
including any successor by operation of law. Except in connection with a
consolidation, merger or sale involving the Depositor that is permitted under
Article IX of the Indenture and pursuant to which the assignee agrees in writing
to perform the Depositor's obligations hereunder, the Depositor shall not assign
its obligations hereunder.
10.7 Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
10.8 Reports, Notices and Demands.
Any report, notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
any Securityholder or the Depositor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a
Preferred Securityholder, to such Preferred Securityholder as such
Securityholder's name and address may appear on the Securities Register; and (b)
in the case of the Common Securityholder or the Depositor, to First Merchants
Corporation, 200 East Jackson Street, Post Office Box 792, Muncie, Indiana
47308, Attention: Larry R. Helms, Esq., Senior Vice President & General Counsel.
Any notice to Preferred Securityholders shall also be given to such owners as
have, within two years preceding the giving of such notice, filed their names
and addresses with the Property Trustee for that purpose. Such notice, demand or
other communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Trust, the Property Trustee or the Administrative Trustees shall be given in
writing addressed (until another address is published by the Trust) as follows:
(a) with respect to the Property Trustee to One Rodney Square, 920 King Street,
Suite 102, Wilmington, Delaware 19801, Attention: Corporate Trust Trustee
Administration, Attention: Corporate Trust Trustee Administration; (b) with
respect to the Delaware Trustee, to One Rodney Square, 920 King Street, Suite
102, Wilmington, Delaware 19801, Attention: Corporate Trust Trustee
Administration; and (c) with respect to the Administrative Trustees, to them at
the address above for notices to the Depositor, marked "Attention:
Administrative Trustees of First Merchants Corporation Trust I." Such notice,
demand or other communication to or upon the Trust or the Property Trustee shall
be deemed to have been
-54-
sufficiently given or made only upon actual receipt of the writing by the Trust
or the Property Trustee.
10.9 Agreement Not to Petition.
Each of the Trustees and the Depositor agree for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code of 1978, as amended) (collectively, "Bankruptcy Laws") or
otherwise join in the commencement of any proceeding against the Trust under any
Bankruptcy Law. In the event the Depositor or any of the Trustees takes action
in violation of this Section 10.9, the Property Trustee agrees, for the benefit
of Securityholders, that at the expense of the Depositor (which expense shall be
paid prior to the filing), it shall file an answer with the bankruptcy court or
otherwise properly contest the filing of such petition by the Depositor or such
Trustee against the Trust or the commencement of such action and raise the
defense that the Depositor or such Trustee has agreed in writing not to take
such action and should be stopped and precluded therefrom. The provisions of
this Section 10.9 shall survive the termination of this Trust Agreement.
10.10 Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust
Agreement and shall, to the extent applicable, be governed by
such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this
Trust Agreement by any of the provisions of the Trust Indenture
Act, such required provision shall control. If any provision of
this Trust Agreement modifies or excludes any provision of the
Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Trust Agreement
as so modified or to be excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as
equity securities representing undivided beneficial interests in
the assets of the Trust.
10.11 Acceptance of Terms of Trust Agreement, Guarantee and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE
OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO
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THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE INDENTURE,
AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH
OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING,
OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH
OTHERS.
10.12 Counterparts.
This Trust Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be an original, and all of which
counterparts together shall constitute one and the same agreement.
10.13 Exchange Act Obligations.
For so long as the Trust Securities shall remain outstanding, Depositor
shall fulfill all reporting and filing obligations under the Securities Exchange
Act of 1934, as amended, as applicable to companies having a class of securities
registered under Section 12(b) or 12(g) thereunder.
[Signatures to follow.]
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FIRST MERCHANTS CORPORATION,
as Depositor
By: /s/ Larry R. Helms
------------------------------------------------
Name: Larry R. Helms, Esq.
Title: Senior Vice President and General Counsel
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION,
as Property Trustee and Delaware Trustee
By: /s/ Edward L. Truitt, Jr.
------------------------------
Name: Edward L. Truitt, Jr.
------------------------
Title: Vice President
-----------------------
/s/ Michael L. Cox
- ----------------------------------
Michael L. Cox,
as Administrative Trustee
/s/ Larry R. Helms
- ----------------------------------
Larry R. Helms, Esq.,
as Administrative Trustee
/s/ Mark K. Hardwick
- ----------------------------------
Mark K. Hardwick,
as Administrative Trustee
-57-
EXHIBIT A
CERTIFICATE OF TRUST
OF
FIRST MERCHANTS CAPITAL TRUST I
This Certificate of Trust is being executed as of December 12, 2001 for the
purposes of organizing a business trust pursuant to the Delaware Business Trust
Act, 12 Del. C. ss.ss. 3801 et seq. (the "Act").
The undersigned hereby certifies as follows:
1. Name. The name of the business trust is "First Merchants Capital Trust I"
(the "Trust").
2. Delaware Trustee. The name and business address of the Delaware trustee of
the Trust meeting the requirements of Section 3807 of the Act are as
follows:
First Union Trust Company, National Association
One Rodney Square
920 King Street
Suite 102
Wilmington, Delaware 19801
Attention: Corporate Trust Trustee Administration
3. Effective. This Certificate of Trust shall be effective immediately upon
filing in the Office of the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned being all of the trustees of the Trust,
have duly executed this Certificate of Trust as of the day and year first above
written.
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION
as Delaware Trustee
By:
--------------------------------
Name:
------------------------
Title:
-----------------------
ADMINISTRATIVE TRUSTEE
--------------------------------
Michael L. Cox
A-1
ADMINISTRATIVE TRUSTEE
--------------------------------
Larry R. Helms, Esq.
ADMINISTRATIVE TRUSTEE
--------------------------------
Mark K. Hardwick
A-2
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT AS DESCRIBED IN THE TRUST AGREEMENT AS DEFINED BELOW
Certificate Number __ Number of Common Securities _____
Certificate Evidencing Common Securities
of
First Merchants Capital Trust I
Common Securities
(liquidation amount $25 per Common Security)
FIRST MERCHANTS CAPITAL TRUST I, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that FIRST
MERCHANTS CORPORATION (the "Holder") is the registered owner of _______________
(__________) common securities of the Trust representing undivided beneficial
interests in the assets of the Trust and designated the Common Securities
(liquidation amount $25 per Common Security) (the "Common Securities"). Except
as provided in Section 5.10 of the Trust Agreement (as defined below), the
Common Securities are not transferable, to the fullest extent permitted below,
and any attempted prohibited transfer hereof shall be void. The designations,
rights, privileges, restrictions, preferences, and other terms and provisions of
the Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement dated as
of April 17, 2002, as the same may be amended from time to time (the "Trust
Agreement"), including the designation of the terms of the Common Securities as
set forth therein. The Trust shall furnish a copy of the Trust Agreement to the
Holder without charge upon written request to the Trust at its principal place
of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this 17th day of April, 2002.
ADMINISTRATIVE TRUSTEE
By:
-----------------------------
Name:
------------------------
B-1
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement") dated as of
April 17, 2002, between FIRST MERCHANTS CORPORATION, an Indiana corporation (the
"Company"), and FIRST MERCHANTS CAPITAL TRUST I, a Delaware business trust (the
"Trust").
RECITALS
WHEREAS, the Trust intends to issue its common securities (the "Common
Securities") to, and receive 8.75% Junior Subordinated Debentures (the
"Debentures") from, the Company and to issue and sell its 8.75% Cumulative Trust
Preferred Securities (the "Preferred Securities") with such powers, preferences
and special rights and restrictions as are set forth in the Amended and Restated
Trust Agreement dated as of April 17, 2002, as the same may be amended from time
to time (the "Trust Agreement");
WHEREAS, the Company shall directly or indirectly own all of the Common
Securities of the Trust and shall issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase the Company hereby agrees shall benefit the
Company and which purchase the Company acknowledges shall be made in reliance
upon the execution and delivery of this Agreement, the Company, including in its
capacity as holder of the Common Securities, and the Trust hereby agree as
follows:
ARTICLE I
1.1 Guarantee by the Company.
Subject to the terms and conditions hereof, the Company, including in its
capacity as holder of the Common Securities, hereby irrevocably and
unconditionally guarantees to each person or entity to whom the Trust is now or
hereafter becomes indebted or liable (the "Beneficiaries") the full payment when
and as due, of any and all Obligations (as hereinafter defined) to such
Beneficiaries. As used herein, "Obligations" means any costs, expenses or
liabilities of the Trust other than obligations of the Trust to pay to holders
of any Preferred Securities or other similar interests in the Trust the amounts
due such holders pursuant to the terms of the Preferred Securities or such other
similar interests, as the case may be. This Agreement is intended to be for the
benefit of, and to be enforceable by, all such Beneficiaries, whether or not
such Beneficiaries have received notice hereof.
1.2 Term of Agreement.
This Agreement shall terminate and be of no further force and effect upon
the later of (a) the date on which full payment has been made of all amounts
payable to all holders of all the Preferred Securities (whether upon redemption,
liquidation, exchange or otherwise); and (b) the date on which there are no
Beneficiaries remaining; provided, however, that this Agreement shall continue
to be
C-1
effective or shall be reinstated, as the case may be, if at any time any holder
of Preferred Securities or any Beneficiary must restore payment of any sums paid
under the Preferred Securities, under any obligation, under the Preferred
Securities Guarantee Agreement dated the date hereof by the Company and Wachovia
Trust Company, National Association as guarantee trustee or under this Agreement
for any reason whatsoever. This Agreement is continuing, irrevocable,
unconditional and absolute.
1.3 Waiver of Notice.
The Company hereby waives notice of acceptance of this Agreement and of any
obligation to which it applies or may apply, and the Company hereby waives
presentment, demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
1.4 No Impairment.
The obligations, covenants, agreements and duties of the Company under this
Agreement shall in no way be affected or impaired by reason of the happening
from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other
obligation under, arising out of, or in connection with, the
Obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Beneficiaries with
respect to the Obligations or any action on the part of the Trust
granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment
for the benefit of creditors, reorganization, arrangement
composition or readjustment of debt of, or other similar
proceedings affecting, the Trust or any of the assets of the
Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, the Company with respect to the happening of any of the
foregoing.
1.5 Enforcement.
A Beneficiary may enforce this Agreement directly against the Company, and
the Company waives any right or remedy to require that any action be brought
against the Trust or any other person or entity before proceeding against the
Company.
C-2
ARTICLE II
2.1 Binding Effect.
All guarantees and agreements contained in this Agreement shall bind the
successors, assigns, receivers, trustees and representatives of the Company and
shall inure to the benefit of the Beneficiaries.
2.2 Amendment.
So long as there remains any Beneficiary or any Preferred Securities of any
series are outstanding, this Agreement shall not be modified or amended in any
manner adverse to such Beneficiary or to any of the holders of the Preferred
Securities.
2.3 Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same by facsimile
transmission (confirmed by mail), telex, or by registered or certified mail,
addressed as follows (and if so given, shall be deemed given when mailed or upon
receipt of an answer back, if sent by facsimile):
If to the Company: First Merchants Corporation
200 East Jackson Street
Post Office Box 792
Muncie, Indiana 47308
Fax: (765) 741-7283
Attention: Larry R. Helms, Esq.,
Senior Vice President & General Counsel
If to the Trust: Wachovia Trust Company, National Association
One Rodney Square
920 King Street, Suite 102
Wilmington, DE 19801
Fax: (302) 888-7544
Attention: Corporate Trust Trustee Administration
2.4 Governing Law.
This agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of Delaware (without regard to conflict of
laws principles).
THIS AGREEMENT is executed as of the day and year first above written.
FIRST MERCHANTS CORPORATION
By:
--------------------------------
Name:
--------------------------
Title:
-------------------------
C-3
FIRST MERCHANTS CAPITAL TRUST I
By: ______________________________________, as Administrative Trustee
Name:_________________________________
C-4
EXHIBIT D
Certificate Number _____ Number of Preferred Securities_____
Certificate Evidencing Preferred Securities
of
First Merchants Capital Trust I
8.75% Cumulative Trust Preferred Securities
(Liquidation Amount $25 per Preferred Security)
CUSIP No. 32082A 200
First Merchants Capital Trust I, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that
[________________] (the "Holder") is the registered owner of [_____] preferred
securities of the Trust representing undivided beneficial interests in the
assets of the Trust and designated the 8.75% Cumulative Trust Preferred
Securities (liquidation amount $25 per Preferred Security) (the "Preferred
Securities"). The Preferred Securities are transferable on the books and records
of the Trust, in person or by a duly authorized attorney, upon surrender of this
Certificate duly endorsed and in proper form for transfer as provided in Section
5.4 of the Trust Agreement (as defined herein). The designations, rights,
privileges, restrictions, preferences, and other terms and provisions of the
Preferred Securities are set forth in, and this Certificate and the Preferred
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement as of
April 17, 2002, as the same may be amended from time to time (the "Trust
Agreement"), including the designation of the terms of Preferred Securities as
set forth therein. The Holder is entitled to the benefits of the Preferred
Securities Guarantee Agreement entered into by First Merchants Corporation, an
Indiana corporation, and Wachovia Trust Company, National Association, as
guarantee trustee, dated as of April 17, 2002, as the same may be amended from
time to time (the "Guarantee"), to the extent provided therein. The Trust shall
furnish a copy of the Trust Agreement and the Guarantee to the Holder without
charge upon written request to the Trust at its principal place of business or
registered office.
Upon receipt of this Certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Unless the Certificate of Authentication has been manually executed by the
Authentication Agent, this Certificate is not valid or effective.
D-1
IN WITNESS WHEREOF, the Administrative Trustees of the Trust have executed
this Certificate this [___] day of [__________________].
FIRST MERCHANTS CAPITAL TRUST I
By: ______________________________________________, as Administrative Trustee
Name:________________________________________
By: ______________________________________________, as Administrative Trustee
Name:________________________________________
By: ______________________________________________, as Administrative Trustee
Name:________________________________________
D-2
LEGEND
FOR CERTIFICATES EVIDENCING
GLOBAL PREFERRED SECURITIES ONLY:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to
First Merchants Capital Trust I or its agent for registration of
transfer, exchange, or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch
as the registered owner hereof, Cede & Co., has an interest herein.
D-3
[FORM OF REVERSE OF CERTIFICATE]
The Trust will furnish without charge to any registered owner of Preferred
Securities who so requests, a copy of the Trust Agreement and the Guarantee. Any
such request should be in writing and addressed to First Merchants Capital Trust
I, c/o Wachovia Trust Company, National Association, One Rodney Square, 920 King
Street, Suite 102, Wilmington, Delaware 19801, Attention: Corporate Trust
Trustee Administration, or to the Registrar named on the face of this
Certificate.
The following abbreviations, when used in the inscription on the face of
this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM-- as tenants in common UNIF GIFT MIN ACT-- under Uniform
TEN ENT-- as tenants by the entireties Gift to Minors
JT TEN-- as joint tenants with right of Act and not as
survival tenants
Additional abbreviations may also be used though not in the above
list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
(Please insert social security or other identifying number of assignee)
(insert address and zip code of assignee)
the within Certificate and all rights and interests represented by the Preferred
Securities evidenced thereby, and hereby irrevocably constitutes and appoints
_______________________________________________________________________ attorney
to transfer the said Preferred Securities on the books of the within-named Trust
with full power of substitution in the premises.
Dated: _____________________ Signature: ________________________________________
Note: The signature(s) to this
assignment must correspond with the
name(s) as written upon the face of this
Certificate in every particular, without
alteration or enlargement, or any change
whatever.
Signature(s) Guaranteed:
________________________________________
NOTICE: Signature(s) must be guaranteed
by an "eligible guarantor institution"
that is a member or participant in a
"signature guarantee program" (i.e., the
Securities Transfer Agents Medallion
Program, the Stock Exchange Medallion
Program or the New York Stock Exchange,
Inc. Medallion Signature Program).
D-4
EXHIBIT E
FORM OF PREFERRED SECURITIES CERTIFICATE AUTHENTICATION
This is one of the 8.75% Cumulative Trust Preferred Securities referred to
in the within-mentioned Amended and Restated Trust Agreement.
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION,
as Authentication Agent and Registrar
By:_____________________________________
Name: _______________________________
Title:_______________________________
E-1
EXHIBIT 4.3
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement") dated as of
April 17, 2002, between FIRST MERCHANTS CORPORATION, an Indiana corporation (the
"Company"), and FIRST MERCHANTS CAPITAL TRUST I, a Delaware business trust (the
"Trust").
RECITALS
WHEREAS, the Trust intends to issue its common securities (the "Common
Securities") to, and receive 8.75% Junior Subordinated Debentures (the
"Debentures") from, the Company and to issue and sell its 8.75% Cumulative Trust
Preferred Securities (the "Preferred Securities") with such powers, preferences
and special rights and restrictions as are set forth in the Amended and Restated
Trust Agreement dated as of April 17, 2002, as the same may be amended from time
to time (the "Trust Agreement");
WHEREAS, the Company shall directly or indirectly own all of the Common
Securities of the Trust and shall issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase the Company hereby agrees shall benefit the
Company and which purchase the Company acknowledges shall be made in reliance
upon the execution and delivery of this Agreement, the Company, including in its
capacity as holder of the Common Securities, and the Trust hereby agree as
follows:
ARTICLE I
1.1 Guarantee by the Company.
Subject to the terms and conditions hereof, the Company, including in its
capacity as holder of the Common Securities, hereby irrevocably and
unconditionally guarantees to each person or entity to whom the Trust is now or
hereafter becomes indebted or liable (the "Beneficiaries") the full payment when
and as due, of any and all Obligations (as hereinafter defined) to such
Beneficiaries. As used herein, "Obligations" means any costs, expenses or
liabilities of the Trust other than obligations of the Trust to pay to holders
of any Preferred Securities or other similar interests in the Trust the amounts
due such holders pursuant to the terms of the Preferred Securities or such other
similar interests, as the case may be. This Agreement is intended to be for the
benefit of, and to be enforceable by, all such Beneficiaries, whether or not
such Beneficiaries have received notice hereof.
1.2 Term of Agreement.
This Agreement shall terminate and be of no further force and effect upon
the later of (a) the date on which full payment has been made of all amounts
payable to all holders of all the Preferred Securities (whether upon redemption,
liquidation, exchange or otherwise); and (b) the date on which there are no
Beneficiaries remaining; provided, however, that this Agreement shall continue
to be
effective or shall be reinstated, as the case may be, if at any time any holder
of Preferred Securities or any Beneficiary must restore payment of any sums paid
under the Preferred Securities, under any obligation, under the Preferred
Securities Guarantee Agreement dated the date hereof by the Company and Wachovia
Trust Company, National Association as guarantee trustee or under this Agreement
for any reason whatsoever. This Agreement is continuing, irrevocable,
unconditional and absolute.
1.3 Waiver of Notice.
The Company hereby waives notice of acceptance of this Agreement and of any
obligation to which it applies or may apply, and the Company hereby waives
presentment, demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
1.4 No Impairment.
The obligations, covenants, agreements and duties of the Company under this
Agreement shall in no way be affected or impaired by reason of the happening
from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other obligation
under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Trust granting indulgence or
extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement composition or
readjustment of debt of, or other similar proceedings affecting, the Trust
or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, the Company with respect to the happening of any of the
foregoing.
1.5 Enforcement.
A Beneficiary may enforce this Agreement directly against the Company, and
the Company waives any right or remedy to require that any action be brought
against the Trust or any other person or entity before proceeding against the
Company.
2
ARTICLE II
2.1 Binding Effect.
All guarantees and agreements contained in this Agreement shall bind the
successors, assigns, receivers, trustees and representatives of the Company and
shall inure to the benefit of the Beneficiaries.
2.2 Amendment.
So long as there remains any Beneficiary or any Preferred Securities of any
series are outstanding, this Agreement shall not be modified or amended in any
manner adverse to such Beneficiary or to any of the holders of the Preferred
Securities.
2.3 Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same by facsimile
transmission (confirmed by mail), telex, or by registered or certified mail,
addressed as follows (and if so given, shall be deemed given when mailed or upon
receipt of an answer back, if sent by facsimile):
If to the Company: First Merchants Corporation
200 East Jackson Street
Post Office Box 792
Muncie, Indiana 47308
Fax: (765) 741-7283
Attention: Larry R. Helms, Esq.,
Senior Vice President & General Counsel
If to the Trust: Wachovia Trust Company, National Association
One Rodney Square
920 King Street, Suite 102
Wilmington, DE 19801
Fax: (302) 888-7544
Attention: Corporate Trust Trustee Administration
2.4 Governing Law.
This agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of Delaware (without regard to conflict of
laws principles).
[Signatures on next page.]
3
THIS AGREEMENT is executed as of the day and year first above written.
FIRST MERCHANTS CORPORATION
By: /s/ Larry R. Helms
------------------------------------------------
Name: Larry R. Helms, Esq.
Title: Senior Vice President and General Counsel
FIRST MERCHANTS CAPITAL TRUST I
By: /s/ Larry R. Helms , as Administrative Trustee
------------------------------------------------
Name: Larry R. Helms, Esq.
4
EXHIBIT 4.4
Certificate Number: P-1 Number of Preferred Securities: 1,850,000
Certificate Evidencing Preferred Securities
of
First Merchants Capital Trust I
8.75% Cumulative Trust Preferred Securities
(Liquidation Amount $25 per Preferred Security)
CUSIP No. 32082A 200
First Merchants Capital Trust I, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that CEDE &
CO., (the "Holder") is the registered owner of 1,850,000 preferred securities of
the Trust representing undivided beneficial interests in the assets of the Trust
and designated the 8.75% Cumulative Trust Preferred Securities (liquidation
amount $25 per Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this Certificate duly endorsed
and in proper form for transfer as provided in Section 5.4 of the Trust
Agreement (as defined herein). The designations, rights, privileges,
restrictions, preferences, and other terms and provisions of the Preferred
Securities are set forth in, and this Certificate and the Preferred Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement as of April 17,
2002, as the same may be amended from time to time (the "Trust Agreement"),
including the designation of the terms of Preferred Securities as set forth
therein. The Holder is entitled to the benefits of the Preferred Securities
Guarantee Agreement entered into by First Merchants Corporation, an Indiana
corporation, and Wachovia Trust Company, National Association, as guarantee
trustee, dated as of April 17, 2002, as the same may be amended from time to
time (the "Guarantee"), to the extent provided therein. The Trust shall furnish
a copy of the Trust Agreement and the Guarantee to the Holder without charge
upon written request to the Trust at its principal place of business or
registered office.
Upon receipt of this Certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Unless the Certificate of Authentication has been manually executed by the
Authentication Agent, this Certificate is not valid or effective.
IN WITNESS WHEREOF, the Administrative Trustees of the Trust have executed
this Certificate this 17th day of April 2002.
FIRST MERCHANTS CAPITAL TRUST I
By: /s/ Michael L. Cox , as Administrative Trustee
----------------------------------------------
Name: Michael L. Cox
----------------------------------------
By: /s/ Larry R. Helms , as Administrative Trustee
----------------------------------------------
Name: Larry R. Helms
----------------------------------------
By: /s/ Mark K. Hardwick , as Administrative Trustee
----------------------------------------------
Name: Mark K. Hardwick
----------------------------------------
2
LEGEND
FOR CERTIFICATES EVIDENCING
GLOBAL PREFERRED SECURITIES ONLY:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to
First Merchants Capital Trust I or its agent for registration of
transfer, exchange, or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch
as the registered owner hereof, Cede & Co., has an interest herein.
3
[FORM OF REVERSE OF CERTIFICATE]
The Trust will furnish without charge to any registered owner of Preferred
Securities who so requests, a copy of the Trust Agreement and the Guarantee. Any
such request should be in writing and addressed to First Merchants Capital Trust
I, c/o Wachovia Trust Company, National Association, One Rodney Square, 920 King
Street, Suite 102, Wilmington, Delaware 19801, Attention: Corporate Trust
Trustee Administration, or to the Registrar named on the face of this
Certificate.
The following abbreviations, when used in the inscription on the face of
this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM-- as tenants in common UNIF GIFT MIN ACT-- under Uniform
TEN ENT-- as tenants by the entireties Gift to Minors
JT TEN-- as joint tenants with right of Act and not as
survival tenants
Additional abbreviations may also be used though not in the above
list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
(Please insert social security or other identifying number of assignee)
(insert address and zip code of assignee)
the within Certificate and all rights and interests represented by the Preferred
Securities evidenced thereby, and hereby irrevocably constitutes and appoints
________________________________________________________________________attorney
to transfer the said Preferred Securities on the books of the within-named Trust
with full power of substitution in the premises.
Dated: ___________________ Signature: ________________________________________
Note: The signature(s) to this
assignment must correspond with the
name(s) as written upon the face of this
Certificate in every particular, without
alteration or enlargement, or any change
whatever.
Signature(s) Guaranteed:
________________________________________
NOTICE: Signature(s) must be guaranteed
by an "eligible guarantor institution"
that is a member or participant in a
"signature guarantee program" (i.e., the
Securities Transfer Agents Medallion
Program, the Stock Exchange Medallion
Program or the New York Stock Exchange,
Inc. Medallion Signature Program).
4
PREFERRED SECURITIES CERTIFICATE AUTHENTICATION
This is one of the 8.75% Cumulative Trust Preferred Securities referred to
in the within-mentioned Amended and Restated Trust Agreement.
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION,
as Authentication Agent and Registrar
By: /s/ Edward L. Truitt, Jr.
-----------------------------------
Name: Edward L. Truitt, Jr.
-----------------------------
Title: Vice President
----------------------------
EXHIBIT 4.5
PREFERRED SECURITIES GUARANTEE AGREEMENT
by and between
FIRST MERCHANTS CORPORATION
and
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION
(formerly First Union Trust Company, National Association)
Dated as of April 17, 2002
TABLE OF CONTENTS
Page No.
