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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 22, 1999
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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OLD NATIONAL BANCORP ONB CAPITAL TRUST I
(Exact Name of Registrant as Specified in its ONB CAPITAL TRUST II
Charter) ONB CAPITAL TRUST III
ONB CAPITAL TRUST IV
(Exact Name Of Each Registrant As Specified
in its Charter)
INDIANA DELAWARE
(State or other jurisdiction of incorporation (State or other jurisdiction of incorporation
or or
organization of registrant) organization of each registrant)
33-1539838 35-6687059
(I.R.S. Employer Identification Number) 35-6687058
35-6687057
35-6687056
(I.R.S. Employer Identification Number)
420 Main Street 420 Main Street
Evansville, Indiana 47708 Evansville, Indiana 47708
(812) 464-1434 (812) 464-1434
(Address, including zip code, and telephone (Address, including zip code, and telephone
number, including area code of number, including area code
registrant's principal executive offices) of registrant's principal executive offices)
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JEFFREY L. KNIGHT, ESQ.
Corporate Secretary and General Counsel
Old National Bancorp
420 Main Street
Evansville, Indiana 47708
(812) 464-1434
(Name, address, including zip code, and telephone
number, area code, of agent for service)
With copies to:
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TIMOTHY M. HARDEN KENNETH L. BACHMAN
Krieg DeVault Alexander & Capehart, LLP Cleary, Gottlieb, Steen & Hamilton
2800 One Indiana Square 2000 Pennsylvania Avenue, N.W.
Indianapolis, IN 46204-2017 Washington, D.C. 20006
(317) 636-4341 (202) 974-1500
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
(Continued on following page)
<PAGE> 2
(Continued from previous page)
If this form is filed to register additional securities for an offering
pursuant to rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF EACH MAXIMUM MAXIMUM AMOUNT OF
CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE FEE
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Junior Subordinated Debentures of
Old National Bancorp (2).......... $200,000,000 $200,000,000 N/A
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Capital Securities of ONB Capital
Trust I, ONB Capital Trust II, ONB
Capital Trust III and ONB Capital
Trust IV.......................... $200,000,000 $200,000,000 $55,600
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Old National Bancorp Guarantees with
respect to Capital Securities (3)
(4)............................... N/A N/A N/A N/A
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Total............................... $200,000,000(5) 100% $200,000,000(5) $55,600
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(1) Estimated solely for the purpose of computing the registration fee.
(2) The Junior Subordinated Debentures will be purchased by ONB Capital Trust I,
ONB Capital Trust II, ONB Capital Trust III and ONB Capital Trust IV with
the proceeds of the sale of the Capital Securities.
(3) No separate consideration will be received for Old National Bancorp
Guarantees.
(4) This Registration Statement is deemed to cover the Junior Subordinated
Debentures of Old National Bancorp, the rights of holders of Junior
Subordinated Debentures of Old National Bancorp under the Indenture, the
rights of holders of Capital Securities of ONB Capital Trust I, ONB Capital
Trust II, ONB Capital Trust III and ONB Capital Trust IV under each Trust
Agreement, and the rights of holders of the Capital Securities under the
Guarantees, which, taken together, fully irrevocably and unconditionally
guarantee all of the respective obligations of ONB Capital Trust I, ONB
Capital Trust II, ONB Capital Trust III and ONB Capital Trust IV under the
Capital Securities.
(5) Such amount represents the principal amount of Junior Subordinated
Debentures issued at their principal amount and the issue price rather than
the principal amount of Junior Subordinated Debentures issued at an original
issue discount. Such amount also represents the initial public offering
price of the ONB Capital Trust I, ONB Capital