ARTICLE I DEFINITIONS AND INTERPRETATION.....................................3
1.1 Definitions and Interpretation.................................3
ARTICLE II TRUST INDENTURE ACT...............................................7
2.1 Trust Indenture Act; Application...............................7
2.2 Lists of Holders of Securities.................................7
2.3 Reports by the Guarantee Trustee...............................7
2.4 Periodic Reports to Guarantee Trustee..........................7
2.5 Evidence of Compliance with Conditions Precedent...............8
2.6 Events of Default; Waiver......................................8
2.7 Event of Default; Notice.......................................8
ARTICLE III POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE...................9
3.1 Powers and Duties of the Guarantee Trustee.....................9
3.2 Certain Rights of Guarantee Trustee...........................10
3.3 Not Responsible for Recitals or Issuance of Guarantee.........12
ARTICLE IV GUARANTEE TRUSTEE................................................13
4.1 Guarantee Trustee; Eligibility................................13
4.2 Appointment, Removal and Resignation of Guarantee Trustee.....13
ARTICLE V GUARANTEE.........................................................14
5.1 Guarantee.....................................................14
5.2 Waiver of Notice and Demand...................................14
5.3 Obligations not Affected......................................15
5.4 Rights of Holders.............................................16
5.5 Guarantee of Payment..........................................16
5.6 Subrogation...................................................16
5.7 Independent Obligations.......................................16
ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION........................17
6.1 Limitation of Transactions....................................17
6.2 Ranking.......................................................17
ARTICLE VII TERMINATION.....................................................18
7.1 Termination...................................................18
ARTICLE VIII INDEMNIFICATION................................................18
8.1 Exculpation...................................................18
8.2 Indemnification...............................................19
ARTICLE IX MISCELLANEOUS....................................................19
9.1 Successors and Assigns........................................19
9.2 Amendments....................................................19
9.3 Notices.......................................................19
9.4 Benefit.......................................................20
9.5 Governing Law.................................................20
-i-
CROSS REFERENCE TABLE
Section of Trust Section of
Indenture Act of Guarantee
1939, as amended Agreement
310(a) 4.1(a)
310(b) 4.1(c), 2.8
310(c) Not Applicable
311(a) 2.2(b)
311(b) 2.2(b)
311(c) Not Applicable
312(a) 2.2(a)
312(b) 2.2(b)
313 2.3
314(a) 2.4
314(b) Not Applicable
314(c) 2.5
314(d) Not Applicable
314(e) 1.1, 2.5, 3.2
314(f) 2.1, 3.2
315(a) 3.1(d)
315(b) 2.7
315(c) 3.1
315(d) 3.1(d)
316(a) 1.1, 2.6, 5.4
316(b) 5.3
317(a) 3.1
317(b) Not Applicable
318(a) 2.1(a)
318(b) 2.1
318(c) 2.1(b)
Note: This Cross-Reference Table does not constitute part of this
Agreement and shall not affect the interpretation of any of its terms
or provisions.
-ii-
PREFERRED SECURITIES GUARANTEE AGREEMENT
This PREFERRED SECURITIES GUARANTEE AGREEMENT (this "Preferred Securities
Guarantee"), dated as of April 17, 2002, is executed and delivered by FIRST
MERCHANTS CORPORATION, an Indiana corporation (the "Guarantor"), and WACHOVIA
TRUST COMPANY, NATIONAL ASSOCIATION (formerly First Union Trust Company,
National Association) (the "Guarantee Trustee"), for the benefit of the Holders
(as defined herein) from time to time of the Preferred Securities (as defined
herein) of First Merchants Capital Trust I, a Delaware statutory business trust
(the "Trust").
RECITALS
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the "Trust
Agreement"), dated as of April 17, 2002, among the trustees of the Trust named
therein, the Guarantor, as Depositor, and the holders from time to time of
undivided beneficial interests in the assets of the Trust, the Trust is issuing
on the date hereof up to 2,127,500 preferred securities, having an aggregate
Liquidation Amount of up to $53,187,500 designated the 8.75% Cumulative Trust
Preferred Securities;
WHEREAS, as incentive for the Holders to purchase the Preferred Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth in this Preferred Securities Guarantee, to pay to the Holders of the
Preferred Securities the Guarantee Payments (as defined herein) and to make
certain other payments on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Preferred Securities
Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1 Definitions and Interpretation.
In this Preferred Securities Guarantee, unless the context otherwise
requires:
(a) capitalized terms used in this Preferred Securities Guarantee but
not defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) terms defined in the Trust Agreement as at the date of execution
of this Preferred Securities Guarantee have the same meaning when
used in this Preferred Securities Guarantee, unless otherwise
defined in this Preferred Securities Guarantee;
(c) a term defined anywhere in this Preferred Securities Guarantee
has the same meaning throughout;
(d) all references to "the Preferred Securities Guarantee" or "this
Preferred Securities Guarantee" are to this Preferred Securities
Guarantee as modified, supplemented or amended from time to time;
(e) all references in this Preferred Securities Guarantee to Articles
and Sections are to Articles and Sections of this Preferred
Securities Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning
when used in this Preferred Securities Guarantee, unless
otherwise defined in this Preferred Securities Guarantee or
unless the context otherwise requires; and
(g) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" means any day other than a Saturday, Sunday, a day on which
federal or state banking institutions in New York, New York are authorized or
required by law, executive order or regulation to close or a day on which the
Corporate Trust Office of the Guarantee Trustee is closed for business.
"Corporate Trust Office" means the office of the Guarantee Trustee at which
the corporate trust business of the Guarantee Trustee shall, at any particular
time, be principally administered, which office at the date of execution of this
Agreement is located at One Rodney Square, 920 King Street, Suite 102,
Wilmington, Delaware 19801, Attention: Corporate Trust Trustee Administration..
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Debentures" means the 8.75% Junior Subordinated Debentures due June 30,
2032, the Debenture Issuer held by the Property Trustee of the Trust.
"Debenture Issuer" means First Merchants Corporation, issuer of the
Debentures under the Indenture.
"Event of Default" means a default by the Guarantor on any of its payments
or other obligations under this Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Preferred Securities, to the extent not paid or
made by the Trust: (i) any accrued and unpaid Distributions that are required to
be paid on such Preferred Securities, to the extent the Trust shall have funds
available therefor, (ii) the redemption price, including all accrued and unpaid
-4-
Distributions to the date of redemption (the "Redemption Price"), to the extent
the Trust has funds available therefor, with respect to any Preferred Securities
called for redemption by the Trust, and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Trust (other than in connection
with the distribution of Debentures to the Holders in exchange for Preferred
Securities as provided in the Trust Agreement), the lesser of (a) the aggregate
of the Liquidation Amount and all accrued and unpaid Distributions on the
Preferred Securities to the date of payment, to the extent the Trust shall have
funds available therefor (the "Liquidation Distribution"), and (b) the amount of
assets of the Trust remaining available for distribution to Holders in
liquidation of the Trust.
"Guarantee Trustee" means Wachovia Trust Company, National Association,
until a Successor Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Preferred Securities Guarantee and
thereafter means each such Successor Guarantee Trustee.
"Guarantor" means First Merchants Corporation, an Indiana corporation.
"Holder" shall mean any holder, as registered on the books and records of
the Trust, of any Preferred Securities; provided, however, that, in determining
whether the holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor, the Guarantee Trustee or any of their respective
Affiliates.
"Indemnified Person" means the Guarantee Trustee, any Affiliate of the
Guarantee Trustee, or any officers, directors, shareholders, members, partners,
employees, representatives, nominees, custodians or agents of the Guarantee
Trustee.
"Indenture" means the Indenture dated as of April 17, 2002, among the
Debenture Issuer and Wachovia Trust Company, National Association, as trustee,
and any indenture supplemental thereto pursuant to which the Debentures are to
be issued to the Property Trustee of the Trust, including, without limitation,
that certain First Supplemental Indenture dated as of April 17, 2002.
"Liquidation Amount" means the stated value of $25 per Preferred Security.
"Liquidation Distribution" has the meaning provided therefor in the
definition of Guarantee Payments.
"Majority in Liquidation Amount of the Preferred Securities" means the
holders of more than 50% of the Liquidation Amount of all of the Preferred
Securities.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two authorized officers of such Person, at least one of whom shall be
the principal executive officer, principal financial officer, principal
accounting officer, treasurer or any vice president of such Person. Any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Preferred Securities Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definition relating
thereto;
-5-
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the
Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to
enable such officer to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"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.
"Preferred Securities" means the 8.75% Cumulative Trust Preferred
Securities representing undivided beneficial interests in the assets of the
Trust which rank pari passu with Common Securities issued by the Trust;
provided, however, that upon the occurrence of an Event of Default, the rights
of holders of Common Securities to payment in respect of distributions and
payments upon liquidation, redemption and otherwise are subordinated to the
rights of holders of Preferred Securities.
"Redemption Price" has the meaning provided therefor in the definition of
Guarantee Payments.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
officer within the Corporate Trust Office of the Guarantee Trustee with direct
responsibility for the administration of this Preferred Securities Guarantee,
including any vice-president, any assistant vice-president, any assistant
secretary or other officer or assistant officer of the Guarantee 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.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
-6-
ARTICLE II
TRUST INDENTURE ACT
2.1 Trust Indenture Act; Application.
(a) This Preferred Securities Guarantee is subject to the provisions
of the Trust Indenture Act that are required to be part of this Preferred
Securities Guarantee and shall, to the extent applicable, be governed by
such provisions.
(b) If and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed
by Section 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.
2.2 Lists of Holders of Securities.
(a) In the event the Guarantee Trustee is not also acting in the
capacity of the Property Trustee under the Trust Agreement, the Guarantor
shall cause to be provided to the Guarantee Trustee a list, in such form as
the Guarantee Trustee may reasonably require, of the names and addresses of
the Holders of the Preferred Securities ("List of Holders") as of the date
(i) within one Business Day after March 15, June 15, September 15 and
December 15, and (ii) at any other time within 30 days of receipt by the
Guarantor of a written request for a List of Holders as of a date no more
than 15 days before such List of Holders is given to the Guarantee Trustee;
provided, that the Guarantor shall not be obligated to provide such List of
Holders at any time the List of Holders does not differ from the most
recent List of Holders caused to have been given to the Guarantee Trustee
by the Guarantor. The Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under
Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
2.3 Reports by the Guarantee Trustee.
On or before July 31 of each year, commencing July 31, 2002 the Guarantee
Trustee shall provide to the Holders of the Preferred Securities such reports as
are required by Section 313 of the Trust Indenture Act, if any, in the form and
in the manner provided by Section 313 of the Trust Indenture Act. The Guarantee
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
2.4 Periodic Reports to Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee such documents,
reports and information as required by Section 314 (if any) and the compliance
certificate required by Section 314 of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
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2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Preferred
Securities Guarantee that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
2.6 Events of Default; Waiver.
The Holders of a Majority in liquidation amount of Preferred Securities
may, by vote, on behalf of the Holders of all of the Preferred Securities, waive
any past Event of Default and its consequences. Upon such waiver, any such Event
of Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Preferred
Securities Guarantee, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
2.7 Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the occurrence
of an Event of Default, transmit by mail, first class postage prepaid, to
the Holders of the Preferred Securities, notices of all Events of Default
actually known to a Responsible Officer of the Guarantee Trustee, unless
such defaults have been cured before the giving of such notice; provided,
that, except in the case of a default by Guarantor on any of its payment
obligations, the Guarantee Trustee shall be protected in withholding such
notice if and so long as a Responsible Officer of the Guarantee Trustee in
good faith determines that the withholding of such notice is in the
interests of the Holders of the Preferred Securities.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written
notice, or of which a Responsible Officer of the Guarantee Trustee charged
with the administration of the Trust Agreement shall have obtained actual
knowledge.
2.8 Conflicting Interests.
The Trust Agreement shall be deemed to be specifically described in this
Preferred Securities Guarantee for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
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ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
3.1 Powers and Duties of the Guarantee Trustee.
(a) This Preferred Securities Guarantee shall be held by the Guarantee
Trustee for the benefit of the Holders of the Preferred Securities, and the
Guarantee Trustee shall not transfer this Preferred Securities Guarantee to
any Person except a Holder of Preferred Securities exercising his or her
rights pursuant to Section 5.4(b) or to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee Trustee, and
such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer of
the Guarantee Trustee has occurred and is continuing, the Guarantee Trustee
shall enforce this Preferred Securities Guarantee for the benefit of the
Holders of the Preferred Securities.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically
set forth in this Preferred Securities Guarantee, and no implied covenants
shall be read into this Preferred Securities Guarantee against the
Guarantee Trustee. In case an Event of Default has occurred (that has not
been cured or waived pursuant to Section 2.6) and is actually known to a
Responsible Officer of the Guarantee Trustee, the Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Preferred
Securities Guarantee, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee Trustee
shall be determined solely by the express provisions of
this Preferred Securities Guarantee, and the Guarantee
Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set
forth in this Preferred Securities Guarantee, and no
implied covenants or
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obligations shall be read into this Preferred
Securities Guarantee against the Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may
conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the
Guarantee Trustee and conforming to the requirements of
this Preferred Securities Guarantee; but in the case of
any such certificates or opinions that by any provision
hereof are specifically required to be furnished to the
Guarantee Trustee, the Guarantee Trustee shall be under
a duty to examine the same to determine whether or not
they conform to the requirements of this Preferred
Securities Guarantee;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was
negligent in ascertaining the pertinent facts upon which such judgment
was made;
(iii) the Guarantee 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 Preferred Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Preferred Securities
Guarantee; and
(iv) no provision of this Preferred Securities Guarantee shall
require the Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any
of its duties or in the exercise of any of its rights or powers, if
the Guarantee Trustee shall have reasonable grounds for believing that
the repayment of such funds or liability is not reasonably assured to
it under the terms of this Preferred Securities Guarantee or
indemnity, reasonably satisfactory to the Guarantee Trustee, against
such risk or liability is not reasonably assured to it.
3.2 Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) the Guarantee Trustee may conclusively rely, and shall be
fully protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
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believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties;
(ii) Any direction or act of the Guarantor contemplated by this
Preferred Securities Guarantee shall be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever, in the administration of this Preferred
Securities Guarantee, the Guarantee Trustee shall deem it desirable
that a matter be proved or established before taking, suffering or
omitting any action hereunder, the Guarantee Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad
faith on its part, request and conclusively rely upon an Officers'
Certificate which, upon receipt of such request, shall be promptly
delivered by the Guarantor;
(iv) the Guarantee Trustee shall have no duty to see to any
recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof);
(v) the Guarantee Trustee may consult with counsel, and the
written advice or opinion of such counsel with respect to legal
matters shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in
good faith and in accordance with such advice or opinion. Such counsel
may be counsel to the Guarantor or any of its Affiliates and may
include any of its employees. The Guarantee Trustee shall have the
right at any time to seek instructions concerning the administration
of this Preferred Securities Guarantee from any court of competent
jurisdiction;
(vi) the Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Preferred
Securities Guarantee at the request or direction of any Holder, unless
such Holder shall have provided to the Guarantee Trustee such security
and indemnity, reasonably satisfactory to the Guarantee Trustee,
against the costs, expenses (including attorneys' fees and expenses
and the expenses of the Guarantee Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it in complying
with such request or direction, including such reasonable advances as
may be requested by the Guarantee Trustee; provided that, nothing
contained in this Section 3.2(a)(vi) shall be taken to relieve the
Guarantee Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by this
Preferred Securities Guarantee;
(vii) the Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee
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Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(viii) the Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents, nominees, custodians or attorneys, and the
Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due
care by it hereunder;
(ix) no third party shall be required to inquire as to the
authority of the Guarantee Trustee to so act or as to its compliance
with any of the terms and provisions of this Preferred Securities
Guarantee, both of which shall be conclusively evidenced by the
Guarantee Trustee's or its agent's taking such action; and
(x) whenever in the administration of this Preferred Securities
Guarantee the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking
any other action hereunder, the Guarantee Trustee (i) may request
instructions from the Holders of a Majority in Liquidation Amount of
the Preferred Securities, (ii) may refrain from enforcing such remedy
or right or taking such other action until such instructions are
received, and (iii) shall be protected in conclusively relying on or
acting in accordance with such instructions.
(b) No provision of this Preferred Securities Guarantee shall be
deemed to impose any duty or obligation on the Guarantee 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 Guarantee 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 Guarantee Trustee shall be construed to be a
duty.
3.3 Not Responsible for Recitals or Issuance of Guarantee.
The Recitals contained in this Guarantee shall be taken as the statements
of the Guarantor, and the Guarantee Trustee does not assume any responsibility
for their correctness. The Guarantee Trustee makes no representation as to the
validity or sufficiency of this Preferred Securities Guarantee.
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ARTICLE IV
GUARANTEE TRUSTEE
4.1 Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws
of the United States of America or any state or territory thereof or
of the District of Columbia, or a corporation or Person permitted by
the Securities and Exchange Commission to act as an institutional
trustee under the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000, and subject to supervision or examination by
federal, state, territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining
authority referred to above, then, for the purposes of this Section
4.1(a)(ii), the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to
so act under Section 4.1(a), the Guarantee Trustee shall immediately resign
in the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act,
the Guarantee Trustee and Guarantor shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
4.2 Appointment, Removal and Resignation of Guarantee Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed
or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed in accordance with
Section 4.2(a) until a Successor Guarantee Trustee has been appointed and
has accepted such appointment by written instrument executed by such
Successor Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold office until
a Successor Guarantee Trustee shall have been appointed or until its
removal or resignation. The Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in
writing executed by the Guarantee Trustee and delivered to the Guarantor,
which resignation shall not take effect until a Successor
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Guarantee Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Guarantee Trustee and
delivered to the Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Guarantee Trustee may petition any court of competent jurisdiction for
appointment of a Successor Guarantee Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper, appoint a
Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or omissions to
act of any Successor Guarantee Trustee.
(f) Upon termination of this Preferred Securities Guarantee or removal
or resignation of the Guarantee Trustee pursuant to this Section 4.2, the
Guarantor shall pay to the Guarantee Trustee all fees and expenses accrued
to the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
5.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (without duplication of amounts theretofore paid
by the Trust), as and when due, regardless of any defense, right of set-off or
counterclaim that the Trust may have or assert. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Trust to pay such
amounts to the Holders.
5.2 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Preferred
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Trust or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
5.3 Obligations not Affected.
The obligations, covenants, agreements and duties of the Guarantor under
this Preferred Securities Guarantee shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:
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(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Trust of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be
performed or observed by the Trust;
(b) the extension of time for the payment by the Trust of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or
any other sums payable under the terms of the Preferred Securities or the
extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Preferred Securities (other than
an extension of time for payment of Distributions, Redemption Price,
Liquidation Distribution or other sum payable that results from the
extension of any interest payment period on the Debentures or any extension
of the maturity date of the Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Preferred
Securities, or any action on the part of the Trust granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Trust
or any of the assets of the Trust;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) any failure or omission to receive any regulatory approval or
consent required in connection with the Preferred Securities (or the common
equity securities issued by the Trust), including the failure to receive
any approval of the Board of Governors of the Federal Reserve System
required for the redemption of the Preferred Securities;
(g) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(h) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the
intent of this Section 5.3 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
consent of, the Guarantor with respect to the happening of any of the foregoing.
5.4 Rights of Holders.
(a) Subject to Section 5.4(b), the Holders of a Majority in
liquidation amount of the Preferred Securities have the right to
direct the time, method and
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place of conducting of any proceeding for any remedy available to
the Guarantee Trustee in respect of this Preferred Securities
Guarantee or exercising any trust or power conferred upon the
Guarantee Trustee under this Preferred Securities Guarantee.
(b) Any Holder of Preferred Securities may institute and prosecute a
legal proceeding directly against the Guarantor to enforce its
rights under this Preferred Securities Guarantee, without first
instituting a legal proceeding against the Trust, the Guarantee
Trustee or any other Person.
5.5 Guarantee of Payment.
This Preferred Securities Guarantee creates a guarantee of payment and not
of collection.
5.6 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders of
Preferred Securities against the Trust in respect of any amounts paid to such
Holders by the Guarantor under this Preferred Securities Guarantee; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any right that
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Preferred Securities
Guarantee, if, at the time of any such payment, any amounts are due and unpaid
under this Preferred Securities Guarantee. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor agrees to hold
such amount in trust for the Holders and to pay over such amount to the Holders.
5.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Trust with respect to the Preferred Securities, and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Preferred Securities Guarantee
notwithstanding the occurrence of any event referred to in subsections (a)
through (h), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
6.1 Limitation of Transactions.
So long as any Preferred Securities remain outstanding, if there shall have
occurred an Event of Default under this Preferred Securities Guarantee, an event
of default under the Trust Agreement or during an Extended Interest Payment
Period (as defined in the Indenture), then (a) the Guarantor shall not declare
or pay, and shall not allow any of its Subsidiaries to declare or pay, any
dividend on, make any distributions with respect to, or redeem, purchase,
acquire or make a liquidation
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payment with respect to, any of its capital stock (other than (A) dividends or
distributions in common stock of the Guarantor or any Subsidiary of the
Guarantor, or any declaration of a non-cash dividend in connection with the
implementation of a shareholder rights plan, or the issuance of stock under any
such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, (B) purchases of common stock of the Guarantor related to the
rights under any benefit plans for its directors, officers or employees, (C) as
a result of a reclassification of its capital stock into another class of its
capital stock, or (D) payments of dividends or distributions to the Guarantor);
(b) the Guarantor shall not make, and shall not allow any of its Subsidiaries to
make, any payment of interest, principal or premium, if any, or repay,
repurchase or redeem any debt securities issued by the Guarantor which rank pari
passu with or junior to the Debentures of such series or make any guarantee
payments with respect to any guarantee by the Guarantor of the debt securities
of any subsidiary of the Guarantor if such guarantee ranks pari passu with or
junior in interest to the Debentures of such series; provided, however, that
notwithstanding the foregoing the Guarantor may make payments pursuant to its
obligations under this Guarantee; and (c) the Guarantor shall not redeem,
purchase or acquire less than all of the outstanding Debentures of such series
or any of the Preferred Securities relating to such Trust.
For purposes of this Section, "Subsidiary" means, with respect to any
Person, (i) any corporation at least a majority of whose outstanding Voting
Stock shall at the time be owned, directly or indirectly, by such Person or by
one or more of its Subsidiaries or by such Person and one or more of its
Subsidiaries; (ii) any general partnership, limited liability company, joint
venture, trust or similar entity, at least a majority of whose outstanding
partnership or similar interests shall at the time be owned by such Person, or
by one or more of its Subsidiaries, or by such Person and one or more of its
Subsidiaries; and (iii) any limited partnership of which such Person or any of
its Subsidiaries is a general partner. For purposes of this Section, "Voting
Stock," as applied to stock of any Person, means shares, interests,
participations or other equivalents in the equity interest (however designated)
in such Person having ordinary voting power for the election of a majority of
the directors (or the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by reason of the
occurrence of a contingency.
6.2 Ranking.
This Preferred Securities Guarantee will constitute an unsecured obligation
of the Guarantor and will rank subordinate and junior in right of payment to all
Senior Debt, Subordinated Debt and Additional Senior Obligations, of the
Guarantor (as defined in the Indenture), to the extent and in the manner set
forth in the Indenture, and the applicable provisions of the Indenture will
apply, in all relevant respects, to the obligations of the Guarantor hereunder.
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ARTICLE VII
TERMINATION
7.1 Termination.
This Preferred Securities Guarantee shall terminate upon (i) full payment
of the Redemption Price of all Preferred Securities, (ii) upon full payment of
the amounts payable in accordance with the Trust Agreement upon liquidation of
the Trust, or (iii) upon distribution of the Debentures to the Holders of the
Preferred Securities. Notwithstanding the foregoing, this Preferred Securities
Guarantee shall continue to be effective or shall be reinstated, as the case may
be, if at any time any Holder of Preferred Securities must restore payment of
any sums paid under the Preferred Securities or under this Preferred Securities
Guarantee.
ARTICLE VIII
INDEMNIFICATION
8.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor 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 in accordance with this
Preferred Securities Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on
such Indemnified Person by this Preferred Securities Guarantee 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, bad
faith 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 Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as
to matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, 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 Preferred
Securities might properly be paid.
8.2 Indemnification.
The Guarantor agrees to indemnify each Indemnified Person for, and to hold
each Indemnified Person harmless against, any loss, liability or expense
incurred without negligence, bad faith or willful misconduct on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
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The obligation to indemnify as set forth in this Section 8.2 shall survive the
termination of this Preferred Securities Guarantee.
ARTICLE IX
MISCELLANEOUS
9.1 Successors and Assigns.
All guarantees and agreements contained in this Preferred Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding.
9.2 Amendments.
Except with respect to any changes that do not materially adversely affect
the rights of Holders (in which case no consent of Holders will be required),
this Preferred Securities Guarantee may only be amended with the prior approval
of the Holders of at least a Majority in Liquidation Amount of the Preferred
Securities. The provisions of Article VI of the Trust Agreement with respect to
meetings of Holders of the Preferred Securities apply to the giving of such
approval.
9.3 Notices.
All notices provided for in this Preferred Securities Guarantee shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by registered or certified mail, as follows:
(a) If given to the Guarantee Trustee, at the Guarantee Trustee's
mailing address set forth below (or such other address as the Guarantee
Trustee may give notice of to the Holders of the Preferred Securities):
Wachovia Trust Company, National Association
One Rodney Square
920 King Street, Suite 102
Wilmington, DE 19801
Fax: (302) 888-7544
Attention: Corporate Trust Trustee Administration
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to
the Holders of the Preferred Securities):
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First Merchants Corporation
200 East Jackson Street
Post Office Box 792
Muncie, Indiana 47308
Fax: (765) 741-7283
Attention: Larry R. Helms, Esq.,
Senior Vice President & General Counsel
(c) If given to any Holder of Preferred Securities, 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.
9.4 Benefit.
This Preferred Securities Guarantee is solely for the benefit of the
Holders of the Preferred Securities and, subject to Section 3.1(a), is not
separately transferable from the Preferred Securities.
9.5 Governing Law.
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF INDIANA.
[Signatures on next page.]
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IN WITNESS WHEREOF, this Preferred Securities Guarantee is executed as of
the day and year first above written.
FIRST MERCHANTS CORPORATION,
as Guarantor
By: /s/ Larry R. Helms
------------------------------------------------
Name: Larry R. Helms, Esq.
Title: Senior Vice President and General Counsel
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION,
as Guarantee Trustee
By: /s/ Edward L. Truitt, Jr.
------------------------------------------------
Name: Edward L. Truitt, Jr.
Title: Vice President
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EXHIBIT 4.6
FIRST MERCHANTS CORPORATION
AND
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION (formerly
known as First Union Trust Company, National Association),
AS INDENTURE TRUSTEE
INDENTURE
JUNIOR SUBORDINATED DEBT SECURITIES, ISSUABLE IN SERIES
Dated as of April 17, 2002
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS........................................................1
1.1 Definitions of Terms...........................................1
ARTICLE II DEBENTURES........................................................8
2.1 Forms Generally................................................8
2.2 Amount Unlimited; Issuable in Series...........................8
2.3 Date and Denomination of Debentures...........................10
2.4 Execution and Authentications.................................12
2.5 Registration of Transfer and Exchange.........................13
2.6 Temporary Debentures..........................................15
2.7 Mutilated, Destroyed, Lost or Stolen Debentures...............15
2.8 Cancellation..................................................16
2.9 Benefit of Indenture..........................................16
2.10 Authenticating Agent..........................................16
2.11 Global Debentures.............................................17
2.12 CUSIP Numbers.................................................18
ARTICLE III PARTICULAR COVENANTS OF THE COMPANY.............................18
3.1 Payment of Principal and Interest.............................18
3.2 Maintenance of Agency.........................................19
3.3 Paying Agents.................................................19
3.4 Appointment to Fill Vacancy in Office of Trustee..............20
3.5 Compliance with Consolidation Provisions......................20
3.6 Limitation on Transactions....................................20
3.7 Covenants as to the Trusts....................................21
3.8 Waiver of Usury, Stay or Extension Laws.......................22
ARTICLE IV DEBENTUREHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE
TRUSTEE ....................................................22
4.1 Company to Furnish Trustee Names and Addresses of
Debentureholders. ..........................................22
4.2 Preservation of Information Communications with
Debentureholders. ..........................................22
4.3 Reports by the Company........................................23
4.4 Reports by the Trustee........................................23
ARTICLE V REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS ON EVENT OF DEFAULT..24
5.1 Events of Default.............................................24
5.2 Collection of Indebtedness and Suits for Enforcement by
Trustee. ...................................................25
5.3 Application of Moneys Collected...............................27
5.4 Limitation on Suits...........................................27
5.5 Rights and Remedies Cumulative; Delay or Omission not Waiver..28
5.6 Control by Debentureholders...................................29
5.7 Undertaking to Pay Costs......................................29
5.8 Direct Action; Right of Set-Off...............................30
ARTICLE VI CONCERNING THE TRUSTEE...........................................30
6.1 Certain Duties and Responsibilities of the Trustee............30
i
6.2 Notice of Defaults............................................31
6.3 Certain Rights of Trustee.....................................32
6.4 Trustee Not Responsible for Recitals, etc.....................33
6.5 May Hold Debentures...........................................33
6.6 Moneys Held in Trust..........................................33
6.7 Compensation and Reimbursement................................33
6.8 Reliance on Officers' Certificate.............................34
6.9 Disqualification: Conflicting Interests......................34
6.10 Corporate Trustee Required; Eligibility.......................34
6.11 Resignation and Removal; Appointment of Successor.............35
6.12 Acceptance of Appointment by Successor........................36
6.13 Merger, Conversion, Consolidation or Succession to Business...37
6.14 Preferential Collection of Claims Against the Company.........37
ARTICLE VII CONCERNING THE DEBENTUREHOLDERS.................................38
7.1 Evidence of Action by Holders.................................38
7.2 Proof of Execution by Debentureholders........................38
7.3 Who May Be Deemed Owners......................................39
7.4 Certain Debentures Owned by Company Disregarded...............39
7.5 Actions Binding on Future Debentureholders....................39
ARTICLE VIII SUPPLEMENTAL INDENTURES........................................40
8.1 Supplemental Indentures Without the Consent of
Debentureholders. ..........................................40
8.2 Supplemental Indentures with Consent of Debentureholders......41
8.3 Effect of Supplemental Indentures.............................41
8.4 Debentures Affected by Supplemental Indentures................42
8.5 Execution of Supplemental Indentures..........................42
ARTICLE IX SUCCESSOR CORPORATION............................................43
9.1 Company May Consolidate, etc..................................43
9.2 Successor Corporation Substituted.............................43
9.3 Evidence of Consolidation, etc. to Trustee....................44
ARTICLE X SATISFACTION AND DISCHARGE........................................44
10.1 Satisfaction and Discharge of Indenture.......................44
10.2 Discharge of Obligations......................................45
10.3 Deposited Moneys to be Held in Trust..........................45
10.4 Payment of Monies Held by Paying Agents.......................45
10.5 Repayment to Company..........................................45
ARTICLE XI IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS..46
11.1 No Recourse...................................................46
ARTICLE XII MISCELLANEOUS PROVISIONS........................................46
12.1 Effect on Successors and Assigns..............................46
12.2 Actions by Successor..........................................46
12.3 Surrender of Company Powers...................................47
12.4 Notices.......................................................47
12.5 Governing Law.................................................47
12.6 Treatment of Debentures as Debt...............................47
12.7 Compliance Certificates and Opinions..........................47
ii
12.8 Payments on Business Days.....................................48
12.9 Conflict with Trust Indenture Act.............................48
12.10 Counterparts..................................................48
12.11 Severability..................................................48
12.12 Assignment....................................................48
12.13 Acknowledgment of Rights......................................49
ARTICLE XIII SUBORDINATION OF DEBENTURES....................................49
13.1 Agreement to Subordinate......................................49
13.2 Default on Senior Debt, Subordinated Debt or
Additional Senior Obligations..............................49
13.3 Liquidation; Dissolution; Bankruptcy..........................50
13.4 Subrogation...................................................51
13.5 Trustee to Effectuate Subordination...........................52
13.6 Notice by the Company.........................................52
13.7 Rights of the Trustee; Holders of Senior Indebtedness.........53
13.8 Subordination May Not be Impaired.............................53
iii
CROSS-REFERENCE TABLE
SECTION OF
TRUST INDENTURE ACT SECTION OF
OF 1939, AS AMENDED INDENTURE
310(a)........................................................6.10
310(b).........................................................6.9
.......................................................6.11
310(c)..............................................Not Applicable
311(a)........................................................6.14
311(b)........................................................6.14
311(c)..............................................Not Applicable
312(a).........................................................4.1
......................................................4.2(a)
312(b)......................................................4.2(c)
312(c)......................................................4.2(c)
313(a)......................................................4.4(a)
313(b)......................................................4.4(b)
313(c)......................................................4.4(a)
.....................................................4.4(b)
313(d)......................................................4.4(c)
314(a)......................................................4.3(a)
314(b)..............................................Not Applicable
314(c)........................................................12.7
314(d)..............................................Not Applicable
314(e)........................................................12.7
314(f)..............................................Not Applicable
315(a)......................................................6.1(a)
........................................................6.3
315(b).........................................................6.2
315(c)......................................................6.1(a)
315(d)......................................................6.1(b)
315(e).........................................................5.7
316(a).........................................................1.1
........................................................5.6
316(b)......................................................5.4(b)
316(c)......................................................7.1(b)
317(a).........................................................5.2
317(b).........................................................3.3
318(a)........................................................12.9
Note: This reconciliation and tie sheet shall not, for any purpose, be
deemed to be a part of the Indenture
iv
INDENTURE
THIS INDENTURE, dated as of April 17, 2002 between FIRST MERCHANTS
CORPORATION, an Indiana corporation (the "Company") and WACHOVIA TRUST COMPANY,
NATIONAL ASSOCIATION (formerly known as First Union Trust Company, National
Association) (the "Trustee");
RECITALS
WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the execution and delivery of this Indenture to provide for the issuance of
securities from time to time to be issued in one or more series (hereinafter
referred to as the "Debentures") up to such principal amount or amounts as may
from time to time be authorized, the form and substance of such Debentures and
the terms, provisions and conditions thereof to be set forth as provided in this
Indenture;
WHEREAS, the Company has requested that the Trustee execute and deliver
this Indenture;
WHEREAS, all requirements necessary to make this Indenture a valid
instrument in accordance with its terms have been performed, and the execution
and delivery of this Indenture have been duly authorized in all respects;
WHEREAS, to provide the terms and conditions upon which the Debentures are
to be authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises, it is mutually covenanted
and agreed as follows for the equal and ratable benefit of the holders from time
to time of the Debentures or a series thereof, as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions of Terms.
The terms defined in this Section 1.1 (except as in this Indenture or in
any indenture supplemental hereto otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings specified in
this Section 1.1 and shall include the plural as well as the singular. All other
terms used in this Indenture that are defined in the Trust Indenture Act, or
that are by reference in the Trust Indenture Act defined in the Securities Act
(except as herein or in any indenture supplemental hereto otherwise expressly
provided or unless the context otherwise requires), shall
have the meanings assigned to such terms in the Trust Indenture Act and in the
Securities Act as in force at the date of the execution of this instrument. All
accounting terms used herein and not expressly defined shall have the meanings
assigned to such terms in accordance with Generally Accepted Accounting
Principles. The words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture and not any Article, Section or other
subdivision headings.
"Additional Senior Obligations" means all indebtedness of the Company
whether incurred on or prior to the date of this Indenture or thereafter
incurred, for claims in respect of derivative products such as interest and
foreign exchange rate contracts, commodity contracts and similar arrangements;
provided, however, that Additional Senior Obligations does not include claims in
respect of Senior Debt or Subordinated Debt or obligations which, by their
terms, are expressly stated to be not superior in right of payment to the
Debentures or to rank pari passu in right of payment with the Debentures. For
purposes of this definition, "claim" shall have the meaning assigned thereto in
Section 101(4) of the United States Bankruptcy Code of 1978, as amended.
"Administrative Trustees" shall have the meaning set forth in the Trust
Agreement.
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person; (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person; (c) any Person
directly or indirectly controlling, controlled by, or under common control with
the specified Person; (d) a partnership in which the specified Person is a
general partner; (e) any officer or director of the specified Person; and (f) if
the specified Person is an individual, any entity of which the specified Person
is an officer, director or general partner.
"Authenticating Agent" means an authenticating agent with respect to the
Debentures appointed by the Trustee pursuant to Section 2.10.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or state
law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or any
duly authorized committee of such Board or any other duly designated officers of
the Company.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification.
"Business Day" means, with respect to the Debentures, any day other than a
Saturday or a Sunday or a day on which federal or state banking institutions in
the Borough of Manhattan, The City of New York, are authorized or required by
law, executive order or regulation to close, or a day on which the Corporate
Trust Office of the Trustee or the Property Trustee is closed for business.
2
"Certificate" means a certificate signed by the principal executive
officer, the principal financial officer, the principal accounting officer, the
treasurer or any vice president of the Company. The Certificate need not comply
with the provisions of Section 12.7.
"Certificate of Authentication" shall mean the certificate issued by the
Trustee or the Authenticating Agent as to the form of a Debenture issued under
the Indenture.
"Commission" means the Securities and Exchange Commission or if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Securities" means undivided beneficial interests in the assets of a
Trust which rank pari passu with Preferred Securities issued by such Trust;
provided, however, that upon the occurrence of an Event of Default, the rights
of holders of Common Securities to payment in respect of distributions and
payments upon liquidation, redemption and otherwise are subordinated to the
rights of holders of Preferred Securities.
"Company" means First Merchants Corporation, a corporation duly organized
and existing under the laws of the State of Indiana, and, subject to the
provisions of Article IX, shall also include its successors and assigns.
"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at One Rodney Square, 920 King
Street, Suite 102 Wilmington, Delaware 19801, Attention: Corporate Trust Trustee
Administration.
"Custodian" means any receiver, trustee, assignee, liquidator, or similar
official under any Bankruptcy Law.
"Debentures" shall have the meaning set forth in the Recitals hereto.
"Debentureholder," "holder of Debentures," "registered holder," or other
similar term, means the Person or Persons in whose name or names a particular
Debenture shall be registered on the books of the Company or the Trustee kept
for that purpose in accordance with the terms of this Indenture.
"Debenture Register" shall have the meaning set forth in Section 2.5(b).
"Debenture Registrar" shall have the meaning set forth in Section 2.5(b).
"Debt" means with respect to any Person, whether recourse is to all or a
portion of the assets of such Person and whether or not contingent, (i) every
obligation of such Person for money borrowed; (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services
3
(but excluding trade accounts payable or accrued liabilities arising in the
ordinary course of business); (v) every capital lease obligation of such Person;
and (vi) and every obligation of the type referred to in clauses (i) through (v)
of another Person and all dividends of another Person the payment of which, in
either case, such Person has guaranteed or is responsible or liable, directly or
indirectly, as obligor or otherwise.
"Default" means any event, act or condition that with notice or lapse of
time, or both, would constitute an Event of Default.
"Defaulted Interest" shall have the meaning set forth in Section 2.3.
"Depositary" shall mean, with respect to Debentures of any series, for
which the Company shall determine that such Debentures will be issued as a
Global Debenture, The Depositary Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Exchange Act or other applicable statute or regulation, which, in each case,
shall be designated by the Company pursuant to Section 2.11.
"Direct Action" shall have the meaning set forth in Section 5.8.
"Event of Default" means, with respect to the Debentures, any event
specified in Section 5.1, which has continued for the period of time, if any,
and after the giving of the notice, if any, therein designated.
"Exchange Act," means the Securities Exchange Act of 1934, as amended, as
in effect at the date of execution of this Indenture.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
"Generally Accepted Accounting Principles" means such accounting principles
as are generally accepted at the time of any computation required hereunder.
"Global Debenture" means, with respect to any series of Debentures, a
Debenture of such series executed by the Company and delivered by the Trustee to
the Depositary or pursuant to the Depositary's instruction, all in accordance
with the Indenture, which shall be registered in the name of the Depositary or
its nominee.
"Governmental Obligations" means securities that are (i) direct obligations
of the United States of America for the payment of which its full faith and
credit is pledged; or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America that, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on any such
Governmental Obligation held by such custodian for the account of the holder of
such depositary receipt; provided, however, that (except as required by law)
such custodian is not authorized to make any deduction from the
4
amount payable to the holder of such depositary receipt from any amount received
by the custodian in respect of the Governmental Obligation or the specific
payment of principal of or interest on the Governmental Obligation evidenced by
such depositary receipt.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into in accordance with the terms hereof and that may include the
terms of a particular series of Debentures established as contemplated by
Section 2.2.
"Interest Payment Date," when used with respect to any installment of
interest on a Debenture of any particular series means the date specified in
such Debenture or in a Board Resolution or in an indenture supplemental hereto
with respect to the Debentures as the fixed date on which an installment of
interest with respect to the Debentures is due and payable.
"Officers' Certificate" means a certificate signed by the President or an
Executive Vice President and by the Chief Financial Officer or the Treasurer or
an Assistant Treasurer or the Secretary or an Assistant Secretary of the Company
that is delivered to the Trustee in accordance with the terms hereof. Each such
certificate shall include the statements provided for in Section 12.7, if and to
the extent required by the provisions thereof.
"Opinion of Counsel" means an opinion in writing of independent, outside
legal counsel for the Company that is delivered to the Trustee in accordance
with the terms hereof. Each such opinion shall include the statements provided
for in Section 12.7, if and to the extent required by the provisions thereof.
"Outstanding," when used in reference to Debentures of any particular
series, means, subject to the provisions of Section 7.4, as of any particular
time, all such Debentures theretofore authenticated and delivered by the Trustee
under this Indenture, except (a) Debentures theretofore canceled by the Trustee
or any paying agent, or delivered to the Trustee or any paying agent for
cancellation or that have previously been canceled; (b) Debentures or portions
thereof for the payment or redemption of which moneys or Governmental
Obligations in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been set
aside and segregated in trust by the Company (if the Company shall act as its
own paying agent); provided, however, that if such Debentures or portions of
such Debentures are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as provided herein, or provision satisfactory
to the Trustee shall have been made for giving such notice; and (c) Debentures
in lieu of or in substitution for which other Debentures shall have been
authenticated and delivered pursuant to the terms of Section 2.5; provided,
however, that in determining whether the holders of the requisite percentage of
Debentures have given any request, notice, consent or waiver hereunder,
Debentures held by the Company or any Affiliate of the Company shall not be
included; provided, further, that the Trustee shall be protected in relying upon
any request, notice, consent or waiver unless a Responsible Officer of the
Trustee shall have actual knowledge that the holder of such Debenture is the
Company or an Affiliate thereof.
5
"Person" means any individual, corporation, partnership, joint-venture,
joint-stock company, limited liability company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Predecessor Debenture" of any particular Debenture means every previous
Debenture evidencing all or a portion of the same debt as that evidenced by such
particular Debenture; and, for the purposes of this definition, any Debenture
authenticated and delivered under Section 2.7 in lieu of a lost, destroyed or
stolen Debenture shall be deemed to evidence the same debt as the lost,
destroyed or stolen Debenture.
"Preferred Securities" means undivided beneficial interests in the assets
of a Trust which rank pari passu with Common Securities issued by such Trust;
provided, however, that upon the occurrence of an Event of Default, the rights
of holders of Common Securities to payment in respect of distributions and
payments upon liquidation, redemption and otherwise are subordinated to the
rights of holders of Preferred Securities.
"Preferred Securities Guarantee" means any guarantee that the Company may
enter into with the Trustee or other Persons that operates directly or
indirectly for the benefit of holders of Preferred Securities.
"Property Trustee" has the meaning set forth in the Trust Agreement of the
applicable Trust.
"Responsible Officer" when used with respect to the Trustee means any
officer within the Corporate Trust Office of the Trustee with direct
responsibility for the administration of this Indenture, including any vice
president, any assistant vice president, any assistant secretary or any other
officer or assistant officer of the Trustee who customarily performs functions
similar to those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"Securities Act," means the Securities Act of 1933, as amended, as in
effect at the date of execution of this instrument.
"Senior Debt" means the principal of (and premium, if any) and interest, if
any (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not such
claim for post-petition interest is allowed in such proceeding), on Debt,
whether incurred on or prior to the date of this Indenture or thereafter
incurred, unless, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such obligations are not
superior in right of payment to the Debentures or to other Debt which is pari
passu with, or subordinated to, the Debentures, provided, however, that Senior
Debt shall not be deemed to include (i) any Debt of the Company which when
incurred and without respect to any election under section 1111(b) of the United
States Bankruptcy Code of 1978, as amended, was without recourse to the Company;
(ii) any Debt owed to any employee of the Company; (iii) any Debt which by its
terms is subordinated to trade accounts payable or accrued liabilities arising
in the ordinary course of business to the extent that payments made to the
holders of such Debt by the holders of the Debentures as a result of the
subordination provisions of this
6
Indenture would be greater than they otherwise would have been as a result of
any obligation of such holders to pay amounts over to the obligees on such trade
accounts payable or accrued liabilities arising in the ordinary course of
business as a result of subordination provisions to which such Debt is subject;
and (iv) any Debt which constitutes Subordinated Debt.
"Senior Indebtedness" shall have the meaning set forth in Section 13.1.
"Subordinated Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or
not such claim for post-petition interest is allowed in such proceeding), on
Debt, whether incurred on or prior to the date of this Indenture or thereafter
incurred, which is by its terms expressly provided to be junior and subordinate
to Senior Debt of the Company (other than the Debentures); provided, however,
that Subordinated Debt will not be deemed to include (i) any Debt of the Company
which when incurred and without respect to any election under section 1111(b) of
the United States Bankruptcy Code of 1978, as amended, was without recourse to
the Company; (ii) any Debt owed to any employee of the Company; (iii) any Debt
which by its terms is subordinated to trade accounts payable or accrued
liabilities arising in the ordinary course of business to the extent that
payments made to the holders of such Debt by the holders of the Subordinated
Debentures as a result of the subordination provisions of this Indenture would
be greater than they otherwise would have been as a result of any obligation of
such holders to pay amounts over to the obligees on such trade accounts payable
or accrued liabilities arising in the ordinary course of business as a result of
subordination provisions to which such Debt is subject; (iv) any Debt which
constitutes Senior Debt; and (v) any Debt of the Company under debt securities
(and guarantees in respect of these debt securities) initially issued to any
trust, or a trustee of a trust, partnership or other entity affiliated with the
Company that is, directly or indirectly, a financing vehicle of the Company in
connection with the issuance by that entity of preferred securities or other
securities which are intended to qualify for Tier 1 capital treatment.
"Subsidiary" means, with respect to any Person, (i) any corporation at
least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries or
by such Person and one or more of its Subsidiaries; (ii) any general
partnership, limited liability company, joint venture, trust or similar entity,
at least a majority of whose outstanding partnership or similar interests shall
at the time be owned by such Person, or by one or more of its Subsidiaries, or
by such Person and one or more of its Subsidiaries; and (iii) any limited
partnership of which such Person or any of its Subsidiaries is a general
partner.
"Trust" means each statutory business trust created for the purpose of
issuing its undivided beneficial interests in connection with the issuance of
Debentures under this Indenture.
"Trust Agreement" with respect to a Trust, means the governing instrument
of such Trust, as amended from time to time.
"Trustee" means Wachovia Trust Company, National Association, and, subject
to the provisions of Article VI, shall also include its successors and assigns,
and, if at any time there is more than one Person acting in such capacity
hereunder, "Trustee" shall mean each such Person.
7
"Trust Indenture Act," means the Trust Indenture Act of 1939, as amended,
subject to the provisions of Sections 8.1, 8.2, and 9.1, as in effect at the
date of execution of this instrument.
"Trust Securities" means the Common Securities and Preferred Securities,
collectively.
"Voting Stock," as applied to stock of any Person, means shares, interests,
participations or other equivalents in the equity interest (however designated)
in such Person having ordinary voting power for the election of a majority of
the directors (or the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by reason of the
occurrence of a contingency.
ARTICLE II
DEBENTURES
2.1 Forms Generally.
(a) The Debentures of each series shall be in substantially the form
as established by or pursuant to a Board Resolution and as set forth in an
Officer's Certificate of the Company or in one or more indentures
supplemental hereto, in each case with appropriate insertions, omissions,
substitutions, and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with any law or with any rules made pursuant thereto or
with any rules of any securities exchange, all as may, consistently
herewith, be determined by the officers of the Company executing such
Debentures, as evidenced by their execution of the Debentures.
(b) The form of the Trustee's Certificate of Authentication shall be
in substantially the following form:
This is one of the Debentures of the series designated therein
referred to in the within-mentioned Indenture and [__________]
Supplemental Indenture.
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
By:________________________________
Authorized Signatory
2.2 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Debentures which may be authenticated and
delivered under this Indenture is unlimited. The Debentures may be issued in one
or more series up to the
8
aggregate principal amount of securities of that series from time to time
authorized by or pursuant to a Board Resolution of the Company or pursuant to
one or more indentures supplemental hereto, subject, however, to subsection (c)
of the definition of "Outstanding" in Section 1.1 and the following subsection
(b) of this Section 2.2. Prior to the initial issuance of Debentures of any
series, there shall be established in or pursuant to a Board Resolution of the
Company and set forth in an Officers' Certificate of the Company or established
in one or more indentures supplemental hereto:
(a) the title of the Debentures of the series (which shall distinguish
the Debentures of the series from all other Debentures);
(b) any limit upon the aggregate principal amount of the Debentures of
the series which may be authenticated and delivered under this Indenture
(except for Debentures authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Debentures of the
series pursuant to the terms of this Indenture);
(c) the date or dates on which the principal of and premium, if any,
on the Debentures of the series is payable;
(d) the rate or rates at which the Debentures of the series shall bear
interest, if any, or the method by which such interest may be determined,
the date or dates from which such interest shall accrue, the Interest
Payment Dates on which such interest shall be payable or the manner of
determination of such Interest Payment Dates and the record dates for the
determination of holders to whom interest is payable on any such Interest
Payment Dates;
(e) the place or places where the principal of, and premium, if any,
and any interest on Debentures of the series shall be payable;
(f) the right, if any, to extend the interest payment periods and the
duration of such extension;
(g) the price or prices at which, the period or periods within which
and the terms and conditions upon which Debentures of the series may be
prepaid or redeemed, in whole or in part, at the option of the Company,
pursuant to any sinking fund or otherwise;
(h) the obligation, if any, of the Company to prepay, redeem, purchase
or repay Debentures of the series pursuant to any sinking fund or analogous
provisions or at the option of a Debentureholder thereof and the price or
prices at which, and the period or periods within which, and the terms and
conditions upon which, Debentures of the series shall be prepaid, redeemed,
purchased or repaid, in whole or in part, pursuant to such obligation;
(i) the denominations in which Debentures of the series shall be
issuable;
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(j) any Events of Default with respect to the Debentures of a
particular series, if not set forth herein;
(k) the form of the Debentures of the series including the form of the
Certificate of Authentication of such series (which shall be consistent
with Section 2.1(b));
(l) any trustee, authenticating or paying agents, warrant agents,
transfer agents or registrars with respect to the Debentures of such
series;
(m) whether the Debentures of the series shall be issued in whole or
in part in the form of one or more Global Debentures and, in such case, the
Depositary for such Global Debenture or Debentures, and whether beneficial
owners of interests in any such Global Debentures may exchange such
interests for other Debentures of such series in the manner provided in
Section 2.5, and the manner and the circumstances under which and the place
or places where any such exchanges may occur if other than in the manner
provided in Section 2.5, and any other terms of the series relating to the
global nature of the Global Debentures of such series and the exchange,
registration or transfer thereof and the payment of any principal thereof,
or interest or premium, if any, thereon; and
(n) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debentures of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to such
resolution of the Board of Directors or in any such indenture supplemental
hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution of the Company, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate of the Company setting forth the terms of the series.
2.3 Date and Denomination of Debentures.
The Debentures shall be issuable in such form and in such denominations as
shall be specified as contemplated by Section 2.2. In the absence of any such
specification with respect to the Debentures of any series, the Debentures of
such series shall be issuable as registered Debentures without coupons and in
the denominations of $25 and any multiple thereof. The Debentures shall be
numbered, lettered, or otherwise distinguished in such manner or in accordance
with such plans as the officers of the Company executing the same may determine
with the approval of the Trustee as evidenced by the execution and
authentication thereof.
Every Debenture shall be dated the date of its authentication, shall be
payable on such dates and shall bear interest, if any, from the date set forth
on the face of the Debenture, in each case, as contemplated by Section 2.2. The
interest installment on any Debenture that is payable, and is punctually paid or
duly provided for, on any Interest Payment Date for Debentures of that series
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shall be paid to the Person in whose name said Debenture (or one or more
Predecessor Debentures) is registered at the close of business on the regular
record date for such interest installment. In the event that any Debenture of a
particular series or portion thereof is called for redemption and the redemption
date is subsequent to a regular record date with respect to any Interest Payment
Date and prior to such Interest Payment Date, interest on such Debenture will be
paid upon presentation and surrender of such Debenture as provided in Section
3.2.
Any interest on any Debenture that is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date for any Debenture of the same
series (herein called "Defaulted Interest") shall forthwith cease to be payable
to the registered holder on the relevant regular record date by virtue of having
been such holder, and such Defaulted Interest shall be paid by the Company, at
its election, as provided in clause (a) or clause (b) below:
(a) The Company may make payment of any Defaulted Interest on
Debentures to the Persons in whose names such Debentures (or their
respective Predecessor Debentures) are registered at the close of business
on a special record date for the payment of such Defaulted Interest, which
shall be fixed in the following manner: the Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each such Debenture and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted Interest
which shall not be more than 15 nor less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such special record date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be mailed, first
class postage prepaid, to each Debenture holder at his or her address as it
appears in the Debenture Register, not less than 10 days prior to such
special record date. Notice of the proposed payment of such Defaulted
Interest and the special record date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names such Debentures (or their respective Predecessor Debentures) are
registered on such special record date and shall be no longer payable
pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest on any
Debentures in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Debentures may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this clause, such manner of payment shall be deemed practicable by the
Trustee.
Unless otherwise set forth in a Board Resolution of the Company or one or
more indentures supplemental hereto establishing the terms of any series of
Debentures pursuant to Section 2.2
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hereof, the term "regular record date" as used in this Section with respect to a
series of Debentures with respect to any Interest Payment Date for such series
shall mean either the fifteenth day of the month in which an Interest Payment
Date established for such series pursuant to Section 2.2 hereof shall occur, if
such Interest Payment Date is the last day of a month, or the last day of the
month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.2 hereof shall occur, if such
Interest Payment Date is the fifteenth day of a month, whether or not such date
is a Business Day.
Subject to the foregoing provisions of this Section, each Debenture of a
series delivered under this Indenture upon transfer of or in exchange for or in
lieu of any other Debenture of such series shall carry the rights to interest
accrued and unpaid, and to accrue, that were carried by such other Debenture.
2.4 Execution and Authentications.
(a) The Debentures shall be signed on behalf of the Company by its
President or one of its Vice Presidents or Chief Financial Officer or
Treasurer, attested by its Secretary, one of its Assistant Secretaries or
one of its Vice Presidents. Signatures may be in the form of a manual or
facsimile signature. The Company may use the facsimile signature of any
Person who shall have been a President or Vice President thereof, or of any
Person who shall have been a Secretary or Assistant Secretary thereof,
notwithstanding the fact that at the time the Debentures shall be
authenticated and delivered or disposed of such Person shall have ceased to
be the President or a Vice President, or the Secretary or an Assistant
Secretary, of the Company (and any such signature shall be binding on the
Company). The Debentures may contain such notations, legends or
endorsements required by law, stock exchange rule or usage. Each Debenture
shall be dated the date of its authentication by the Trustee.
(b) A Debenture shall not be valid until authenticated manually by an
authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature shall be conclusive evidence that the Debenture so authenticated
has been duly authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture.
(c) At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Debentures of any series
executed by the Company to the Trustee for authentication, together with a
written order of the Company for the authentication and delivery of such
Debentures signed by its President or any Vice President and its Chief
Financial Officer or the Treasurer or any Assistant Treasurer, and the
Trustee in accordance with such written order shall authenticate and
deliver such Debentures.
(d) In authenticating such Debentures and accepting the additional
responsibilities under this Indenture in relation to such Debentures, the
Trustee shall be entitled to receive, and (subject to Section 6.1) shall be
fully protected in relying upon:
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(i) a copy of any Board Resolution or Resolutions relating
thereto and, if applicable, an appropriate record of any action taken
pursuant to such resolution, in each case certified by the Secretary
or an Assistant Secretary of the Company;
(ii) an executed supplemental indenture, if any;
(iii) an Officers' Certificate setting forth the form and terms
of the Debentures as required pursuant to Section 2.1 and Section 2.2,
respectively; and
(iv) an Opinion of Counsel prepared in accordance with Section
12.7 which shall also state:
(1) that the form of such Debentures has been established
by or pursuant to a resolution of the Board of
Directors or by supplemental indenture as permitted by
Section 2.1 in conformity with the provisions of this
Indenture;
(2) that the terms of such Debentures have been established
by or pursuant to a resolution of the Board of
Directors or by supplemental indenture as permitted by
Section 2.2 in conformity with the provisions of this
Indenture;
(3) that such Debentures, when authenticated and delivered
by the Trustee and issued by the Company in the manner
and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and legally binding
obligations of the Company;
(4) that all laws and requirements in respect of the
execution and delivery by the Company of the Debentures
have been complied with and that authentication and
delivery of the Debentures by the Trustee will not
violate the terms of the Indenture; and
(5) such other matters as the Trustee may reasonably
request.
(e) The Trustee shall not be required to authenticate Debentures of
any series, if the issue of such Debentures pursuant to this Indenture
shall affect the Trustee's own rights, duties or immunities under such
Debentures and this Indenture or otherwise in a manner that is not
reasonably acceptable to the Trustee.
2.5 Registration of Transfer and Exchange.
(a) Subject to Section 2.2(m), Debentures may be exchanged upon
presentation thereof at the office or agency of the Company designated for
such purpose in Wilmington, Delaware, or at the office of the Debenture
Registrar, for other Debentures of the same series in authorized
denominations, upon payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, all as
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provided in this Section 2.5. In respect of any Debentures so surrendered
for exchange, the Company shall execute, the Trustee shall authenticate and
such office or agency shall deliver in exchange therefor the Debenture or
Debentures that the Debentureholder making the exchange shall be entitled
to receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office or
agency designated for such purpose in Wilmington, Delaware, or at the
office of the Debenture Registrar or such other location designated by the
Company a register or registers (herein referred to as the "Debenture
Register") in which, subject to such reasonable regulations as the
Debenture Registrar may prescribe, the Company shall register the
Debentures and the transfers of Debentures as in this Article II provided
and which at all reasonable times shall be open for inspection by the
Trustee. The registrar for the purpose of registering Debentures and
transfer of Debentures as herein provided shall initially be the Trustee
and thereafter as may be appointed by the Company as authorized by Board
Resolution (the "Debenture Registrar"). Upon surrender for transfer of any
Debenture at the office or agency of the Company designated for such
purpose, the Company shall execute, the Trustee shall authenticate and such
office or agency shall deliver in the name of the transferee or transferees
a new Debenture or Debentures of the same series for a like aggregate
principal amount. All Debentures presented or surrendered for exchange or
registration of transfer, as provided in this Section 2.5, shall be
accompanied (if so required by the Company or the Debenture Registrar) by a
written instrument or instruments of transfer, in form satisfactory to the
Company or the Debenture Registrar, duly executed by the registered holder
or by such holder's duly authorized attorney in writing.
(c) No service charge shall be made for any exchange or registration
of transfer of Debentures, or issue of new Debentures in case of partial
redemption, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge in relation thereto, other than
exchanges pursuant to Section 2.6 and Section 8.4 not involving any
transfer.
(d) The Company shall not be required (i) to issue, exchange or
register the transfer of any Debentures of the same series during a period
beginning at the opening of business 15 days before the day of the mailing
of a notice of redemption of less than all the Outstanding Debentures of
the same series and ending at the close of business on the day of such
mailing; nor (ii) to register the transfer of or exchange any Debentures or
portions thereof called for redemption.
(e) Debentures may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Indenture. Any
transfer or purported transfer of any Debenture not made in accordance with
this Indenture shall be null and void.
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2.6 Temporary Debentures.
Pending the preparation of definitive Debentures, the Company may execute,
and the Trustee shall authenticate and deliver, temporary Debentures (printed,
lithographed, or typewritten). Such temporary Debentures shall be substantially
in the form of the definitive Debentures in lieu of which they are issued, but
with such omissions, insertions and variations as may be appropriate for
temporary Debentures, all as may be determined by the Company. Every temporary
Debenture shall be executed by the Company and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Debentures. Without unnecessary delay the Company
shall execute and shall furnish definitive Debentures and thereupon any or all
temporary Debentures may be surrendered in exchange therefor (without charge to
the holders), at the office or agency of the Company designated for the purpose
in Wilmington, Delaware, or such other location designated by the Company, and
the Trustee shall authenticate and such office or agency shall deliver in
exchange for such temporary Debentures an equal aggregate principal amount of
definitive Debentures, unless the Company advises the Trustee to the effect that
definitive Debentures need not be executed and furnished until further notice
from the Company. Until so exchanged, the temporary Debentures shall be entitled
to the same benefits under this Indenture as definitive Debentures authenticated
and delivered hereunder.
2.7 Mutilated, Destroyed, Lost or Stolen Debentures.
(a) In case any temporary or definitive Debenture shall become
mutilated or be destroyed, lost or stolen, the Company (subject to the next
succeeding sentence) shall execute, and upon the Company's request the
Trustee (subject as aforesaid) shall authenticate and deliver, a new
Debenture bearing a number not contemporaneously outstanding, in exchange
and substitution for the mutilated Debenture, or in lieu of and in
substitution for the Debenture so destroyed, lost, stolen or mutilated. In
every case the applicant for a substituted Debenture shall furnish to the
Company and the Trustee such security or indemnity as may be required by
them to save each of them harmless, and, in every case of destruction, loss
or theft, the applicant shall also furnish to the Company and the Trustee
evidence to their satisfaction of the destruction, loss or theft of the
applicant's Debenture and of the ownership thereof. The Trustee may
authenticate any such substituted Debenture and deliver the same upon the
written request or authorization of the President or any Vice President and
the Chief Financial Officer or the Treasurer or any Assistant Treasurer of
the Company. Upon the issuance of any substituted Debenture, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected
therewith. In case any Debenture that has matured or is about to mature
shall become mutilated or be destroyed, lost or stolen, the Company may,
instead of issuing a substitute Debenture, pay or authorize the payment of
the same (without surrender thereof except in the case of a mutilated
Debenture) if the applicant for such payment shall furnish to the Company
and the Trustee such security or indemnity as they may require to save them
harmless, and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or
theft of such Debenture and of the ownership thereof.
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(b) Every replacement Debenture issued pursuant to the provisions of
this Section 2.7 shall constitute an additional contractual obligation of
the Company whether or not the mutilated, destroyed, lost or stolen
Debenture shall be found at any time, or be enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Debentures duly issued hereunder.
All Debentures shall be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debentures, and shall
preclude (to the extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
2.8 Cancellation.
All Debentures surrendered for the purpose of payment, redemption, exchange
or registration of transfer shall, if surrendered to the Company or any paying
agent, be delivered to the Trustee for cancellation, or, if surrendered to the
Trustee, shall be canceled by it, and no Debentures shall be issued in lieu
thereof except as expressly required or permitted by any of the provisions of
this Indenture. On request of the Company at the time of such surrender, the
Trustee shall deliver to the Company canceled Debentures held by the Trustee. In
the absence of such request the Trustee may dispose of canceled Debentures in
accordance with its standard procedures and deliver a certificate of disposition
to the Company. If the Company shall otherwise acquire any of the Debentures,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Debentures unless and until the same are
delivered to the Trustee for cancellation.
2.9 Benefit of Indenture.
Nothing in this Indenture or in the Debentures, express or implied, shall
give or be construed to give to any Person, other than the parties hereto and
the holders of the Debentures (and, with respect to the provisions of Article
XIII, the holders of Senior Indebtedness) any legal or equitable right, remedy
or claim under or in respect of this Indenture, or under any covenant, condition
or provision herein contained; all such covenants, conditions and provisions
being for the sole benefit of the parties hereto and of the holders of the
Debentures (and, with respect to the provisions of Article XIII, the holders of
Senior Indebtedness).
2.10 Authenticating Agent.
(a) So long as any of the Debentures remain Outstanding there may be
an Authenticating Agent for any or all such Debentures, which
Authenticating Agent the Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of the Trustee to
authenticate Debentures issued upon exchange, transfer or partial
redemption thereof, and Debentures so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. All references in
this Indenture to the authentication of Debentures by the Trustee shall be
deemed to include authentication by
16
an Authenticating Agent. Each Authenticating Agent shall be acceptable to
the Company and shall be a corporation that has a combined capital and
surplus, as most recently reported or determined by it, sufficient under
the laws of any jurisdiction under which it is organized or in which it is
doing business to conduct a trust business, and that is otherwise
authorized under such laws to conduct such business and is subject to
supervision or examination by federal or state authorities. If at any time
any Authenticating Agent shall cease to be eligible in accordance with
these provisions, it shall resign immediately.
(b) Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at
any time (and upon request by the Company shall) terminate the agency of
any Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may
appoint an eligible successor Authenticating Agent acceptable to the
Company. Any successor Authenticating Agent, upon acceptance of its
appointment hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder as if originally named as an
Authenticating Agent pursuant hereto.
2.11 Global Debentures.
(a) If the Company shall establish pursuant to Section 2.2 that the
Debentures of a particular series are to be issued as a Global Debenture,
then the Company shall execute and the Trustee shall, in accordance with
Section 2.4, authenticate and deliver, a Global Debenture that (i) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the outstanding Debentures of such series, (ii)
shall be registered in the name of the Depositary or its nominee, (iii)
shall be delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction and (iv) shall bear a legend substantially to the
following effect: "Except as otherwise provided in Section 2.11 of the
Indenture, this Debenture may be transferred, in whole but not in part,
only to another nominee of the Depositary or to a successor Depositary or
to a nominee of such successor Depositary."
(b) Notwithstanding the provisions of Section 2.5, the Global
Debenture of a series may be transferred, in whole but not in part and in
the manner provided in Section 2.5, only to another nominee of the
Depositary for such series or to a successor Depositary for such series
selected or approved by the Company or to a nominee of such successor
Depositary.
(c) If at any time the Depositary for a series of the Debentures
notifies the Company that it is unwilling or unable to continue as
Depositary for such series or if at any time the Depositary for such series
shall no longer be registered or in good standing under the Exchange Act,
or other applicable statute or regulation, and a successor Depositary for
such series is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such condition, as the
case may be, this Section 2.11 shall no longer be applicable to the
Debentures of such series and the
17
Company will execute, and subject to Section 2.5, the Trustee will
authenticate and deliver, the definitive Debentures of such series, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Debenture of such series in exchange for
such Global Debenture. In addition, the Company may at any time determine
that the Debentures of any series shall no longer be represented by a
Global Debenture and that the provisions of this Section 2.11 shall no
longer apply to the Debentures of such series. In such event the Company
will execute and, subject to Section 2.5, the Trustee, upon receipt of an
Officers' Certificate evidencing such determination by the Company, will
authenticate and deliver the definitive Debentures of such series, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Debenture of such series in exchange for
such Global Debenture. Upon the exchange of the Global Debenture for such
definitive Debentures, in authorized denominations, the Global Debenture
shall be cancelled by the Trustee. Such definitive Debentures issued in
exchange for the Global Debenture pursuant to this Section 2.11(c) shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such definitive Debentures to the Depositary for delivery to the
Persons in whose names such definitive Debentures are so registered.
2.12 CUSIP Numbers.
The Company, in issuing the Debentures, may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Debenture holders; provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Debentures or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Debentures, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the CUSIP numbers.
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
3.1 Payment of Principal and Interest.
The Company covenants and agrees for the benefit of each series of
Debentures that it shall duly and punctually pay or cause to be paid the
principal of and interest on the Debentures at the time and place and in the
manner provided herein. Each such payment of the principal of and interest on
the Debentures shall relate only to the Debentures, shall not be combined with
any other payment of the principal of or interest on any other obligation of the
Company, and shall be clearly and unmistakably identified as pertaining to the
Debentures.
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3.2 Maintenance of Agency.
So long as any of the Debentures remain Outstanding, the Company shall
maintain, or shall cause to be maintained, an office or agency in Wilmington,
Delaware, and at such other location or locations as may be designated as
provided in this Section 3.2, where (i) Debentures of each series may be
presented for payment; (ii) Debentures of each series may be presented as
hereinabove authorized for registration of transfer and exchange; and (iii)
notices and demands to or upon the Company in respect of the Debentures of each
series and this Indenture may be given or served, such designation to continue
with respect to such office or agency until the Company shall, by written notice
signed by its President or an Executive Vice President and delivered to the
Trustee, designate some other office or agency for such purposes or any of them.
If at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, notices and demands. In addition to any such
office or agency, the Company may from time to time designate one or more
offices or agencies outside of Wilmington, Delaware, where the Debentures of
each series may be presented for registration or transfer and for exchange in
the manner provided herein, and the Company may from time to time rescind such
designation as the Company may deem desirable or expedient; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain any such office or agency in Wilmington, Delaware,
for the purposes above mentioned. The Company shall give the Trustee prompt
written notice of any such designation or rescission thereof.
3.3 Paying Agents.
(a) The Company shall be the initial paying agent. If the Company
shall appoint one or more paying agents for the Debentures of any series,
other than the Trustee, the Company shall cause each such paying agent to
execute and deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provisions of this Section 3.3:
(i) that it shall hold all sums held by it as such agent for the
payment of the principal of or interest on the Debentures of such
series (whether such sums have been paid to it by the Company or by
any other obligor of the Debentures of such series) in trust for the
benefit of the Persons entitled thereto;
(ii) that it shall give the Trustee notice of any failure by the
Company (or by any other obligor on the Debentures of such series) to
make any payment of the principal of or interest on the Debentures of
such series when the same shall be due and payable;
(iii) that it shall, at any time during the continuance of any
failure referred to in the preceding paragraph (a)(ii) above, upon the
written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such paying agent; and
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(iv) that it shall perform all other duties of paying agent as
set forth in this Indenture.
(b) If the Company shall act as its own paying agent with respect to
the Debentures of any series, it shall on or before each due date of the
principal of or interest on the Debentures of such series, set aside,
segregate and hold in trust for the benefit of the Persons entitled thereto
a sum sufficient to pay such principal or interest so becoming due on the
Debentures of such series until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and shall promptly notify the
Trustee of such action, or any failure (by it or any other obligor on the
Debentures of such series) to take such action. Whenever the Company shall
have one or more paying agents for the Debentures of such series, it shall,
prior to each due date of the principal of or interest on any Debentures of
such series, deposit with the paying agent a sum sufficient to pay the
principal or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal or interest, and (unless
such paying agent is the Trustee) the Company shall promptly notify the
Trustee of this action or failure so to act.
(c) Notwithstanding anything in this Section 3.3 to the contrary, (i)
the agreement to hold sums in trust as provided in this Section 3.3 is
subject to the provisions of Section 10.3 and 10.4; and (ii) the Company
may at any time, for the purpose of obtaining the satisfaction and
discharge with respect to one or more or all of the series of Debentures
hereunder or for any other purpose, pay, or direct any paying agent to pay,
to the Trustee all sums held in trust for any such series by the Company or
such paying agent, such sums to be held by the Trustee upon the same terms
and conditions as those upon which such sums were held by the Company or
such paying agent; and, upon such payment by any paying agent to the
Trustee, such paying agent shall be released from all further liability
with respect to such money.
3.4 Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, shall appoint, in the manner provided in Section 6.11, a Trustee, so
that there shall at all times be a Trustee hereunder.
3.5 Compliance with Consolidation Provisions.
The Company shall not, while any of the Debentures remain outstanding,
consolidate with, or merge into, or merge into itself, or sell or convey all or
substantially all of its property to any other company unless the provisions of
Article IX hereof are complied with.
3.6 Limitation on Transactions.
If Debentures of any series are issued to a Trust or a Trustee of a Trust
in connection with the issuance of Trust Securities by such Trust and (i) there
shall have occurred any event that would constitute an Event of Default; (ii)
the Company shall be in default with respect to any of its obligations under the
Preferred Securities Guarantee relating to such Trust; or (iii) the Company
20
shall have given notice of its election to defer payments of interest on such
Debentures by extending the interest payment period as provided in this
Indenture or any applicable supplement hereto and such period, or any extension
thereof, shall be continuing, then (a) the Company shall not declare or pay, and
shall not allow any of its Subsidiaries to declare or pay, any dividend on, make
any distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock (other than (A)
dividends or distributions in common stock of the Company or any Subsidiary of
the Company, or any declaration of a non-cash dividend in connection with the
implementation of a shareholder rights plan, or the issuance of stock under any
such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, (B) purchases of common stock of the Company related to the
rights under any benefit plans for its directors, officers or employees, (C) as
a result of a reclassification of its capital stock into another class of its
capital stock, or (D) payments of dividends or distributions to the Company);
and (b) the Company shall not make, and shall not allow any of its Subsidiaries
to make, any payment of interest, principal or premium, if any, or repay,
repurchase or redeem any debt securities issued by the Company which rank pari
passu with or junior to the Debentures of such series or make any guarantee
payments with respect to any guarantee by the Company of the debt securities of
any subsidiary of the Company if such guarantee ranks pari passu with or junior
in interest to the Debentures of such series; provided, however, that
notwithstanding the foregoing the Company may make payments pursuant to its
obligations under the Preferred Securities Guarantee relating to such Trust; and
(c) the Company shall not redeem, purchase or acquire less than all of the
outstanding Debentures of such series or any of the Preferred Securities
relating to such Trust.
3.7 Covenants as to the Trusts.
In the event a series of Debentures is issued to a Trust or a trustee of
such Trust in connection with the issuance of Trust Securities by such Trust,
for so long as such Trust Securities remain outstanding, the Company shall (i)
maintain 100% direct or indirect ownership of the Common Securities of such
Trust; provided, however, that any permitted successor of the Company under this
Indenture may succeed to the Company's ownership of such Common Securities; (ii)
not voluntarily terminate, wind up or liquidate such Trust, except upon prior
approval of the Federal Reserve if then so required under applicable capital
guidelines, policies or regulations of the Federal Reserve and use its
reasonable efforts to cause such Trust (a) to remain a business trust (and to
avoid involuntary termination, winding up or liquidation), except in connection
with a distribution of the Debentures of such series, the redemption of all of
the Trust Securities of such Trust or certain mergers, consolidations or
amalgamations, each as permitted by the Trust Agreement of such Trust; and (b)
to otherwise continue not to be treated as an association taxable as a
corporation or partnership for United States federal income tax purposes; (iii)
use its reasonable efforts to cause each holder of Trust Securities of such
Trust to be treated as owning an undivided beneficial interest in the Debentures
of such series; and (iv) the Company, and any successor to the Company, shall
use best efforts to maintain the eligibility of such Preferred Securities for
quotation or listing on any national securities exchange or other organization
on which such Preferred Securities are then quoted or listed (including, if
applicable, The Nasdaq National Market) and shall use best efforts to keep such
Preferred Securities so quoted or listed for so long as such Preferred
Securities remain outstanding. In connection with the distribution of Debentures
that have been issued to a Trust in connection with the issuance of Trust
Securities by such Trust to the holders of the Preferred
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Securities issued by such Trust upon a Dissolution Event, the Company shall use
its best efforts to list such Debentures on The Nasdaq National Market or on
such exchange or other organization as such Preferred Securities are then listed
or quoted. For so long as any Debentures remain outstanding, the Company shall
fulfill all reporting and filing obligations under the Exchange Act, as
applicable to companies having a class of securities registered under Section
12(b) or 12(g) thereunder.
3.8 Waiver of Usury, Stay or Extension Laws.
The Company shall not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performances of this Indenture, and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
ARTICLE IV
DEBENTUREHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
4.1 Company to Furnish Trustee Names and Addresses of Debentureholders.
The Company shall furnish or cause to be furnished to the Trustee (a) on a
quarterly basis on each regular record date for each series of Debentures a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the holders of such series of Debentures as of such regular record
date, provided that the Company shall not be obligated to furnish or cause to
furnish such list at any time that the list shall not differ in any respect from
the most recent list furnished to the Trustee by the Company (in the event the
Company fails to provide such list on a quarterly basis, the Trustee shall be
entitled to rely on the most recent list provided by the Company); and (b) at
such other times as the Trustee may request in writing within 30 days after the
receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that, in either case, no such list need be furnished if the
Trustee shall be the Debenture Registrar.
4.2 Preservation of Information Communications with Debentureholders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the holders
of each series of Debentures contained in the most recent list furnished to
it as provided in Section 4.1 and as to the names and addresses of holders
of each series of Debentures received by the Trustee in its capacity as
registrar for the Debentures (if acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided in
Section 4.1 upon receipt of a new list so furnished.
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(c) Debentureholders may communicate as provided in Section 312(b) of
the Trust Indenture Act with other Debentureholders with respect to their
rights under this Indenture or under the Debentures.
4.3 Reports by the Company.
(a) The Company covenants and agrees to file with the Trustee, within
15 days after the Company is required to file the same with the Commission,
copies of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) that
the Company may be required to file with the Commission pursuant to Section
13 or Section 15(d) of the Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the Commission, in accordance
with the rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents
and reports that may be required pursuant to Section 13 of the Exchange Act
in respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from
time to time by the Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be required from time to
time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail, first class
postage prepaid, or reputable overnight delivery service that provides for
evidence of receipt, to the Debentureholders, as their names and addresses
appear upon the Debenture Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to subsections (a) and (b) of
this Section 4.3 as may be required by rules and regulations prescribed
from time to time by the Commission.
4.4 Reports by the Trustee.
(a) On or before July 31 in each year in which any of the Debentures
are Outstanding, commencing July 31, 2002, the Trustee shall transmit by
mail, first class postage prepaid, to the Debentureholders, as their names
and addresses appear upon the Debenture Register, a brief report, if and to
the extent required under Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) and 313(c) of the
Trust Indenture Act.
(c) A copy of each such report shall, at the time of such transmission
to Debentureholders, be filed by the Trustee with the Company, with each
stock exchange
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upon which any Debentures are listed (if so listed) and also with the
Commission. The Company agrees to notify the Trustee when any Debentures
become listed on any stock exchange.
ARTICLE V
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS ON EVENT OF DEFAULT
5.1 Events of Default.
(a) Unless otherwise provided with respect to a series of Debentures
in an indenture supplemental hereto providing for the creation of that
series, each of the following events of default shall constitute an Event
of Default with respect to Debentures of such series, as shall any other
events as may be established with respect to Debentures of that series as
contemplated by Section 2.2 (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of an administrative or governmental
body):
(i) the Company defaults in the payment of any installment of
interest upon any of the Debentures of that series, as and when the
same shall become due and payable, and continuance of such default for
a period of 30 days; provided, however, that a valid extension of an
interest payment period by the Company in accordance with the terms of
any particular series of Debentures established as contemplated in
this Indenture shall not constitute a default in the payment of
interest for this purpose;
(ii) the Company defaults in the payment of the principal on any
of the Debentures of that series as and when the same shall become due
and payable whether at maturity, upon redemption, by declaration or
otherwise;
(iii) the Company fails to observe or perform any other of its
covenants or agreements with respect to any of the Debentures of that
series for a period of 90 days after the date on which written notice
of such failure, requiring the same to be remedied and stating that
such notice is a "Notice of Default" hereunder, shall have been given
to the Company by the Trustee, by registered or certified mail, or to
the Company and the Trustee by the holders of at least 25% in
principal amount of the Debentures of that series at the time
Outstanding;
(iv) the Company pursuant to or within the meaning of any
Bankruptcy Law (i) commences a voluntary case; (ii) consents to the
entry of an order for relief against it in an involuntary case; (iii)
consents to the appointment of a Custodian of it or for all or
substantially all of its property; or (iv) makes a general assignment
for the benefit of its creditors; or
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(v) a court of competent jurisdiction enters an order under any
Bankruptcy Law that (i) is for relief against the Company in an
involuntary case; (ii) appoints a Custodian of the Company for all or
substantially all of its property; or (iii) orders the liquidation of
the Company, and the order or decree remains unstayed and in effect
for 90 days.
(b) In each and every such case referred to in paragraph (i) through
(v) of this Section 5.1(a), unless the principal of all the Debentures with
respect to which an Event of Default has occurred shall have already become
due and payable, either the Trustee or the holders of not less than 25% in
aggregate principal amount of the Debentures of such series then
Outstanding hereunder, by notice in writing to the Company (and to the
Trustee if given by such Debentureholders) may declare the principal of all
the Debentures of such series to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately due and
payable, notwithstanding anything contained in this Indenture or in the
Debentures of such series.
(c) At any time after the principal of the Debentures of such series
shall have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the holders of a majority in aggregate
principal amount of the Debentures of such series then Outstanding
hereunder, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if: (i) the Company has
paid or deposited with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Debentures of such series and the
principal of any and all Debentures of such series that shall have become
due otherwise than by acceleration (with interest upon such principal, and,
to the extent that such payment is enforceable under applicable law, upon
overdue installments of interest, at the rate per annum expressed in the
Debentures of such series to the date of such payment or deposit) and the
amount payable to the Trustee under Section 6.7; and (ii) any and all
Events of Default under this Indenture, other than the nonpayment of
principal on Debentures that shall not have become due by their terms,
shall have been remedied or waived as provided in Section 5.6. No such
rescission and annulment shall extend to or shall affect any subsequent
default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right with
respect to Debentures of any series under this Indenture and such
proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the
Company and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Company and the Trustee shall continue as though no such proceedings had
been taken.
5.2 Collection of Indebtedness and Suits for Enforcement by Trustee.
(a) The Company covenants that (1) in case it shall default in the
payment of any installment of interest on any of the Debentures of any
series, and such default shall
25
have continued for a period of 30 days; or (2) in case it shall default in
the payment of the principal of any of the Debentures of any series when
the same shall have become due and payable, whether upon maturity of the
Debentures of such series or upon redemption or upon declaration or
otherwise, then, upon demand of the Trustee, the Company shall pay to the
Trustee, for the benefit of the holders of the Debentures of such series,
the whole amount that then shall have become due and payable on all such
Debentures of such series for principal or interest, or both, as the case
may be, with interest upon the overdue principal and (to the extent that
payment of such interest is enforceable under applicable law and, if the
Debentures of such series are held by the Trust or a trustee of the Trust,
without duplication of any other amounts paid by the Trust or trustee in
respect thereof) upon overdue installments of interest at the rate per
annum expressed in the Debentures of such series; and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses
of collection, and the amount payable to the Trustee under Section 6.7.
(b) If the Company shall fail to pay such amounts set forth in Section
5.2(a) forthwith upon such demand, the Trustee, in its own name and as
trustee of an express trust, shall be entitled and empowered to institute
any action or proceedings at law or in equity for the collection of the
sums so due and unpaid, and may prosecute any such action or proceeding to
judgment or final decree, and may enforce any such judgment or final decree
against the Company or other obligor upon such Debentures and collect the
moneys adjudged or decreed to be payable in the manner provided by law out
of the property of the Company or other obligor upon such Debentures,
wherever situated.
(c) In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or judicial
proceedings affecting the Company, any Trust, or the creditors or property
of the Company or any Trust, the Trustee shall have power to intervene in
such proceedings and take any action therein that may be permitted by the
court and shall (except as may be otherwise provided by law) be entitled to
file such proofs of claim and other papers and documents as may be
necessary or advisable in order to have the claims of the Trustee and of
the holders of the Debentures (or, with respect to any of the foregoing
events affecting a Trust, the Debentures that have been issued to such
Trust) allowed for the entire amount due and payable by the Company under
this Indenture at the date of institution of such proceedings and for any
additional amount that may become due and payable by the Company after such
date, and to collect and receive any moneys or other property payable or
deliverable on any such claim, and to distribute the same after the
deduction of the amount payable to the Trustee under Section 6.7; and any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of the Debentures of each series to make
such payments to the Trustee, and, in the event that the Trustee shall
consent to the making of such payments directly to such Debentureholders,
to pay to the Trustee any amount due it under Section 6.7.
(d) All rights of action and of asserting claims under this Indenture,
or under any of the terms established with respect to any of the
Debentures, may be enforced by the Trustee without the possession of any of
such Debentures, or the production thereof at
26
any trial or other proceeding relative thereto, and any such suit or
proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after
provision for payment to the Trustee of any amounts due under Section 6.7,
be for the ratable benefit of the holders of such Debentures. In case of an
Event of Default hereunder, the Trustee may in its discretion proceed to
protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any
covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law. Nothing
contained herein shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Debentureholder any plan of
reorganization, arrangement, adjustment or composition affecting any of the
Debentures or the rights of any holder thereof or to authorize the Trustee
to vote in respect of the claim of any Debentureholder in any such
proceeding.
5.3 Application of Moneys Collected.
Any moneys or other assets collected by the Trustee pursuant to this
Article V with respect to any of the Debentures shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys or other assets on account of principal or interest,
upon presentation of such Debentures in respect of which moneys have been
collected, and notation thereon the payment, if only partially paid, and upon
surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under Section 6.7;
SECOND: To the payment of all Senior Indebtedness of the Company if and to
the extent required by Article XIII; and
THIRD: To the payment of the amounts then due and unpaid upon such
Debentures for principal and interest, in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Debentures for principal and interest, respectively.
5.4 Limitation on Suits.
(a) Except as set forth in this Indenture, no holder of any Debenture
of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless (i) such holder previously shall have given to the Trustee written
notice of an Event of Default and of the continuance thereof with respect
to the Debentures of such series specifying such Event of Default, as
hereinbefore provided; (ii) the holders of not less than 25% in aggregate
principal amount of the Debentures of such series then Outstanding shall
have made written request upon the Trustee to institute such action, suit
27
or proceeding in its own name as trustee hereunder; (iii) such holder or
holders shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred
therein or thereby; (iv) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity, shall have failed to institute any
such action, suit or proceeding; and (v) during such 60 day period, the
holders of a majority in principal amount of the Debentures of such series
do not give the Trustee a direction inconsistent with the request.
(b) Notwithstanding anything contained herein to the contrary or any
other provisions of this Indenture, the right of any holder of any
Debentures to receive payment of the principal of and interest on such
Debentures, as therein provided, on or after the respective due dates
expressed in such Debenture (or in the case of redemption, on the
redemption date), or to institute suit for the enforcement of any such
payment on or after such respective dates or redemption date, shall not be
impaired or affected without the consent of such holder and by accepting a
Debenture hereunder it is expressly understood, intended and covenanted by
the taker and holder of every Debenture of any series with every other such
taker and holder and the Trustee, that no one or more holders of Debentures
of any series shall have any right in any manner whatsoever by virtue or by
availing of any provision of this Indenture to affect, disturb or prejudice
the rights of the holders of any other Debentures, or to obtain or seek to
obtain priority over or preference to any other such holder, or to enforce
any right under this Indenture, except in the manner herein provided and
for the equal, ratable and common benefit of all holders of Debentures of
the applicable series. For the protection and enforcement of the provisions
of this Section 5.4, each and every Debentureholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
5.5 Rights and Remedies Cumulative; Delay or Omission not Waiver.
(a) Except as otherwise provided in Section 2.7(b), all powers and
remedies given by this Article V to the Trustee or to the Debentureholders
shall, to the extent permitted by law, be deemed cumulative and not
exclusive of any other powers and remedies available to the Trustee or the
holders of the Debentures, by judicial proceedings or otherwise, to enforce
the performance or observance of the covenants and agreements contained in
this Indenture or otherwise established with respect to the Debentures of
any series.
(b) No delay or omission of the Trustee or of any holder of any of the
Debentures to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right
or power, or shall be construed to be a waiver of any such default or on
acquiescence therein; and, subject to the provisions of Section 5.4, every
power and remedy given by this Article V or by law to the Trustee or the
Debentureholders may be exercised from time to time, and as often as shall
be deemed expedient, by the Trustee or by the Debentureholders.
28
5.6 Control by Debentureholders.
The holders of a majority in aggregate principal amount of the Debentures
of any or all series affected (voting as one class) at the time Outstanding,
determined in accordance with Section 7.4, shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee;
provided, however, that such direction shall not be in conflict with any rule of
law or with this Indenture. Subject to the provisions of Section 6.1, the
Trustee shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Officers of the
Trustee, determine that the proceeding so directed would involve the Trustee in
personal liability. The holders of a majority in aggregate principal amount of
any series of Debentures at the time Outstanding affected thereby, determined in
accordance with Section 7.4, may on behalf of the holders of all of such
Debentures waive any past default in the performance of any of the covenants
contained herein and its consequences, except (i) a default in the payment of
the principal of, or interest on, any of such Debentures as and when the same
shall become due by the terms of such Debentures otherwise than by acceleration
(unless such default has been cured and a sum sufficient to pay all matured
installments of interest and principal has been deposited with the Trustee (in
accordance with Section 5.1(c)); (ii) a default in the covenants contained in
Section 3.7 with respect to a Trust to which such Debentures have been issued;
or (iii) in respect of a covenant or provision hereof which cannot be modified
or amended without the consent of the holder of each Outstanding Debenture
affected; provided, however, that if the Debentures are held by a Trust or a
trustee of a Trust, such waiver or modification to such waiver shall not be
effective until the holders of a majority in liquidation preference of Trust
Securities of the applicable Trust shall have consented to such waiver or
modification to such waiver; provided further, that if the consent of the holder
of each Outstanding Debenture that has been issued to such Trust in connection
with issuance of Trust Securities by such Trust is required, such waiver shall
not be effective until each holder of the Trust Securities of such Trust shall
have consented to such waiver. Upon any such waiver, the default covered thereby
shall be deemed to be cured for all purposes of this Indenture and the Company,
the Trustee and the holders of the Debentures of each such series (or of all the
Debentures, as the case may be) shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
5.7 Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any Debentures by
such holder's acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken or omitted by it as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.7 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Debentureholder, or group of
Debentureholders of any series holding more than 10% in aggregate principal
amount of the Outstanding Debentures of that series, or to any suit instituted
by any Debentureholder for the enforcement of the payment of the principal of or
interest
29
on any Debentures, on or after the respective due dates expressed in any such
Debenture or established pursuant to this Indenture.
5.8 Direct Action; Right of Set-Off.
In the event that an Event of Default has occurred and is continuing and
such event is attributable to the failure of the Company to pay interest on or
principal of the Debentures of any series on an Interest Payment Date or
Maturity Date, as applicable, then a holder of Preferred Securities issued by a
Trust to which such Debentures have been issued may institute a legal proceeding
directly against the Company for enforcement of payment to such holder of the
principal of or interest on such Debentures having a principal amount equal to
the aggregate Liquidation Amount of such Preferred Securities of such holders (a
"Direct Action"). In connection with such Direct Action, the Company will have a
right of set-off under this Indenture with respect to such series of Debentures
to the extent of any payment actually made by the Company to such holder of the
Preferred Securities with respect to such Direct Action.
ARTICLE VI
CONCERNING THE TRUSTEE
6.1 Certain Duties and Responsibilities of the Trustee.
(a) With respect to the holders of any series of Debentures issued
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to Debentures of that series and after the curing of all Events of
Default that may have occurred with respect to Debentures of that series,
shall undertake to perform with respect to such Debentures such duties and
only such duties as are specifically set forth in this Indenture, and no
implied covenants shall be read into this Indenture against the Trustee. In
case an Event of Default has occurred that has not been cured or waived,
the Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in its exercise,
as a prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs.
(b) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default with respect
to Debentures of any series and after the curing or waiving of all
such Events of Default that may have occurred:
(1) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except
for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no
30
implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any
such certificates or opinions that by any provision
hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to
the requirements of this Indenture;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts;
(iii) the 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 Debentureholders pursuant to Section 5.6 relating
to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture with respect to the
Debentures; and
(iv) none of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not reasonably
assured to it.
6.2 Notice of Defaults.
Within 90 days after actual knowledge by a Responsible Officer of the
Trustee of the occurrence of any default hereunder with respect to any series of
Debentures, the Trustee shall transmit by mail to all holders of such
Debentures, as their names and addresses appear in the Debenture Register,
notice of such default, unless such default shall have been cured or waived;
provided, however, that, except in the case default in the payment of the
principal or interest (including any Additional Interest) on such Debentures,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of the
directors and/or Responsible Officers of the Trustee determines in good faith
that the withholding of such notice is in the interests of the holders of such
Debentures; and provided, further, that in the case of any default of the
character specified in Section 5.1(a)(iii), no such notice to holders of such
Debentures need be sent until at least 30 days after the occurrence thereof. For
the purposes of this Section 6.2, the term "default" means any event which is,
or after notice or lapse of time or both, would become, an Event of Default with
respect to a series of Debentures.
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6.3 Certain Rights of Trustee.
Except as otherwise provided in Section 6.1:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, security or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Board Resolution or an
instrument signed in the name of the Company by its President or any Vice
President and by the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer thereof (unless other evidence in respect thereof
is specifically prescribed herein);
(c) The Trustee shall not be deemed to have knowledge of a default or
an Event of Default, other than an Event of Default specified in Section
5.1(a)(i) or (ii), unless and until it receives written notification of
such Event of Default from the Company or by holders of at least 25% of the
aggregate principal amount of the series of Debentures to which the Event
of Default relates at the time Outstanding;
(d) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted hereunder in good faith and in reliance thereon;
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Debentureholders, pursuant to the provisions of
this Indenture, unless such Debentureholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that may be incurred therein or thereby; nothing contained
herein shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default (that has not been cured or waived) to
exercise with respect to the Debentures to which the Event of Default
relates such of the rights and powers vested in it by this Indenture, and
to use the same degree of care and skill in its exercise, as a prudent
person would exercise or use under the circumstances in the conduct of his
or her own affairs;
(f) The Trustee shall not be liable for any action taken or omitted to
be taken by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture;
(g) The 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, security, or other papers or documents, unless requested in writing
so to do by the holders of not less than a majority in principal
32
amount of the applicable series of the Outstanding Debentures (determined
as provided in Section 7.4); provided, however, that if the payment within
a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such costs, expenses or liabilities as
a condition to so proceeding. The reasonable expense of every such
examination shall be paid by the Company or, if paid by the Trustee, shall
be repaid by the Company upon demand; and
(h) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
6.4 Trustee Not Responsible for Recitals, etc.
(a) The Recitals contained herein and in the Debentures shall be taken
as the statements of the Company, and the Trustee assumes no responsibility
for the correctness of the same.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debentures.
(c) The Trustee shall not be accountable for the use or application by
the Company of any of the Debentures or of the proceeds of such Debentures,
or for the use or application of any moneys paid over by the Trustee in
accordance with any provision of this Indenture, or for the use or
application of any moneys received by any paying agent other than the
Trustee.
6.5 May Hold Debentures.
The Trustee or any paying agent or registrar for the Debentures, in its
individual or any other capacity, may become the owner or pledgee of Debentures
with the same rights it would have if it were not Trustee, paying agent or
Debenture Registrar.
6.6 Moneys Held in Trust.
Subject to the provisions of Section 10.5, all moneys received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder except such as it
may agree with the Company to pay thereon.
6.7 Compensation and Reimbursement.
(a) The Company covenants and agrees to pay to the Trustee, and the
Trustee shall be entitled to, such reasonable compensation (which shall not
be limited by any
33
provision of law in regard to the compensation of a trustee of an express
trust), as the Company and the Trustee may from time to time agree in
writing, for all services rendered by it in the execution of the trusts
hereby created and in the exercise and performance of any of the powers and
duties hereunder of the Trustee, and, except as otherwise expressly
provided herein, the Company shall pay or reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all Persons not regularly in its
employ) except any such expense, disbursement or advance as may arise from
its negligence, bad faith or willful misconduct. The Company also covenants
to indemnify the Trustee (and its officers, agents, directors and
employees) for, and to hold it harmless against, any loss, liability or
expense incurred without negligence, bad faith or willful misconduct on the
part of the Trustee and arising out of or in connection with the acceptance
or administration of this trust, including the costs and expenses of
defending itself against any claim of liability in the premises.
(b) The obligations of the Company under this Section 6.7 to
compensate and indemnify the Trustee and to pay or reimburse the Trustee
for expenses, disbursements and advances shall constitute additional
indebtedness hereunder. Such additional indebtedness shall be secured by a
lien prior to that of the Debentures upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the
benefit of the holders of particular Debentures.
6.8 Reliance on Officers' Certificate.
Except as otherwise provided in Section 6.1, whenever in the administration
of the provisions of this Indenture the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or suffering or
omitting to take any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may, in the absence of
negligence, bad faith or willful misconduct on the part of the Trustee, be
deemed to be conclusively proved and established by an Officers' Certificate
delivered to the Trustee and such certificate, in the absence of negligence, bad
faith or willful misconduct on the part of the Trustee, shall be full warrant to
the Trustee for any action taken, suffered or omitted to be taken by it under
the provisions of this Indenture upon the faith thereof.
6.9 Disqualification: Conflicting Interests.
If the Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.
6.10 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to the Debentures issued
hereunder which shall at all times be a corporation organized and doing business
under the laws of the United States of America or any state or territory thereof
or of the District of Columbia, or a corporation or other
34
Person permitted to act as trustee by the Commission, authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000, and subject to supervision or examination by federal, state,
territorial, or District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section 6.10, 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. The Company may not, nor may any Person
directly or indirectly controlling, controlled by, or under common control with
the Company, serve as Trustee. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 6.10, the Trustee
shall resign immediately in the manner and with the effect specified in Section
6.11.
6.11 Resignation and Removal; Appointment of Successor.
(a) The Trustee or any successor hereafter appointed, may at any time
resign by giving written notice thereof to the Company and by transmitting
notice of resignation by mail, first class postage prepaid, to the
Debentureholders, as their names and addresses appear upon the Debenture
Register. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee with respect to one or more series of
Debentures by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed and have accepted appointment within
30 days after the mailing of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee with respect to such Debentures, or any
Debentureholder who has been a bona fide holder of a Debenture or
Debentures of the applicable series for at least six months may, subject to
the provisions of Sections 6.9 and 6.10, on behalf of himself and all
others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon after such notice, if any, as
it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any one of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 6.9 after written request therefor by the Company or by any
Debentureholder who has been a bona fide holder of a Debenture or
Debentures of the applicable series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.10 and shall fail to resign after written
request therefor by the Company or by any such Debentureholder; or
(iii) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy
proceeding, or a receiver of the Trustee or of its property shall be
appointed or consented to, or any
35
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation.
Then, in any such case, the Company may remove the Trustee with respect to
all Debentures of any series and appoint a successor trustee or trustees by
written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the Trustee
so removed and one copy to the successor trustee or trustees, or, subject
to the provisions of Sections 6.9 and 6.10, unless the Trustee's duty to
resign is stayed as provided herein, any Debentureholder who has been a
bona fide holder of a Debenture or Debentures of the applicable series for
at least six months may, on behalf of that holder and all others similarly
situated, petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor trustee or trustees. Such
court may thereupon after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee or trustees.
(c) The holders of a majority in aggregate principal amount of the
Debentures of any series at the time Outstanding may at any time remove the
Trustee with respect to such series by so notifying the Trustee and the
Company and may appoint a successor Trustee with respect to such series
with the consent of the Company.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee or trustees pursuant to any of the provisions of this
Section 6.11 shall become effective upon acceptance of appointment by the
successor trustee or trustees as provided in Section 6.12.
(e) Any successor trustee appointed pursuant to this Section 6.11 may
be appointed with respect to the Debentures of the applicable series, and
at any time there shall be only one Trustee with respect to the Debentures
of any one series.
6.12 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor trustee, every
successor trustee so appointed shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of
the Company or the successor trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to
such successor trustee all the rights, powers, and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor
trustee all property and money held by such retiring Trustee hereunder.
(b) If a successor trustee is appointed with respect to the Debentures
of one or more (but not all) series, the Company, the retiring trustee and
each successor trustee with respect to the Debentures of any applicable
series shall execute and deliver an indenture supplemental hereto which
shall contain such provisions as shall be deemed
36
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring trustee with respect to the Debentures of any series
as to which the predecessor trustee is not retiring shall continue to be
vested in the predecessor trustee, and shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trustee hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and
that each such trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any
other such trustee.
(c) Upon request of any successor trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and
confirming to such successor trustee all such rights, powers and trusts
referred to in paragraph (a) of this Section 6.12.
(d) No successor trustee shall accept its appointment unless at the
time of such acceptance such successor trustee shall be qualified and
eligible under this Article VI.
(e) Upon acceptance of appointment by a successor trustee as provided
in this Section 6.12, the Company shall transmit notice of the succession
of such trustee hereunder by mail, first class postage prepaid, to the
Debentureholders of the applicable series, as their names and addresses
appear upon the Debenture Register. If the Company fails to transmit such
notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be transmitted at
the expense of the Company.
6.13 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided that such corporation shall be
qualified under the provisions of Section 6.9 and eligible under the provisions
of Section 6.10, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Debentures of any series shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Debentures of such series so authenticated
with the same effect as if such successor Trustee had itself authenticated such
Debentures.
6.14 Preferential Collection of Claims Against the Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship described in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent included therein.
37
ARTICLE VII
CONCERNING THE DEBENTUREHOLDERS
7.1 Evidence of Action by Holders.
(a) Whenever in this Indenture it is provided that the holders of a
majority or specified percentage in aggregate principal amount of any or
all series of Debentures may take any action (including the making of any
demand or request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that at the time of taking any such
action the holders of such majority or specified percentage have joined
therein may be evidenced by any instrument or any number of instruments of
similar tenor executed by such holders of Debentures in Person or by agent
or proxy appointed in writing.
(b) If the Company shall solicit from the Debentureholders of any
series any request, demand, authorization, direction, notice, consent,
waiver or other action, the Company may, at its option, as evidenced by an
Officers' Certificate, fix in advance a record date for such series for the
determination of Debentureholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, but the
Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or
other action may be given before or after the record date, but only the
Debentureholders of such series of record at the close of business on the
record date shall be deemed to be Debentureholders for the purposes of
determining whether Debentureholders of the requisite proportion of
Outstanding Debentures of such series have authorized or agreed or
consented to such request, demand, authorization, direction, notice,
consent, waiver or other action, and for that purpose the Outstanding
Debentures of such series shall be computed as of the record date;
provided, however, that no such authorization, agreement or consent by such
Debentureholders on the record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture not
later than six months after the record date.
7.2 Proof of Execution by Debentureholders.
Subject to the provisions of Section 6.1, proof of the execution of any
instrument by a Debentureholder (such proof shall not require notarization) or
such Debentureholder's agent or proxy and proof of the holding by any Person of
any of the Debentures shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable to the
Trustee.
(b) The ownership of Debentures shall be proved by the Debenture
Register of such Debentures or by a certificate of the Debenture Registrar
thereof.
38
(c) The Trustee may require such additional proof of any matter
referred to in this Section 7.2 as it shall deem necessary.
7.3 Who May Be Deemed Owners.
Prior to the due presentment for registration of transfer of any Debenture,
the Company, the Trustee, any paying agent, any Authenticating Agent and any
Debenture Registrar may deem and treat the Person in whose name such Debenture
shall be registered upon the books of the Company as the absolute owner of such
Debenture (whether or not such Debenture shall be overdue and notwithstanding
any notice of ownership or writing thereon made by anyone other than the
Debenture Registrar) for the purpose of receiving payment of or on account of
the principal of and interest on such Debenture and for all other purposes; and
neither the Company nor the Trustee nor any paying agent nor any Authenticating
Agent nor any Debenture Registrar shall be affected by any notice to the
contrary.
7.4 Certain Debentures Owned by Company Disregarded.
In determining whether the holders of the requisite aggregate principal
amount of Debentures have concurred in any direction, consent or waiver under
this Indenture, the Debentures of the applicable series that are owned by the
Company or any other obligor on such Debentures or by any Person directly or
indirectly controlling or controlled by or under common control with the Company
or any other obligor on such series of Debentures shall be disregarded and
deemed not to be Outstanding for the purpose of any such determination, except
(i) that for the purpose of determining whether the Trustee shall be protected
in relying on any such direction, consent or waiver, only such Debentures that
the Trustee actually knows are so owned shall be so disregarded; and (ii) for
purposes of this Section 7.4, the Trust shall be deemed not to be controlled by
the Company. The Debentures so owned that have been pledged in good faith may be
regarded as Outstanding for the purposes of this Section 7.4, if the pledgee
shall establish to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Debentures and that the pledgee is not a Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In case of a dispute as to
such right, any decision by the Trustee taken upon the advice of counsel shall
be full protection to the Trustee.
7.5 Actions Binding on Future Debentureholders.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 7.1, of the taking of any action by the holders of the
majority or percentage in aggregate principal amount of the Debentures of any
series specified in this Indenture in connection with such action, any holder of
a Debenture that is shown by the evidence to be included in the Debentures the
holders of which have consented to such action may, by filing written notice
with the Trustee, and upon proof of holding as provided in Section 7.2, revoke
such action so far as concerns such Debenture. Except as aforesaid any such
action taken by the holder of any Debenture shall be conclusive and binding upon
such holder and upon all future holders and owners of such Debenture, and of any
Debenture issued in exchange therefor, on registration of transfer thereof or in
place thereof, irrespective of whether or not any notation in regard thereto is
made upon such Debenture. Any action taken by the holders of the majority or
percentage in aggregate principal amount of the
39
Debentures of any series specified in this Indenture in connection with such
action shall be conclusively binding upon the Company, the Trustee and the
holders of all such Debentures.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
8.1 Supplemental Indentures Without the Consent of Debentureholders.
In addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as then in effect), without the
consent of the Debentureholders, for one or more of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency herein, or in any
series of Debentures;
(b) to comply with Article VII;
(c) to provide for uncertificated Debentures in addition to or in
place of certificated Debentures;
(d) to add to the covenants of the Company for the benefit of the
holders of all or any series of Debentures (and if such covenants are for
the benefit of less than all series of Debentures, stating that such
covenants are expressly being included for the benefit of such series) or
to surrender any right or power herein conferred upon the Company;
(e) to add to, delete from, or revise the conditions, limitations, and
restrictions on the authorized amount, terms, or purposes of issue,
authentication, and delivery of any series of Debentures, only as herein
set forth;
(f) to make any change that does not adversely affect the rights of
any Debentureholder in any material respect;
(g) to provide for the issuance of and establish the form and terms
and conditions of any series of Debentures as permitted by Sections 2.1 and
2.2, to establish the form of any certifications required to be furnished
pursuant to the terms of this Indenture or any series of Debentures, or to
add to the rights of the holders of any series of Debentures;
(h) to qualify or maintain the qualification of this Indenture under
the Trust Indenture Act; or
(i) to evidence a consolidation or merger involving the Company as
permitted under Section 9.1.
40
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall
not be obligated to enter into any such supplemental indenture that affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section 8.1 may
be executed by the Company and the Trustee without the consent of the holders of
any of the Debentures at the time Outstanding, notwithstanding any of the
provisions of Section 8.2.
8.2 Supplemental Indentures with Consent of Debentureholders.
With the consent (evidenced as provided in Section 7.1) of any series
(except as may otherwise be provided by the terms of any supplemental indenture
establishing such series in accordance with Section 2.2 hereof) of the holders
of not less than a majority in aggregate principal amount of the Debentures at
the time Outstanding of all series affected by such supplemental indenture
(voting as a class), the Company, when authorized by Board Resolutions, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner not
covered by Section 8.1 the rights of the holders of the Debentures of each
series so affected under this Indenture; provided, however, that no such
supplemental indenture shall without the consent of the holders of each
Debenture then Outstanding and affected thereby, (i) extend the fixed maturity
of any Debentures of any series (except as may otherwise be provided by the
terms of any supplemental indenture establishing such series in accordance with
Section 2.2 hereof), or reduce the rate or extend the time of payment of
interest thereon (except as may otherwise be provided by the terms of any
supplemental indenture establishing such series in accordance with Section 2.2
hereof), or reduce the principal amount thereof without the consent of the
holder of each Debenture so affected; or (ii) reduce the aforesaid percentage of
Debentures, the holders of which are required to consent to any such
supplemental indenture; provided further, that if the applicable Debentures are
held by a Trust or a trustee of such Trust, such supplemental indenture shall
not be effective until the holders of a majority in liquidation preference of
Trust Securities of the related Trust shall have consented to such supplemental
indenture; provided further, that if the consent of the holder of each
Outstanding Debenture of any series is required, such supplemental indenture
shall not be effective until each holder of the Trust Securities of the related
Trust shall have consented to such supplemental indenture. It shall not be
necessary for the consent of the Debentureholders affected thereby under this
Section 8.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
8.3 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the provisions
of this Article VIII, this Indenture shall be and be deemed to be modified and
amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the holders of Debentures of all series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to
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such modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
8.4 Debentures Affected by Supplemental Indentures.
Debentures affected by a supplemental indenture, authenticated and
delivered after the execution of such supplemental indenture pursuant to the
provisions of this Article VIII, may bear a notation in form approved by the
Company, provided such form meets the requirements of any exchange or automated
quotation system upon which the series of Debentures affected thereby may be
listed or quoted, as to any matter provided for in such supplemental indenture.
If the Company shall so determine, new Debentures so modified as to conform, in
the opinion of the Board of Directors of the Company, to any modification of
this Indenture contained in any such supplemental indenture may be prepared by
the Company, authenticated by the Trustee and delivered in exchange for the
Debentures then Outstanding.
8.5 Execution of Supplemental Indentures.
(a) Upon the request of the Company, accompanied by its Board
Resolutions authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence of the consent of
Debentureholders required to consent thereto as aforesaid, the Trustee
shall join with the Company in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise, in which case the Trustee
may in its discretion but shall not be obligated to enter into such
supplemental indenture. The Trustee, subject to the provisions of Section
6.1, may receive an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article VIII is authorized
or permitted by, and conforms to, the terms of this Article VIII and that
it is proper for the Trustee under the provisions of this Article VIII to
join in the execution thereof.
(b) Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 8.5, the
Trustee shall transmit by mail, first class postage prepaid, a notice,
setting forth in general terms the substance of such supplemental
indenture, to the Debentureholders of all series affected thereby as their
names and addresses appear upon the Debenture Register. Any failure of the
Trustee to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
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ARTICLE IX
SUCCESSOR CORPORATION
9.1 Company May Consolidate, etc.
Nothing contained in this Indenture or in any of the Debentures shall
prevent any consolidation or merger of the Company with or into any other
corporation or corporations (whether or not affiliated with the Company, as the
case may be), or successive consolidations or mergers in which the Company, as
the case may be, or its successor or successors shall be a party or parties, or
shall prevent any sale, conveyance, transfer or other disposition of the
property of the Company, as the case may be, or its successor or successors as
an entirety, or substantially as an entirety, to any other corporation (whether
or not affiliated with the Company, as the case may be, or its successor or
successors) authorized to acquire and operate the same; provided, however, the
Company hereby covenants and agrees that, (i) upon any such consolidation,
merger, sale, conveyance, transfer or other disposition, the due and punctual
payment, in the case of the Company, of the principal of and interest on all of
the Debentures, according to their tenor and the due and punctual performance
and observance of all the covenants and conditions of this Indenture to be kept
or performed by the Company as the case may be, shall be expressly assumed, by
supplemental indenture (which shall conform to the provisions of the Trust
Indenture Act, as then in effect) satisfactory in form to the Trustee executed
and delivered to the Trustee by the entity formed by such consolidation, or into
which the Company, as the case may be, shall have been merged, or by the entity
which shall have acquired such property, and the ultimate parent entity of such
successor entity expressly assumes the obligations of the Company under each of
the related Preferred Securities Guarantees, to the extent any Preferred
Securities are then Outstanding; (ii) in case the Company consolidates with or
merges into another Person or conveys or transfers its properties and assets
substantially as an entirety to any Person, the successor Person is organized
under the laws of the United States or any state or the District of Columbia;
and (iii) immediately after giving effect thereto, no Event of Default, and no
event which, after notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing.
9.2 Successor Corporation Substituted.
(a) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition and upon the assumption by the successor
corporation, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of, in the case of the
Company, the due and punctual payment of the principal of and interest on
all of the Debentures Outstanding and the due and punctual performance of
all of the covenants and conditions of this Indenture to be performed by
the Company, as the case may be, such successor corporation shall succeed
to and be substituted for the Company, with the same effect as if it had
been named as the Company herein, and thereupon the predecessor corporation
shall be relieved of all obligations and covenants under this Indenture and
the Debentures.
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(b) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition such changes in phraseology and form (but not
in substance) may be made in the Debentures thereafter to be issued as may
be appropriate.
(c) Nothing contained in this Indenture or in any of the Debentures
shall prevent the Company from merging into itself or acquiring by purchase
or otherwise all or any part of the property of any other Person (whether
or not affiliated with the Company).
9.3 Evidence of Consolidation, etc. to Trustee.
The Trustee, subject to the provisions of Section 6.1, may receive an
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, conveyance, transfer or other disposition, and any such assumption, comply
with the provisions of this Article IX.
ARTICLE X
SATISFACTION AND DISCHARGE
10.1 Satisfaction and Discharge of Indenture.
If at any time: (a) the Company shall have delivered to the Trustee for
cancellation all Debentures theretofore authenticated (other than any Debentures
that shall have been destroyed, lost or stolen and that shall have been replaced
or paid as provided in Section 2.7) and all Debentures for whose payment money
or Governmental Obligations have theretofore been deposited in trust or
segregated and held in trust by the Company (and thereupon repaid to the Company
or discharged from such trust, as provided in Section 10.5); or (b) all such
Debentures not theretofore delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and the
Company shall deposit or cause to be deposited with the Trustee as trust funds
the entire amount in moneys or Governmental Obligations sufficient or a
combination thereof, sufficient in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay at maturity or upon redemption all Debentures
not theretofore delivered to the Trustee for cancellation, including principal
and interest due or to become due to such date of maturity or date fixed for
redemption, as the case may be, and if the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company; then this Indenture shall
thereupon cease to be of further effect except for the provisions of Sections
2.3, 2.5, 2.7, 3.1, 3.2, 3.3, 6.6, 6.7 and 6.10, that shall survive until the
date of maturity or redemption date, as the case may be, and Sections 6.7 and
10.5, that shall survive to such date and thereafter, and the Trustee, on demand
of the Company and at the cost and expense of the Company, shall execute proper
instruments acknowledging satisfaction of and discharging this Indenture.
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10.2 Discharge of Obligations.
If at any time all Debentures of any series not heretofore delivered to the
Trustee for cancellation or that have not become due and payable as described in
Section 10.1 shall have been paid by the Company by depositing irrevocably with
the Trustee as trust funds moneys or an amount of Governmental Obligations
sufficient in the opinion of a nationally recognized certified public accounting
firm to pay at maturity or upon redemption all Debentures of such series not
theretofore delivered to the Trustee for cancellation, including principal and
interest due or to become due to such date of maturity or date fixed for
redemption, as the case may be, and if the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company, then after the date such
moneys or Governmental Obligations, as the case may be, are deposited with the
Trustee, the obligations of the Company under this Indenture shall cease to be
of further effect except for the provisions of Sections 2.3, 2.5, 2.7, 3.1, 3.2,
3.3, 6.6, 6.7 and 10.5 hereof that shall survive until such Debentures shall
mature and be paid. Thereafter, Sections 6.7 and 10.5 shall survive.
10.3 Deposited Moneys to be Held in Trust.
All monies or Governmental Obligations deposited with the Trustee pursuant
to Sections 10.1 or 10.2 shall be held in trust and shall be available for
payment as due, either directly or through any paying agent (including the
Company acting as its own paying agent), to the holders of the applicable
Debentures for the payment or redemption of which such moneys or Governmental
Obligations have been deposited with the Trustee.
10.4 Payment of Monies Held by Paying Agents.
In connection with the satisfaction and discharge of this Indenture, all
moneys or Governmental Obligations then held by any paying agent under the
provisions of this Indenture shall, upon demand of the Company, be paid to the
Trustee and thereupon such paying agent shall be released from all further
liability with respect to such moneys or Governmental Obligations.
10.5 Repayment to Company.
Any monies or Governmental Obligations deposited with any paying agent or
the Trustee, or then held by the Company in trust, for payment of principal of
or interest on any series of Debentures that are not applied but remain
unclaimed by the holders of such Debentures for at least two years after the
date upon which the principal of or interest on such Debentures shall have
respectively become due and payable, shall be repaid to the Company, as the case
may be, on December 31 of each year or (if then held by the Company) shall be
discharged from such trust; and thereupon the paying agent and the Trustee shall
be released from all further liability with respect to such moneys or
Governmental Obligations, and the holder of any of such Debentures entitled to
receive such payment shall thereafter, as an unsecured general creditor, look
only to the Company for the payment thereof.
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ARTICLE XI
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
11.1 No Recourse.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Debentures, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer or
director, past, present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such
predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors as such, of the Company or of
any predecessor or successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Debentures or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Debentures or implied therefrom, are hereby expressly waived and released as
a condition of, and as a consideration for, the execution of this Indenture and
the issuance of such Debentures.
ARTICLE XII
MISCELLANEOUS PROVISIONS
12.1 Effect on Successors and Assigns.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Company shall bind its respective successors
and assigns, whether so expressed or not.
12.2 Actions by Successor.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
corresponding board, committee or officer of any corporation that shall at the
time be the lawful sole successor of the Company.
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12.3 Surrender of Company Powers.
The Company by instrument in writing executed by appropriate authority of
its Board of Directors and delivered to the Trustee may surrender any of the
powers reserved to the Company, and thereupon such power so surrendered shall
terminate both as to the Company, as the case may be, and as to any successor
corporation.
12.4 Notices.
Except as otherwise expressly provided herein any notice or demand that by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the holders of Debentures to or on the Company may be given
or served by being deposited first class postage prepaid in a post-office
letterbox addressed (until another address is filed in writing by the Company
with the Trustee), as follows: First Merchants Corporation, 200 East Jackson
Street, Post Office Box 792, Muncie, Indiana 47308, Attention: Larry R. Helms,
Esq., Senior Vice President & General Counsel. Any notice, election, request or
demand by the Company or any Debentureholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made in writing at the Corporate Trust Office of the Trustee.
12.5 Governing Law.
This Indenture and each Debenture shall be deemed to be a contract made
under the internal laws of the State of Indiana and for all purposes shall be
construed in accordance with the laws of said State.
12.6 Treatment of Debentures as Debt.
It is intended that the Debentures shall be treated as indebtedness and not
as equity for federal income tax purposes. The provisions of this Indenture
shall be interpreted to further this intention.
12.7 Compliance Certificates and Opinions.
(a) Upon any application or demand by the Company to the Trustee to
take any action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent have been
complied with, except that in the case of any such application or demand as
to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
demand, no additional certificate or opinion need be furnished.
(b) Each certificate or opinion of the Company provided for in this
Indenture and delivered to the Trustee with respect to compliance with a
condition or covenant in this Indenture shall include (1) a statement that
the Person making such certificate or
47
opinion has read such covenant or condition; (2) a brief statement as to
the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made such
examination or investigation as, in the opinion of such Person, is
necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and (4) a statement as
to whether or not, in the opinion of such Person, such condition or
covenant has been complied with; provided, however, that each such
certificate shall comply with the provisions of Section 314 of the Trust
Indenture Act.
12.8 Payments on Business Days.
In any case where the date of maturity of interest or principal of any
Debenture or the date of redemption of any Debenture shall not be a Business
Day, then payment of interest or principal may be made on the next succeeding
Business Day with the same force and effect as if made on the nominal date of
maturity or redemption, and no interest shall accrue for the period after such
nominal date, except that if such next succeeding Business Day falls in the next
succeeding calendar year, then such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date.
12.9 Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
12.10 Counterparts.
This Indenture may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but one
and the same instrument.
12.11 Severability.
In case any one or more of the provisions contained in this Indenture or in
any series of Debentures shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Indenture or of such Debentures,
but this Indenture and such Debentures shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
12.12 Assignment.
The Company shall have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or indirect
wholly owned Subsidiary of the Company, provided that, in the event of any such
assignment, the Company shall remain liable for all such obligations. Subject to
the foregoing, this Indenture is binding upon and inures to the benefit of the
48
parties thereto and their respective successors and assigns. This Indenture may
not otherwise be assigned by the parties thereto.
12.13 Acknowledgment of Rights.
The Company acknowledges that, with respect to any series of Debentures
held by a Trust or a trustee of such Trust, if the applicable Property Trustee
fails to enforce its rights under this Indenture as the holder of such
Debentures held as the assets of such Trust, any holder of the applicable
Preferred Securities may institute legal proceedings directly against the
Company to enforce such Property Trustee's rights under this Indenture without
first instituting any legal proceedings against such Property Trustee or any
other person or entity. Notwithstanding the foregoing, if an Event of Default
with respect to a series of Debentures has occurred and is continuing and such
event is attributable to the failure of the Company to pay interest or principal
on such Debentures on the date such interest or principal is otherwise payable
(or in the case of redemption, on the redemption date), the Company acknowledges
that a holder of the applicable Preferred Securities may directly institute a
proceeding for enforcement of payment to such holder of the principal of or
interest on such Debentures having a principal amount equal to the aggregate
liquidation amount of such Preferred Securities of such holder on or after the
respective due date specified in such Debentures.
ARTICLE XIII
SUBORDINATION OF DEBENTURES
13.1 Agreement to Subordinate.
The Company covenants and agrees, and each holder of Debentures issued
hereunder by such holder's acceptance thereof likewise covenants and agrees,
that all Debentures shall be issued subject to the provisions of this Article
XIII; and each holder of a Debenture, whether upon original issue or upon
transfer or assignment thereof, accepts and agrees to be bound by such
provisions. The payment by the Company of the principal of and interest on all
Debentures issued hereunder shall, to the extent and in the manner hereinafter
set forth, be subordinated and junior in right of payment to the prior payment
in full of all Senior Debt, Subordinated Debt and Additional Senior Obligations
(collectively, "Senior Indebtedness") to the extent provided herein, whether
outstanding at the date of this Indenture or thereafter incurred. No provision
of this Article XIII shall prevent the occurrence of any default or Event of
Default hereunder.
13.2 Default on Senior Debt, Subordinated Debt or Additional Senior
Obligations.
In the event and during the continuation of any default by the Company in
the payment of principal, premium, interest or any other payment due on any
Senior Indebtedness of the Company, or in the event that the maturity of any
Senior Indebtedness of the Company has been accelerated because of a default,
then, in either case, no payment shall be made by the Company with respect to
the principal (including redemption payments) of or interest on any series of
Debentures. In the event that, notwithstanding the foregoing, any payment shall
be received by the Trustee when such payment is prohibited by the preceding
sentence of this Section 13.2, such payment shall be held in
49
trust for the benefit of, and shall be paid over or delivered to, the holders of
Senior Indebtedness or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, but only to the
extent that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing within 90 days of
such payment of the amounts then due and owing on the Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of Senior Indebtedness.
13.3 Liquidation; Dissolution; Bankruptcy.
(a) Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution or winding-up or liquidation or
reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due
upon all Senior Indebtedness of the Company shall first be paid in full, or
payment thereof provided for in money in accordance with its terms, before
any payment is made by the Company on account of the principal or interest
on any series of Debentures; and upon any such dissolution or winding-up or
liquidation or reorganization, any payment by the Company, or distribution
of assets of the Company of any kind or character, whether in cash,
property or securities, to which the holders of any series of Debentures or
the Trustee would be entitled to receive from the Company, except for the
provisions of this Article XIII, shall be paid by the Company or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, or by the holders of the applicable
Debentures or by the Trustee under this Indenture if received by them or
it, directly to the holders of Senior Indebtedness of the Company (pro rata
to such holders on the basis of the respective amounts of Senior
Indebtedness held by such holders, as calculated by the Company) or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior
Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay such Senior Indebtedness in full, in
money or money's worth, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness, before any
payment or distribution is made to the holders of any series of Debentures
or to the Trustee.
(b) In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be
received by the Trustee before all Senior Indebtedness of the Company is
paid in full, or provision is made for such payment in money in accordance
with its terms, such payment or distribution shall be held in trust for the
benefit of and shall be paid over or delivered to the holders of such
Senior Indebtedness or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, and their
respective interests may appear, as calculated by the Company, for
application to the payment of all Senior Indebtedness of the Company, as
the case may be, remaining unpaid to the extent necessary to pay such
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Senior Indebtedness in full in money in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the
benefit of the holders of such Senior Indebtedness.
(c) For purposes of this Article XIII, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company
as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article XIII with respect to the Debentures to the payment of all Senior
Indebtedness of the Company, as the case may be, that may at the time be
outstanding, provided that (i) such Senior Indebtedness is assumed by the
new corporation, if any, resulting from any such reorganization or
readjustment; and (ii) the rights of the holders of such Senior
Indebtedness are not, without the consent of such holders, altered by such
reorganization or readjustment. The consolidation of the Company with, or
the merger of the Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer of its
property as an entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided for in Article IX shall
not be deemed a dissolution, winding-up, liquidation or reorganization for
the purposes of this Section 13.3 if such other corporation shall, as a
part of such consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article IX. Nothing in Section 13.2 or in this Section
13.3 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 6.7.
13.4 Subrogation.
(a) Subject to the payment in full of all Senior Indebtedness of the
Company, the rights of the holders of each series of Debentures shall be
subrogated to the rights of the holders of such Senior Indebtedness to
receive payments or distributions of cash, property or securities of the
Company, as the case may be, applicable to such Senior Indebtedness until
the principal of and interest on the Debentures shall be paid in full; and,
for the purposes of such subrogation, no payments or distributions to the
holders of such Senior Indebtedness of any cash, property or securities to
which the holders of any series of Debentures or the Trustee would be
entitled except for the provisions of this Article XIII, and no payment
over pursuant to the provisions of this Article XIII to or for the benefit
of the holders of such Senior Indebtedness by holders of any series of
Debentures or the Trustee, shall, as between the Company, its creditors
other than holders of Senior Indebtedness of the Company, and the holders
of such Debentures, be deemed to be a payment by the Company to or on
account of such Senior Indebtedness. It is understood that the provisions
of this Article XIII are and are intended solely for the purposes of
defining the relative rights of the holders of the Debentures, on the one
hand, and the holders of such Senior Indebtedness on the other hand.
(b) Nothing contained in this Article XIII or elsewhere in this
Indenture or in the Debentures is intended to or shall impair, as between
the Company, its creditors (other than the holders of Senior Indebtedness
of the Company), and the holders of each series of Debentures, the
obligation of the Company, which is absolute and
51
unconditional, to pay to the holders of each series of Debentures the
principal of and interest on such Debentures as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the holders of each series of
Debentures and creditors of the Company, as the case may be, other than the
holders of Senior Indebtedness of the Company, as the case may be, nor
shall anything herein or therein prevent the Trustee or the holder of any
Debenture from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the rights, if any, under
this Article XIII of the holders of such Senior Indebtedness in respect of
cash, property or securities of the Company, as the case may be, received
upon the exercise of any such remedy.
(c) Upon any payment or distribution of assets of the Company referred
to in this Article XIII, the Trustee, subject to the provisions of Article
VI, and the holders of the Debentures shall be entitled to conclusively
rely upon any order or decree made by any court of competent jurisdiction
in which such dissolution, winding-up, liquidation or reorganization
proceedings are pending, or a certificate of the receiver, trustee in
bankruptcy, liquidation trustee, agent or other Person making such payment
or distribution, delivered to the Trustee or to the holders of the
Debentures, for the purposes of ascertaining the Persons entitled to
participate in such distribution, the holders of Senior Indebtedness and
other indebtedness of the Company, as the case may be, the amount thereof
or payable thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent thereto or to this Article XIII.
13.5 Trustee to Effectuate Subordination.
Each holder of Debentures by such holder's acceptance thereof authorizes
and directs the Trustee on such holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article XIII and appoints the Trustee such holder's attorney-in-fact for any and
all such purposes.
13.6 Notice by the Company.
(a) The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company that would prohibit
the making of any payment of monies to or by the Trustee in respect of any
series of Debentures pursuant to the provisions of this Article XIII.
Notwithstanding the provisions of this Article XIII or any other provision
of this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any payment of
monies to or by the Trustee in respect of any series of Debentures pursuant
to the provisions of this Article XIII, unless and until a Responsible
Officer of the Trustee shall have received written notice thereof from the
Company or a holder or holders of Senior Indebtedness or from any trustee
therefor; and before the receipt of any such written notice, the Trustee,
subject to the provisions of Section 6.1, shall be entitled in all respects
to assume that no such facts exist; provided, however, that if the Trustee
shall not have received the notice provided for in this Section 13.6 at
least two Business Days prior to the date upon which by the terms hereof
any money may become payable for any purpose (including, without
52
limitation, the payment of the principal of or interest on any Debenture),
then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such money and to
apply the same to the purposes for which they were received, and shall not
be affected by any notice to the contrary that may be received by it within
two Business Days prior to such date.
(b) The Trustee, subject to the provisions of Section 6.1, shall be
entitled to conclusively rely on the delivery to it of a written notice by
a Person representing himself to be a holder of Senior Indebtedness of the
Company (or a trustee on behalf of such holder) to establish that such
notice has been given by a holder of such Senior Indebtedness or a trustee
on behalf of any such holder or holders. In the event that the Trustee
determines in good faith that further evidence is required with respect to
the right of any Person as a holder of such Senior Indebtedness to
participate in any payment or distribution pursuant to this Article XIII,
the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness
held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent
to the rights of such Person under this Article XIII, and, if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such
payment.
13.7 Rights of the Trustee; Holders of Senior Indebtedness.
(a) The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article XIII in respect of any Senior
Indebtedness at any time held by it, to the same extent as any other holder
of Senior Indebtedness, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder. The Trustee's right to
compensation and reimbursement of expenses as set forth in Section 6.7
shall not be subject to the subordination provisions of the Article XIII.
(b) With respect to the holders of Senior Indebtedness of the Company,
the Trustee undertakes to perform or to observe only such of its covenants
and obligations as are specifically set forth in this Article XIII, and no
implied covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of
such Senior Indebtedness and, subject to the provisions of Section 6.1, the
Trustee shall not be liable to any holder of such Senior Indebtedness if it
shall pay over or deliver to holders of Debentures, the Company or any
other Person money or assets to which any holder of such Senior
Indebtedness shall be entitled by virtue of this Article XIII or otherwise.
13.8 Subordination May Not be Impaired.
(a) No right of any present or future holder of any Senior
Indebtedness of the Company to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any
53
act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof that any such holder
may have or otherwise be charged with.
(b) Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness of the Company may, at any
time and from time to time, without the consent of or notice to the Trustee
or the holders of any series of Debentures, without incurring
responsibility to the holders of any series of Debentures and without
impairing or releasing the subordination provided in this Article XIII or
the obligations hereunder of the holders of any series of Debentures to the
holders of such Senior Indebtedness, do any one or more of the following:
(i) change the manner, place or terms of payment or extend the time of
payment of, or renew or alter, such Senior Indebtedness, or otherwise amend
or supplement in any manner such Senior Indebtedness or any instrument
evidencing the same or any agreement under which such Senior Indebtedness
is outstanding; (ii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing such Senior Indebtedness;
(iii) release any Person liable in any manner for the collection of such
Senior Indebtedness; and (iv) exercise or refrain from exercising any
rights against the Company and any other Person.
[Signatures on next page.]
54
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
FIRST MERCHANTS CORPORATION,
As Company
By: /s/ Larry R. Helms
-----------------------------------------
Name: Larry R. Helms, Esq.
Title: Senior Vice President and General Counsel
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION,
As Trustee
By: /s/ Edward L. Truitt, Jr.
-----------------------------------------
Name: Edward L. Truitt, Jr.
Title: Vice President
55
EXHIBIT 4.7
FIRST MERCHANTS CORPORATION
AND
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION
(formerly known as First Union Trust Company, National Association),
AS INDENTURE TRUSTEE
FIRST SUPPLEMENTAL INDENTURE
8.75% JUNIOR SUBORDINATED DEBENTURES DUE JUNE 30, 2032
Dated as of April 17, 2002
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS........................................................2
1.1 Definitions of Terms..........................................2
ARTICLE II ISSUE, DESCRIPTION, TERMS, CONDITIONS,
REGISTRATION AND EXCHANGE OF THE DEBENTURES...................5
2.1 Designation and Principal Amount..............................5
2.2 Maturity......................................................5
2.3 Form and Payment..............................................5
2.4 Interest......................................................6
ARTICLE III REDEMPTION OF DEBENTURES.........................................7
3.1 Redemption....................................................7
3.2 Special Event Redemption......................................7
3.3 Optional Redemption by Company................................7
3.4 Notice of Redemption..........................................8
3.5 Payment Upon Redemption.......................................9
3.6 No Sinking Fund..............................................10
ARTICLE IV EXTENSION OF INTEREST PAYMENT PERIOD.............................10
4.1 Extension of Interest Payment Period.........................10
4.2 Notice of Extension..........................................11
4.3 Limitation on Transactions...................................11
ARTICLE V PARTICULAR COVENANTS OF THE COMPANY...............................12
5.1 Covenants as to Purchases....................................12
5.2 Limitation on Additional Junior Indebtedness.................12
ARTICLE VI EVENT OF DEFAULT.................................................14
6.1 Additional Event of Default..................................14
ARTICLE VII FORM OF DEBENTURE AND ORIGINAL ISSUE............................14
7.1 Form of Debenture............................................14
7.2 Original Issue of Debentures.................................14
i
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of April 17, 2002 (this "First
Supplemental Indenture") between First Merchants Corporation, an Indiana
corporation (the "Company") and Wachovia Trust Company, National Association
(formerly known as First Union Trust Company, National Association) (the
"Trustee") under the Indenture dated as of April 17, 2002 between the Company
and the Trustee (the "Indenture").
RECITALS
WHEREAS, the Company executed and delivered the Indenture to the Trustee to
provide for the future issuance of the Company's unsecured junior subordinated
debentures to be issued from time to time in one or more series as might be
determined by the Company under the Indenture, in an unlimited aggregate
principal amount which may be authenticated and delivered as provided in the
Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a new series of such debentures to be known as
its 8.75% Junior Subordinated Debentures due June 30, 2032 (the "Debentures"),
the form and substance of such Debentures and the terms, provisions and
conditions thereof to be set forth as provided in the Indenture and this First
Supplemental Indenture;
WHEREAS, First Merchants Capital Trust I, a Delaware statutory business
trust (the "Trust"), has offered to the public up to $53,187,500 aggregate
liquidation amount of its 8.75% Cumulative Trust Preferred Securities (the
"Preferred Securities") and proposes to invest the proceeds from such offering,
together with the proceeds of the issuance and sale by the Trust to the Company
of up to $1,644,975 aggregate liquidation amount of its 8.75% Common Securities
(the "Common Securities"), in up to $54,832,475 aggregate principal amount of
the Debentures;
WHEREAS, the Company has requested that the Trustee execute and deliver
this First Supplemental Indenture;
WHEREAS, all requirements necessary to make this First Supplemental
Indenture a valid instrument in accordance with its terms, and to make the
Debentures, when executed by the Company and authenticated and delivered by the
Trustee, the valid obligations of the Company, have been performed, and the
execution and delivery of this First Supplemental Indenture have been duly
authorized in all respects;
WHEREAS, to provide the terms and conditions upon which the Debentures are
to be authenticated, issued and delivered, the Company has duly authorized the
execution of this First Supplemental Indenture; and
WHEREAS, all things necessary to make this First Supplemental Indenture a
valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase of the
Debentures by the holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the holders of the Debentures:
ARTICLE I
DEFINITIONS
1.1 Definitions of Terms.
A term defined in the Indenture has the same meaning when used in this
First Supplemental Indenture and a term defined anywhere in this First
Supplemental Indenture has the same meaning throughout. A term defined in both
the Indenture and this First Supplemental Indenture has the meaning herein given
to it in this First Supplemental Indenture. Terms used herein shall include the
plural as well as the singular.
"Accelerated Maturity Date" means if the Company elects to accelerate the
Maturity Date in accordance with Section 2.2(b), the date selected by the
Company which is prior to the Scheduled Maturity Date, but is after June 30,
2007.
"Additional Interest" shall have the meaning set forth in Section 2.4(c).
"Additional Junior Indebtedness" means, without duplication, (A) any
indebtedness, liabilities or obligations of the Company, or any Affiliate of the
Company, under debt securities (or guarantees in respect of debt securities)
initially issued to any trust, or a trustee of a trust, partnership or other
entity affiliated with the Company that is, directly or indirectly, a finance
subsidiary (as such term is defined in Rule 3a-5 under the Investment Company
Act) or other financing vehicle of the Company or any Affiliate of the Company
in connection with the issuance by that entity of preferred securities or other
securities that are intended to qualify for Tier 1 capital treatment (or the
then equivalent thereof) for purposes of the capital adequacy guidelines of the
Federal Reserve, as then in effect and applicable to the Company, other than the
Debentures; provided, however, that the inability of the Company to treat all or
any portion of the Additional Junior Indebtedness as Tier 1 capital shall not
disqualify it as Additional Junior Indebtedness if such inability results from
the Company having cumulative preferred stock, minority interests in
consolidated subsidiaries, or any other class of security or interest which the
Federal Reserve now or may hereafter accord Tier 1 capital treatment (including
the Debentures) in excess of the amount which may qualify for treatment as Tier
1 capital under applicable capital adequacy guidelines of the Federal Reserve,
and (B) any indebtedness, liabilities or obligations of the Company, or any
Affiliate of the Company, that is junior or otherwise subordinate in right of
payment to Senior Indebtedness of the Company and that has a maturity or is
otherwise due and payable by the Company on a date twelve (12) months or more
after its date of original issuance, other than the Debentures.
"Capital Treatment Event" means the receipt by the Company and the Trust of
an Opinion of Counsel, rendered by a law firm having a recognized national bank
regulatory practice, 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
thereof or therein, or as a result of any official or administrative
pronouncement or action or judicial decision interpreting or applying such laws
or regulations, which amendment or change is effective or which pronouncement or
decision is announced on or after the date of issuance of the Preferred
Securities under the Trust Agreement, there is more than an insubstantial risk
of impairment of the Company's ability to treat the Preferred Securities (or any
substantial portion thereof) as Tier 1
2
capital (or the then equivalent thereof), for purposes of the capital adequacy
guidelines of the Federal Reserve, as then in effect and applicable to the
Company; provided, however, that the Trust or the Company shall have requested
and received such an Opinion of Counsel with regard to such matters within a
reasonable period of time after the Trust or the Company shall have become aware
of the possible occurrence of any such event; provided, however, that the
inability of the Company to treat all or any portion of the Liquidation Amount
of the Preferred Securities as Tier 1 Capital shall not constitute the basis for
a Capital Treatment Event if such inability results from the Company having
cumulative preferred stock, minority interests in consolidated subsidiaries, or
any other class of security or interest which the Federal Reserve now or may
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 of the Federal Reserve as now or hereafter in effect;
provided, further, however, that the distribution of the Debentures in
connection with the dissolution of the Trust shall not in and of itself
constitute a Capital Treatment Event.
"Change in 1940 Act Law" shall have the meaning set forth in the definition
of "Investment Company Event."
"Compounded Interest" shall have the meaning set forth in Section 4.1.
"Coupon Rate" shall have the meaning set forth in Section 2.4(a).
"Deferred Interest" shall have the meaning set forth in Section 4.1.
"Dissolution Event" means that as a result of the occurrence and
continuation of a Special Event, the Trust is to be dissolved in accordance with
the Trust Agreement and the Debentures held by the Property Trustee are to be
distributed to the holders of the Trust Securities issued by the Trust pro rata
in accordance with the Trust Agreement.
"Extended Interest Payment Period" shall have the meaning set forth in
Section 4.1.
"Interest Payment Date" shall have the meaning set forth in Section 2.4(a).
"Investment Company Act," means the Investment Company Act of 1940, as
amended, as in effect at the date of execution of this Indenture.
"Investment Company Event" means the receipt by the Trust and the Company
of an Opinion of Counsel, rendered by a law firm having a recognized national
tax and securities law practice, to the effect that, as a result of the
occurrence of a change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), the Trust is or
shall be considered an "investment company" that is required to be registered
under the Investment Company Act, which Change in 1940 Act Law becomes effective
on or after the date of original issuance of the Preferred Securities under the
Trust Agreement; provided, however, that the Trust or the Company shall have
requested and received such an Opinion of Counsel with regard to such matters
within a reasonable period of time after the Trust or the Company shall have
become aware of the possible occurrence of any such event.
3
"Maturity Date" means the date on which the Debentures mature and on which
the principal shall be due and payable together with all accrued and unpaid
interest thereon, including Compounded Interest and Additional Interest, if any.
"Ministerial Action" shall have the meaning set forth in Section 3.2.
"Property Trustee" has the meaning set forth in the Trust Agreement.
"Redemption Price" shall have the meaning set forth in Section 3.2.
"Scheduled Maturity Date" means June 30, 2032.
"Special Event" means a Tax Event, an Investment Company Event or a Capital
Treatment Event.
"Tax Event" means the receipt by the Company and the Trust of an Opinion of
Counsel, rendered by a law firm having a recognized national tax and securities
practice, to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which pronouncement or
decision is announced on or after the date of issuance of the Preferred
Securities under the Trust Agreement, there is more than an insubstantial risk
that (i) the Trust is, or shall be within 90 days after the date of such Opinion
of Counsel, subject to United States federal income tax with respect to income
received or accrued on the Debentures; (ii) interest payable by the Company on
the Debentures is not, or within 90 days after the date of such Opinion of
Counsel, shall not be, deductible by the Company, in whole or in part, for
United States federal income tax purposes; or (iii) the Trust is, or shall be
within 90 days after the date of such Opinion of Counsel, subject to more than a
de minimis amount of other taxes, duties, assessments or other governmental
charges; provided, however, that the Trust or the Company shall have requested
and received such an Opinion of Counsel with regard to such matters within a
reasonable period of time after the Trust or the Company shall have become aware
of the possible occurrence of any of the events described in clauses (i) through
(iii) above.
"Trust Agreement" means the Amended and Restated Trust Agreement dated as
of April 17, 2002 among the Company, Wachovia Trust Company, National
Association, as Property Trustee and Delaware Trustee and the administrative
trustees named therein.
"Trust Securities" means the Preferred Securities and the Common
Securities, collectively.
4
ARTICLE II
ISSUE, DESCRIPTION, TERMS, CONDITIONS, REGISTRATION AND EXCHANGE OF
THE DEBENTURES
2.1 Designation and Principal Amount.
There is hereby authorized Debentures designated the 8.75% Junior
Subordinated Debentures due June 30, 2032 limited in aggregate principal amount
to $54,832,475 which amount shall be as set forth in any written order of the
Company for the authentication and delivery of Debentures pursuant to Section
2.2 of the Indenture.
2.2 Maturity.
(a) The Maturity Date shall be either:
(i) the Scheduled Maturity Date; or
(ii) if the Company elects to accelerate the Maturity Date to be
a date prior to the Scheduled Maturity Date in accordance with Section
2.2(c), the Accelerated Maturity Date.
(b) the Company may at any time before the day which is 90 days before
the Scheduled Maturity Date and after June 30, 2007 elect to shorten the
Maturity Date only once to the Accelerated Maturity Date, provided that the
Company has received the prior approval of the Federal Reserve if then
required under applicable capital guidelines, policies or regulations of
the Federal Reserve.
(c) if the Company elects to accelerate the Maturity Date in
accordance with Section 2.2(b), the Company shall give notice to the
Trustee and the Trust (unless the Trust is not the holder of the
Debentures, in which case the Trustee will give notice to the holders of
the Debentures) of the acceleration of the Maturity Date and the
Accelerated Maturity Date at least 30 days and no more than 180 days before
the Accelerated Maturity Date; provided, however that nothing provided in
this Section 2.2 shall limit the Company's rights, as provided in Article
III hereof, to redeem all or a portion of the Debentures at such time or
times on or after June 30, 2007, as the Company may so determine, or at any
time upon the occurrence of a Special Event.
2.3 Form and Payment.
The Debentures shall be issued in fully registered certificated form
without interest coupons. Principal and interest on the Debentures issued in
certificated form shall be payable, the transfer of such Debentures shall be
registrable and such Debentures shall be exchangeable for Debentures bearing
identical terms and provisions at the office or agency of the Trustee; provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the holder at such address as shall appear in the Debenture
Register or by wire transfer to an account maintained
5
by the holder as specified in the Debenture Register, provided that the holder
provides proper transfer instructions by the regular record date.
Notwithstanding the foregoing, so long as the holder of any Debentures is the
Property Trustee, the payment of principal of and interest (including Compounded
Interest and Additional Interest, if any) on such Debentures held by the
Property Trustee shall be made at such place and to such account as may be
designated by the Property Trustee.
2.4 Interest.
(a) Each Debenture shall bear interest at the rate of 8.75% per annum
(the "Coupon Rate") from the original date of issuance until the principal
thereof becomes due and payable, and on any overdue principal and (to the
extent that payment of such interest is enforceable under applicable law)
on any overdue installment of interest at the Coupon Rate, compounded
quarterly, payable quarterly in arrears on March 31, June 30, September 30
and December 31 of each year (each, an "Interest Payment Date"), commencing
on June 30, 2002 to the Person in whose name such Debenture or any
Predecessor Debenture is registered, at the close of business on the
regular record date for such interest installment, which shall be the
fifteenth day of the last month of the calendar quarter.
(b) The amount of interest payable for any period shall be computed on
the basis of a 360-day year of twelve 30-day months. The amount of interest
payable for any period shorter than a full quarterly period for which
interest is computed, shall be computed on the basis of the number of days
elapsed in a 360-day year of twelve 30-day months. In the event that any
date on which interest is payable on the Debentures is not a Business Day,
then payment of interest payable on such date shall be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay) , except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day (and without any reduction of interest
or any other payment in respect of any such acceleration), in each case
with the same force and effect as is made on the date such payment was
originally payable.
(c) If, at any time while the Property Trustee is the holder of any
Debentures, the Trust or the Property Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other taxing
authority, then, in any case, the Company shall pay as additional interest
("Additional Interest") on the Debentures held by the Property Trustee,
such additional amounts as shall be required so that the net amounts
received and retained by the Trust and the Property Trustee after paying
such taxes, duties, assessments or other governmental charges shall be
equal to the amounts the Trust and the Property Trustee would have received
had no such taxes, duties, assessments or other government charges been
imposed.
6
ARTICLE III
REDEMPTION OF DEBENTURES
3.1 Redemption.
Subject to the Company having received prior approval of the Federal
Reserve, if then required under the applicable capital guidelines, policies or
regulations of the Federal Reserve, the Company may redeem the Debentures issued
hereunder on and after the dates set forth in and in accordance with the terms
of this Article III.
3.2 Special Event Redemption.
Subject to the Company having received the prior approval of the Federal
Reserve, if then required under the applicable capital guidelines, policies or
regulations of the Federal Reserve, if a Special Event has occurred and is
continuing, then, notwithstanding Section 3.3(a) but subject to Section 3.3(b),
the Company shall have the right upon not less than 30 days' nor more than 60
days' notice to the holders of the Debentures to redeem the Debentures, in whole
but not in part, for cash within 180 days following the occurrence of such
Special Event (the "180-Day Period") at a redemption price equal to 100% of the
principal amount to be redeemed plus any accrued and unpaid interest thereon to
the date of such redemption (the "Redemption Price"), provided that if at the
time there is available to the Company the opportunity to eliminate, within the
180-Day Period, a Tax Event by taking some ministerial action (a "Ministerial
Action"), such as filing a form or making an election, or pursuing some other
similar reasonable measure which has no adverse effect on the Company, the Trust
or the holders of the Trust Securities issued by the Trust, the Company shall
pursue such Ministerial Action in lieu of redemption, and, provided further,
that the Company shall have no right to redeem the Debentures pursuant to this
Section 3.2 while it is pursuing any Ministerial Action pursuant to its
obligations hereunder, and, provided further, that, if it is determined that the
taking of a Ministerial Action would not eliminate the Tax Event within the 180
Day Period, the Company's right to redeem the Debentures pursuant to this
Section 3.2 shall be restored and it shall have no further obligations to pursue
the Ministerial Action. The Redemption Price shall be paid prior to 12:00 noon,
New York time, on the date of such redemption or such earlier time as the
Company determines, provided that the Company shall deposit with the Trustee an
amount sufficient to pay the Redemption Price by 10:00 a.m., New York time, on
the date such Redemption Price is to be paid.
3.3 Optional Redemption by Company.
(a) Subject to the provisions of Section 3.3(c), except as otherwise
may be specified in this Indenture, the Company shall have the right to
redeem the Debentures, in whole or in part, from time to time, on or after
June 30, 2007, at a Redemption Price equal to 100% of the principal amount
to be redeemed plus any accrued and unpaid interest thereon to the date of
such redemption. Any redemption pursuant to this Section 3.3(a) shall be
made upon not less than 30 days' nor more than 60 days' notice to the
holder of the Debentures, at the Redemption Price. If the Debentures are
only partially redeemed pursuant to this Section 3.3(a), the Debentures
shall be redeemed pro rata or by lot or in such other manner as the Trustee
shall deem appropriate and fair in its discretion. The Redemption Price
shall be paid prior to 12:00 noon, New York time, on
7
the date of such redemption or at such earlier time as the Company
determines provided that the Company shall deposit with the Trustee an
amount sufficient to pay the Redemption Price by 10:00 a.m., New York time,
on the date such Redemption Price is to be paid.
(b) Subject to the provisions of Section 3.3(c), the Company shall
have the right to redeem Debentures at any time and from time to time in a
principal amount equal to the Liquidation Amount (as defined in the Trust
Agreement) of any Preferred Securities purchased and beneficially owned by
the Company, plus an additional principal amount of Debentures equal to the
Liquidation Amount (as defined in the Trust Agreement) of that number of
Common Securities that bears the same proportion to the total number of
Common Securities then outstanding as the number of Preferred Securities to
be redeemed bears to the total number of Preferred Securities then
outstanding. Such Debentures shall be redeemed pursuant to this Section
3.3(b) only in exchange for and upon surrender by the Company to the
Property Trustee of the Preferred Securities and a proportionate amount of
Common Securities, whereupon the Property Trustee shall cancel the
Preferred Securities and Common Securities so surrendered and a Like Amount
(as defined in the Trust Agreement) of Debentures shall be extinguished by
the Trustee and shall no longer be deemed Outstanding.
(c) If a partial redemption of the Debentures would result in the
delisting of the Preferred Securities issued by the Trust from The Nasdaq
National Market or any national securities exchange or other organization
on which the Preferred Securities are then listed or quoted, the Company
shall not be permitted to effect such partial redemption and may only
redeem the Debentures in whole or in part to such extent as would not cause
a delisting.
3.4 Notice of Redemption.
(a) Except in the case of a redemption pursuant to Section 3.3(b), in
case the Company shall desire to exercise such right to redeem all or, as
the case may be, a portion of the Debentures in accordance with the right
reserved so to do, the Company shall, or shall cause the Trustee to upon
receipt of 45 days' written notice from the Company (which notice shall, in
the event of a partial redemption, include a representation to the effect
that such partial redemption will not result in the delisting of the
Preferred Securities as described in Section 3.3(c) above), give notice of
such redemption to holders of the Debentures to be redeemed by mailing,
first class postage prepaid, a notice of such redemption not less than 30
days and not more than 60 days before the date fixed for redemption to such
holders at their last addresses as they shall appear upon the Debenture
Register unless a shorter period is specified in the Debentures to be
redeemed. Any notice that is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the
registered holder receives the notice. In any case, failure duly to give
such notice to the holder of any Debenture designated for redemption in
whole or in part, or any defect in the notice, shall not affect the
validity of the proceedings for the redemption of any other Debentures. In
the case of any redemption of Debentures prior to the expiration of any
restriction on such redemption provided in the terms of such Debentures or
elsewhere herein or in the
8
Indenture, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with any such restriction. Each such
notice of redemption shall specify the date fixed for redemption and the
Redemption Price and shall state that payment of the Redemption Price shall
be made at the Corporate Trust Office, upon presentation and surrender of
such Debentures, that interest accrued to the date fixed for redemption
shall be paid as specified in said notice and that from and after said date
interest shall cease to accrue. If less than all the Debentures are to be
redeemed, the notice to the holders of the Debentures shall specify the
particular Debentures to be redeemed. If the Debentures are to be redeemed
in part only, the notice shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the redemption
date, upon surrender of such Debenture, a new Debenture or Debentures in
principal amount equal to the unredeemed portion thereof shall be issued.
(b) Except in the case of redemption pursuant to Section 3.3(b), if
less than all the Debentures are to be redeemed, the Company shall give the
Trustee at least 45 days' notice in advance of the date fixed for
redemption as to the aggregate principal amount of Debentures to be
redeemed, and thereupon the Trustee shall select, pro rata or by lot or in
such other manner as it shall deem appropriate and fair in its discretion,
the portion or portions (equal to $25 or any integral multiple thereof) of
the Debentures to be redeemed and shall thereafter promptly notify the
Company in writing of the numbers of the Debentures to be redeemed, in
whole or in part. The Company may, if and whenever it shall so elect
pursuant to the terms hereof, by delivery of instructions signed on its
behalf by its Chairman, its President or any Vice President, its Chief
Financial Officer, or its Treasurer, instruct the Trustee or any paying
agent to call all or any part of the Debentures for redemption and to give
notice of redemption in the manner set forth in this Section 3.4, such
notice to be in the name of the Company or its own name as the Trustee or
such paying agent may deem advisable. In any case in which notice of
redemption is to be given by the Trustee or any such paying agent, the
Company shall deliver or cause to be delivered to, or permit to remain
with, the Trustee or such paying agent, as the case may be, such Debenture
Register, transfer books or other records, or suitable copies or extracts
therefrom, sufficient to enable the Trustee or such paying agent to give
any notice by mail that may be required under the provisions of this
Section 3.4.
3.5 Payment Upon Redemption.
(a) If the giving of notice of redemption shall have been completed as
above provided, the Debentures or portions of Debentures to be redeemed
specified in such notice shall become due and payable on the date and at
the place stated in such notice at the applicable Redemption Price, and
interest on such Debentures or portions of Debentures shall cease to accrue
on and after the date fixed for redemption, unless the Company shall
default in the payment of such Redemption Price with respect to any such
Debenture or portion thereof. On presentation and surrender of such
Debentures on or after the date fixed for redemption at the place of
payment specified in the notice, said Debentures shall be paid and redeemed
at the Redemption Price (but if the date fixed for redemption is an
Interest Payment Date, the interest installment payable on such date shall
be payable to the registered holder at the close of business on the
applicable record date pursuant to Section 3.3).
9
(b) Upon presentation of any Debenture that is to be redeemed in part
only, the Company shall execute and the Trustee shall authenticate and the
office or agency where the Debenture is presented shall deliver to the
holder thereof, at the expense of the Company, a new Debenture of
authorized denomination in principal amount equal to the unredeemed portion
of the Debenture so presented.
3.6 No Sinking Fund.
The Debentures are not entitled to the benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
4.1 Extension of Interest Payment Period.
The Company shall have the right, at any time and from time to time during
the term of the Debentures so long as no Event of Default has occurred and is
continuing, to defer payments of interest by extending the interest payment
period of such Debentures for a period not exceeding 20 consecutive quarters
(the "Extended Interest Payment Period"), during which Extended Interest Payment
Period no interest shall be due and payable; provided that no Extended Interest
Payment Period may extend beyond the Maturity Date or end on a date other than
an Interest Payment Date. To the extent permitted by applicable law, interest,
the payment of which has been deferred because of the extension of the interest
payment period pursuant to this Section 4.1, shall bear interest thereon at the
Coupon Rate compounded quarterly for each quarter of the Extended Interest
Payment Period ("Compounded Interest"). At the end of the Extended Interest
Payment Period, the Company shall calculate (and deliver such calculation to the
Trustee) and pay all interest accrued and unpaid on the Debentures, including
any Additional Interest and Compounded Interest (together, "Deferred Interest")
that shall be payable to the holders of the Debentures in whose names the
Debentures are registered in the Debenture Register on the first record date
after the end of the Extended Interest Payment Period. Before the termination of
any Extended Interest Payment Period, the Company may further extend such period
so long as no Event of Default has occurred and is continuing, provided that
such period together with all such further extensions thereof shall not exceed
20 consecutive quarters, or extend beyond the Maturity Date of the Debentures or
end on a date other than an Interest Payment Date. Upon the termination of any
Extended Interest Payment Period and upon the payment of all Deferred Interest
then due, the Company may commence a new Extended Interest Payment Period,
subject to the foregoing requirements. No interest shall be due and payable
during an Extended Interest Payment Period, except at the end thereof, but the
Company may prepay at any time all or any portion of the interest accrued during
an Extended Interest Payment Period.
10
4.2 Notice of Extension.
(a) If the Property Trustee is the only registered holder of the
Debentures at the time the Company selects an Extended Interest Payment
Period, the Company shall give written notice to the Administrative
Trustees, the Property Trustee and the Trustee of its selection of such
Extended Interest Payment Period two Business Days before the earlier of
(i) the next succeeding date on which Distributions on the Trust Securities
issued by the Trust are payable; or (ii) the date the Trust is required to
give notice of the record date, or the date such Distributions are payable,
to The Nasdaq National Market or other applicable self-regulatory
organization or to holders of the Preferred Securities issued by the Trust,
but in any event at least one Business Day before such record date.
(b) If the Property Trustee is not the only holder of the Debentures
at the time the Company selects an Extended Interest Payment Period, the
Company shall give the holders of the Debentures and the Trustee written
notice of its selection of such Extended Interest Payment Period at least
two Business Days before the earlier of (i) the next succeeding Interest
Payment Date; or (ii) the date the Company is required to give notice of
the record or payment date of such interest payment to The Nasdaq National
Market or other applicable self-regulatory organization or to holders of
the Debentures.
(c) The quarter in which any notice is given pursuant to paragraphs
(a) or (b) of this Section 4.2 shall be counted as one of the 20 quarters
permitted in the maximum Extended Interest Payment Period permitted under
Section 4.1.
4.3 Limitation on Transactions.
If (i) the Company shall exercise its right to defer payment of interest as
provided in Section 4.1, or (ii) there shall have occurred and be continuing any
Event of Default, then (a) the Company shall not declare or pay, and shall not
allow any of its Subsidiaries to declare or pay, any dividend on, make any
distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock (other than (A)
dividends or distributions in common stock of the Company or any Subsidiary of
the Company, or any declaration of a non-cash dividend in connection with the
implementation of a shareholder rights plan, or the issuance of stock under any
such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, (B) purchases of common stock of the Company related to the
rights under any benefit plans for its directors, officers or employees, (C) as
a result of a reclassification of its capital stock for another class of its
capital stock, or (D) payments of dividends or distributions to the Company);
(b) the Company shall not make, or allow any of its Subsidiaries to make, any
payment of interest, principal or premium, if any, or repay, repurchase or
redeem any debt securities issued by the Company which rank pari passu with or
junior to the Debentures or make any guarantee payment with respect to any
guarantee by the Company of the debt securities of any Subsidiary of the Company
if such guarantee ranks pari passu with or junior to the Debentures; provided,
however, that, notwithstanding the foregoing, the Company may make payments
pursuant to its obligations under the Preferred Securities Guarantee; and (c)
the Company shall not redeem, purchase or acquire less than all of the
outstanding Debentures or any of the Preferred Securities.
11
ARTICLE V
PARTICULAR COVENANTS OF THE COMPANY
5.1 Covenants as to Purchases.
Except upon the exercise by the Company of its right to redeem the
Debentures pursuant to Section 3.2 upon the occurrence and continuation of a
Special Event or pursuant to Section 3.3(b), prior to June 30, 2032, the Company
shall not purchase any Debentures, in whole or in part, from the Trust.
5.2 Limitation on Additional Junior Indebtedness.
Anything in the Indenture to the contrary notwithstanding, the Company
shall not, and it shall not cause or permit any Affiliate of the Company to,
incur, issue or be obligated on any Additional Junior Indebtedness, either
directly or indirectly, by way of guarantee, suretyship or otherwise, other
than:
(a) Additional Junior Indebtedness that, by its terms, is expressly
stated to be junior and subordinate in all respects to the Debentures; or
(b) Additional Junior Indebtedness that, by its terms, is expressly
stated to be pari passu and rank equally in all respects with the
Debentures; provided, however, that neither the Company nor any of its
Affiliates shall incur, issue or otherwise become obligated on any
Additional Junior Indebtedness pursuant to this Section 5.2(b) unless the
quotient of "X" divided by "Y" is less than 0.60, where "X" and "Y" are
calculated as described in Section 5.2(c) and 5.2(d), respectively.
(c) As used in Section 5.2(b), "X" means the sum of the following:
(i) the aggregate liquidation amount or principal amount, as the
case may be, of the Debentures Outstanding at the time of the proposed
issuance of such Additional Junior Indebtedness pursuant to Section
5.2(b), plus
(ii) the aggregate liquidation amount or principal amount, as the
case may be, of any Additional Junior Indebtedness previously issued
and outstanding at the time of the proposed issuance of such
Additional Junior Indebtedness pursuant to Section 5.2(b), excluding
any such Additional Junior Indebtedness that, by its terms, is
expressly stated to be junior and subordinate in all respects to the
Debentures, plus
(iii) the aggregate liquidation amount or principal amount, as
the case may be, of the Additional Junior Indebtedness proposed to be
issued or otherwise incurred pursuant to Section 5.2(b), plus
(iv) the principal amount of any Senior Indebtedness of the
Company outstanding at the time of the proposed issuance of such
Additional Junior Indebtedness pursuant to Section 5.2(b) and that has
a maturity or is otherwise
12
due and payable by the Company on a date twelve (12) months or more
after the time of the proposed issuance of such Additional Junior
Indebtedness pursuant to Section 5.2(b).
(d) As used in Section 5.2(b), "Y" means the sum of the following:
(i) the sum of (y) the "common stockholders' equity" of the
Company, plus (z) the "perpetual preferred stock" of the Company, each
calculated on a consolidated basis and in accordance with Appendix A
to Part 225 (Capital adequacy guidelines for bank-holding companies;
risk-based measure) of Federal Reserve Regulation Y (12 CFR 225, as
amended, as in effect at the date of execution of this Indenture),
without regard to limitations therein with respect to the inclusion of
perpetual preferred stock (whether cumulative or noncumulative) in
Tier 1 capital, determined as of the last day of the month immediately
preceding the month during which the proposed issuance of the
Additional Junior Indebtedness pursuant to Section 5.2(b) is scheduled
to occur (provided, however, that in no event shall any portion of the
Debentures, the Additional Junior Indebtedness or the Senior
Indebtedness described in Section 5.2(c) also be included in "Y" under
this Section 5.2(d)), plus
(ii) any other preferred stock of the Company that does not
otherwise qualify as "perpetual preferred stock" and is not included
in clause (d)(i) above, plus
(iii) the aggregate liquidation amount or principal amount, as
the case may be, of any Additional Junior Indebtedness, which by its
terms is expressly stated to be junior and subordinate in all respects
to the Debentures and which was previously issued and outstanding at
the time of the proposed issuance of such Additional Junior
Indebtedness pursuant to Section 5.2(b).
(e) Notwithstanding the foregoing, the limitations of this Section 5.2
shall not in any way preclude the Company from merging with or into, or
from acquiring or being acquired by, another Person (including by way of
merger, stock purchase or acquisition of assets) that is not an Affiliate
of the Company in an arm's length transaction entered into in good faith,
even though the pro forma consolidated balance sheet of the surviving
Person immediately following the consummation of such merger, or of the
acquiror immediately following the completion of such acquisition
transaction, may include Additional Junior Indebtedness in amounts in
excess of amounts that would otherwise be permitted by this Section 5.2;
provided, however, that thereafter the limitations on future incurrences of
Additional Junior Indebtedness in this Section 5.2 shall continue to apply
to the Company (in the event that it is the surviving corporation in such
merger transaction or the acquiror in such acquisition transaction) and
shall apply to the other Person (in the event that it is the surviving
corporation in such merger transaction or the acquiror in such acquisition
transaction) whether or not such other Person is expressly made a party
hereto.
13
ARTICLE VI
EVENT OF DEFAULT
6.1 Additional Event of Default.
In addition to the Events of Default events set forth in the Indenture, an
"Event of Default" with respect to the Debentures will be deemed to occur if the
Trust shall have voluntarily or involuntarily dissolved, wound-up its business
or otherwise terminated its existence except in connection with (i) the
distribution of Debentures to holders of Trust Securities in liquidation of
their interests in the Trust; (ii) the redemption of all of the outstanding
Trust Securities of the Trust; or (iii) certain mergers, consolidations or
amalgamations, each as permitted by the Trust Agreement.
ARTICLE VII
FORM OF DEBENTURE AND ORIGINAL ISSUE
7.1 Form of Debenture.
The Debenture and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the forms contained as Exhibit A to
this Indenture, attached hereto and incorporated herein by reference.
7.2 Original Issue of Debentures.
Debentures in the aggregate principal amount of $47,680,425 may, upon
execution of this Indenture, be executed by the Company and delivered to the
Trustee for authentication. If the Underwriters exercise their Option and there
is an Option Closing Date (as such terms are defined in the Underwriting
Agreement, dated April 12, 2002, by and among the Company, the Trust and Stifel,
Nicolaus & Company, Incorporated and RBC Dain Rauscher Inc. as
co-representatives of the several Underwriters named therein) then, on such
Option Closing Date, Debentures in the additional aggregate principal amount of
up to $7,152,050 may be executed by the Company and delivered to the Trustee for
authentication. The Trustee shall thereupon authenticate and deliver said
Debentures to or upon the written order of the Company, signed by its President,
or any Vice President and its Chief Financial Officer or the Treasurer or an
Assistant Treasurer, without any further action by the Company.
[Signatures on next page.]
14
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, all as of the day and year first above written.
FIRST MERCHANTS CORPORATION
By: /s/ Larry R. Helms
-----------------------------------------
Name: Larry R. Helms, Esq.
Title: Senior Vice President and General Counsel
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION,
As Trustee
By: /s/ Edward L. Truitt, Jr.
-----------------------------------------
Name: Edward L. Truitt, Jr.
Title: Vice President
15
EXHIBIT A
(FORM OF FACE OF DEBENTURE)
FIRST MERCHANTS CORPORATION
8.75% JUNIOR SUBORDINATED DEBENTURE
DUE JUNE 30, 2032
No. 1 $47,680,425
CUSIP No. 320817AA7
First Merchants Corporation, an Indiana corporation (the "Company," which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to, First Merchants Capital
Trust I, or registered assigns, the principal sum of Forty-Seven Million Six
Hundred Eighty Thousand Four Hundred Twenty-Five Dollars ($47,680,425) on June
30, 2032 (the "Stated Maturity"), and to pay interest on said principal sum from
April 17, 2002 or from the most recent interest payment date (each such date, an
"Interest Payment Date") to which interest has been paid or duly provided for,
quarterly (subject to deferral as set forth herein) in arrears on the last day
of March, June, September and December of each year commencing June 30, 2002, at
the rate of 8.75% per annum until the principal hereof shall have become due and
payable, and on any overdue principal and (without duplication and to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum compounded quarterly.
The amount of interest payable on any Interest Payment Date shall be computed on
the basis of a 360-day year of twelve 30-day months. The amount of interest for
any partial period shall be computed on the basis of the number of days elapsed
in a 360-day year of twelve 30-day months. In the event that any date on which
interest is payable on this Debenture is not a business day, then payment of
interest payable on such date shall be made on the next succeeding day that is a
business day (and without any interest or other payment in respect of any such
delay) except that, if such business day is in the next succeeding calendar
year, payment of such interest will be made on the immediately preceding
business day, in each case, with the same force and effect as if made on such
date. The interest installment so payable, and punctually paid or duly provided
for, on any Interest Payment Date shall, as provided in the Indenture, be paid
to the person in whose name this Debenture (or one or more Predecessor
Debentures, as defined in said Indenture) is registered at the close of business
on the regular record date for such interest installment, which shall be the
close of business on the business day next preceding such Interest Payment Date
unless otherwise provided in the Indenture. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered holders on such regular record date and may be paid to the Person in
whose name this Debenture (or one or more Predecessor Debentures) is registered
at the close of business on a special record date to be fixed by the Trustee for
the payment of such defaulted interest, notice thereof shall be fixed by the
Trustee for the payment of such defaulted interest, notice thereof shall be
given to the registered holders of the Debentures not less than 10 days prior to
such special record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities
exchange or quotation system on or in which the Debentures may be listed or
quoted, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture. The principal of and the interest on this
Debenture shall be payable at the office or agency of the Trustee maintained for
that purpose in any coin or currency of the United States of America that at the
time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the registered holder at such address as shall appear
in the Debenture Register. Notwithstanding the foregoing, so long as the holder
of this Debenture is the Property Trustee, the payment of the principal of and
interest on this Debenture shall be made at such place and to such account as
may be designated by the Trustee.
The Stated Maturity may be shortened at any time by the Company to any date
not earlier than June 30, 2007, subject to the Company having received prior
approval of the Federal Reserve if then required under applicable capital
guidelines, policies or regulations of the Federal Reserve.
The indebtedness evidenced by this Debenture is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Indebtedness, and this Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each holder of this Debenture,
by accepting the same, (a) agrees to and shall be bound by such provisions; (b)
authorizes and directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the subordination
so provided; and (c) appoints the Trustee his or her attorney-in-fact for any
and all such purposes. Each holder hereof, by his or her acceptance hereof,
hereby waives all notice of the acceptance of the subordination provisions
contained herein and in the Indenture by each holder of Senior Indebtedness,
whether now outstanding or hereafter incurred, and waives reliance by each such
holder upon said provisions.
This Debenture shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Debenture are continued on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
[Signatures on next page.]
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Dated: April 17, 2002
FIRST MERCHANTS CORPORATION
By:_______________________________
Name:_____________________________
Title:____________________________
Attest:
By:_______________________________
Name:_____________________________
Title:____________________________
A-3
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures described in the within-mentioned Indenture.
Dated: April 17, 2002
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee or Authentication Agent
By:_______________________________
Name:_____________________________
Title:____________________________
A-4
[FORM OF REVERSE OF DEBENTURE]
8.75% JUNIOR SUBORDINATED DEBENTURE DUE JUNE 30, 2032
(CONTINUED)
This Debenture is one of the subordinated debentures of the Company (herein
sometimes referred to as the "Debentures"), all issued or to be issued under and
pursuant to an Indenture dated as of April 17, 2002 (the "Original Indenture")
duly executed and delivered between the Company and Wachovia Trust Company,
National Association, as Trustee (the "Trustee"), as supplemented by a First
Supplemental Indenture dated as of April 17, 2002 (the "Supplemental Indenture"
and, together with the Original Indenture, the "Indenture") duly executed and
delivered between the Company and Wachovia Trust Company, National Association,
as Trustee, to which Indenture reference is hereby made for a description of the
rights, limitations of rights, obligations, duties and immunities thereunder of
the Trustee, the Company and the holders of the Debentures. The Debentures are
limited in aggregate principal amount as specified in the Indenture.
Because of the occurrence and continuation of a Special Event (as defined
in the Indenture), in certain circumstances, this Debenture may become due and
payable at the principal amount together with any interest accrued thereon (the
"Redemption Price"). The Redemption Price shall be paid prior to 12:00 noon,
Eastern Standard Time, on the date of such redemption or at such earlier time as
the Company determines. The Company shall have the right as set forth in the
Indenture to redeem this Debenture at the option of the Company, without premium
or penalty, in whole or in part at any time on or after June 30, 2007 (an
"Optional Redemption"), or at any time in certain circumstances upon the
occurrence of a Special Event, at a Redemption Price equal to 100% of the
principal amount hereof plus any accrued but unpaid interest hereon, to the date
of such redemption. Any redemption pursuant to this paragraph shall be made upon
not less than 30 days nor more than 60 days notice, at the Redemption Price. The
Redemption Price shall be paid at the time and in the manner provided therefor
in the Indenture. If the Debentures are only partially redeemed by the Company
pursuant to an Optional Redemption, the Debentures shall be redeemed pro rata or
by lot or by any other method utilized by the Trustee as described in the
Indenture.
In the event of redemption of this Debenture in part only, a new Debenture
or Debentures for the unredeemed portion hereof shall be issued in the name of
the holder hereof upon the cancellation hereof.
In case an Event of Default (as defined in the Indenture) shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than a majority in aggregate
principal amount of the Debentures at the time Outstanding (as defined in the
Indenture) to execute supplemental indentures for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or of modifying in any manner the
rights of the
A-5
holders of the Debentures; provided, however, that no such supplemental
indenture shall (i) extend the fixed maturity of the Debentures except as
provided in the Indenture, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, without the consent of
the holder of each Debenture so affected; or (ii) reduce the aforesaid
percentage of Debentures, the holders of which are required to consent to any
such supplemental indenture, without the consent of the holders of each
Debenture then Outstanding and affected thereby. The Indenture also contains
provisions permitting the holders of a majority in aggregate principal amount of
the Debentures at the time Outstanding, on behalf of all of the holders of the
Debentures, to waive any past default in the performance of any of the covenants
contained in the Indenture, or established pursuant to the Indenture, and its
consequences, except a default in the payment of the principal of or interest on
any of the Debentures. Any such consent or waiver by the registered holder of
this Debenture (unless revoked as provided in the Indenture) shall be conclusive
and binding upon such holder and upon all future holders and owners of this
Debenture and of any Debenture issued in exchange herefor or in place hereof
(whether by registration of transfer or otherwise), irrespective of whether or
not any notation of such consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal and interest on this Debenture
at the time and place and at the rate and in the money herein prescribed.
Provided certain conditions are met, the Company shall have the right at
any time during the term of the Debentures and from time to time to extend the
interest payment period of such Debentures for up to 20 consecutive quarters
(each, an "Extended Interest Payment Period"), at the end of which period the
Company shall pay all interest then accrued and unpaid (together with interest
thereon at the rate specified for the Debentures to the extent that payment of
such interest is enforceable under applicable law). Before the termination of
any such Extended Interest Payment Period, so long as no Event of Default shall
have occurred and be continuing, the Company may further extend such Extended
Interest Payment Period, provided that such Extended Interest Payment Period
together with all such further extensions thereof shall not exceed 20
consecutive quarters, extend beyond the Stated Maturity or end on a date other
than an Interest Payment Date. At the termination of any such Extended Interest
Payment Period and upon the payment of all accrued and unpaid interest and any
additional amounts then due and subject to the foregoing conditions, the Company
may commence a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations therein set
forth, this Debenture is transferable by the registered holder hereof on the
Debenture Register of the Company, upon surrender of this Debenture for
registration of transfer at the office or agency of the Trustee accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company or the Trustee duly executed by the registered holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Debentures of
authorized denominations and for the same aggregate principal amount shall be
issued to the designated transferee or transferees. No service charge shall be
made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
A-6
Prior to due presentment for registration of transfer of this Debenture,
the Company, the Trustee, any paying agent and the Debenture Registrar may deem
and treat the registered holder hereof as the absolute owner hereof (whether or
not this Debenture shall be overdue and notwithstanding any notice of ownership
or writing hereon made by anyone other than the Debenture Registrar) for the
purpose of receiving payment of or on account of the principal hereof and
interest due hereon and for all other purposes, and neither the Company nor the
Trustee nor any paying agent nor any Debenture Registrar shall be affected by
any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
The Debentures are issuable only in registered form without coupons in
denominations of $25 and any integral multiple thereof.
All terms used in this Debenture that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
A-7
EXHIBIT 4.8
FIRST MERCHANTS CORPORATION
8.75% JUNIOR SUBORDINATED DEBENTURE
DUE JUNE 30, 2032
No. 1 $47,680,425
CUSIP No. 320817AA7
First Merchants Corporation, an Indiana corporation (the "Company," which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to, Wachovia Trust Company,
National Association, as Property Trustee for First Merchants Capital Trust I
under its Amended and Restated Trust Agreement, dated April 17, 2002, or
registered assigns, the principal sum of Forty-Seven Million Six Hundred Eighty
Thousand Four Hundred Twenty-Five Dollars($47,680,425) on June 30, 2032 (the
"Stated Maturity"), and to pay interest on said principal sum from April 17,
2002 or from the most recent interest payment date (each such date, an "Interest
Payment Date") to which interest has been paid or duly provided for, quarterly
(subject to deferral as set forth herein) in arrears on the last day of March,
June, September and December of each year commencing June 30, 2002, at the rate
of 8.75% per annum until the principal hereof shall have become due and payable,
and on any overdue principal and (without duplication and to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the same rate per annum compounded quarterly. The
amount of interest payable on any Interest Payment Date shall be computed on the
basis of a 360-day year of twelve 30-day months. The amount of interest for any
partial period shall be computed on the basis of the number of days elapsed in a
360-day year of twelve 30-day months. In the event that any date on which
interest is payable on this Debenture is not a business day, then payment of
interest payable on such date shall be made on the next succeeding day that is a
business day (and without any interest or other payment in respect of any such
delay) except that, if such business day is in the next succeeding calendar
year, payment of such interest will be made on the immediately preceding
business day, in each case, with the same force and effect as if made on such
date. The interest installment so payable, and punctually paid or duly provided
for, on any Interest Payment Date shall, as provided in the Indenture, be paid
to the person in whose name this Debenture (or one or more Predecessor
Debentures, as defined in said Indenture) is registered at the close of business
on the regular record date for such interest installment, which shall be the
close of business on the business day next preceding such Interest Payment Date
unless otherwise provided in the Indenture. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered holders on such regular record date and may be paid to the Person in
whose name this Debenture (or one or more Predecessor Debentures) is registered
at the close of business on a special record date to be fixed by the Trustee for
the payment of such defaulted interest, notice thereof shall be fixed by the
Trustee for the payment of such defaulted interest, notice thereof shall be
given to the registered holders of the Debentures not less than 10 days prior to
such special record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange or quotation
system on or in which the Debentures may be listed or quoted, and upon such
notice as may be required by such exchange, all as more fully provided in the
Indenture. The principal of and the interest on this Debenture shall be payable
at the office or agency of the Trustee maintained for that purpose in any coin
or currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Company by check mailed to the
registered holder at such address as shall appear in the Debenture Register.
Notwithstanding the foregoing, so long as the holder of this Debenture is the
Property Trustee, the payment of the principal of and interest on this Debenture
shall be made at such place and to such account as may be designated by the
Trustee.
The Stated Maturity may be shortened at any time by the Company to any date
not earlier than June 30, 2007, subject to the Company having received prior
approval of the Federal Reserve if then required under applicable capital
guidelines, policies or regulations of the Federal Reserve.
The indebtedness evidenced by this Debenture is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Indebtedness, and this Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each holder of this Debenture,
by accepting the same, (a) agrees to and shall be bound by such provisions; (b)
authorizes and directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the subordination
so provided; and (c) appoints the Trustee his or her attorney-in-fact for any
and all such purposes. Each holder hereof, by his or her acceptance hereof,
hereby waives all notice of the acceptance of the subordination provisions
contained herein and in the Indenture by each holder of Senior Indebtedness,
whether now outstanding or hereafter incurred, and waives reliance by each such
holder upon said provisions.
This Debenture shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Debenture are continued on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
[Signatures on next page.]
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Dated: April 17, 2002
FIRST MERCHANTS CORPORATION
By: /s/ Larry R. Helms
---------------------
Name: Larry R. Helms
---------------------
Title: Senior Vice President
---------------------
Attest:
By: /s/ Mark K. Hardwick
---------------------------
Name: Mark K. Hardwick
------------------------
Title: Vice President
-----------------------
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures described in the within-mentioned Indenture.
Dated: April 17, 2002
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee or Authentication Agent
By: /s/ Edward L. Truitt, Jr.
---------------------------
Name: Edward L. Truitt, Jr.
------------------------
Title: Vice President
-----------------------
[FORM OF REVERSE OF DEBENTURE]
8.75% JUNIOR SUBORDINATED DEBENTURE DUE JUNE 30, 2032
(CONTINUED)
This Debenture is one of the subordinated debentures of the Company (herein
sometimes referred to as the "Debentures"), all issued or to be issued under and
pursuant to an Indenture dated as of April 17, 2002 (the "Original Indenture")
duly executed and delivered between the Company and Wachovia Trust Company,
National Association, as Trustee (the "Trustee"), as supplemented by a First
Supplemental Indenture dated as of April 17, 2002 (the "Supplemental Indenture"
and, together with the Original Indenture, the "Indenture") duly executed and
delivered between the Company and Wachovia Trust Company, National Association,
as Trustee, to which Indenture reference is hereby made for a description of the
rights, limitations of rights, obligations, duties and immunities thereunder of
the Trustee, the Company and the holders of the Debentures. The Debentures are
limited in aggregate principal amount as specified in the Indenture.
Because of the occurrence and continuation of a Special Event (as defined
in the Indenture), in certain circumstances, this Debenture may become due and
payable at the principal amount together with any interest accrued thereon (the
"Redemption Price"). The Redemption Price shall be paid prior to 12:00 noon,
Eastern Standard Time, on the date of such redemption or at such earlier time as
the Company determines. The Company shall have the right as set forth in the
Indenture to redeem this Debenture at the option of the Company, without premium
or penalty, in whole or in part at any time on or after June 30, 2007 (an
"Optional Redemption"), or at any time in certain circumstances upon the
occurrence of a Special Event, at a Redemption Price equal to 100% of the
principal amount hereof plus any accrued but unpaid interest hereon, to the date
of such redemption. Any redemption pursuant to this paragraph shall be made upon
not less than 30 days nor more than 60 days notice, at the Redemption Price. The
Redemption Price shall be paid at the time and in the manner provided therefor
in the Indenture. If the Debentures are only partially redeemed by the Company
pursuant to an Optional Redemption, the Debentures shall be redeemed pro rata or
by lot or by any other method utilized by the Trustee as described in the
Indenture.
In the event of redemption of this Debenture in part only, a new Debenture
or Debentures for the unredeemed portion hereof shall be issued in the name of
the holder hereof upon the cancellation hereof.
In case an Event of Default (as defined in the Indenture) shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than a majority in aggregate
principal amount of the Debentures at the time Outstanding (as defined in the
Indenture) to execute supplemental indentures for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or of modifying in any manner the
rights of the
holders of the Debentures; provided, however, that no such supplemental
indenture shall (i) extend the fixed maturity of the Debentures except as
provided in the Indenture, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, without the consent of
the holder of each Debenture so affected; or (ii) reduce the aforesaid
percentage of Debentures, the holders of which are required to consent to any
such supplemental indenture, without the consent of the holders of each
Debenture then Outstanding and affected thereby. The Indenture also contains
provisions permitting the holders of a majority in aggregate principal amount of
the Debentures at the time Outstanding, on behalf of all of the holders of the
Debentures, to waive any past default in the performance of any of the covenants
contained in the Indenture, or established pursuant to the Indenture, and its
consequences, except a default in the payment of the principal of or interest on
any of the Debentures. Any such consent or waiver by the registered holder of
this Debenture (unless revoked as provided in the Indenture) shall be conclusive
and binding upon such holder and upon all future holders and owners of this
Debenture and of any Debenture issued in exchange herefor or in place hereof
(whether by registration of transfer or otherwise), irrespective of whether or
not any notation of such consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal and interest on this Debenture
at the time and place and at the rate and in the money herein prescribed.
Provided certain conditions are met, the Company shall have the right at
any time during the term of the Debentures and from time to time to extend the
interest payment period of such Debentures for up to 20 consecutive quarters
(each, an "Extended Interest Payment Period"), at the end of which period the
Company shall pay all interest then accrued and unpaid (together with interest
thereon at the rate specified for the Debentures to the extent that payment of
such interest is enforceable under applicable law). Before the termination of
any such Extended Interest Payment Period, so long as no Event of Default shall
have occurred and be continuing, the Company may further extend such Extended
Interest Payment Period, provided that such Extended Interest Payment Period
together with all such further extensions thereof shall not exceed 20
consecutive quarters, extend beyond the Stated Maturity or end on a date other
than an Interest Payment Date. At the termination of any such Extended Interest
Payment Period and upon the payment of all accrued and unpaid interest and any
additional amounts then due and subject to the foregoing conditions, the Company
may commence a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations therein set
forth, this Debenture is transferable by the registered holder hereof on the
Debenture Register of the Company, upon surrender of this Debenture for
registration of transfer at the office or agency of the Trustee accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company or the Trustee duly executed by the registered holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Debentures of
authorized denominations and for the same aggregate principal amount shall be
issued to the designated transferee or transferees. No service charge shall be
made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this Debenture,
the Company, the Trustee, any paying agent and the Debenture Registrar may deem
and treat the registered holder hereof as the absolute owner hereof (whether or
not this Debenture shall be overdue and notwithstanding any notice of ownership
or writing hereon made by anyone other than the Debenture Registrar) for the
purpose of receiving payment of or on account of the principal hereof and
interest due hereon and for all other purposes, and neither the Company nor the
Trustee nor any paying agent nor any Debenture Registrar shall be affected by
any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
The Debentures are issuable only in registered form without coupons in
denominations of $25 and any integral multiple thereof.
All terms used in this Debenture that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.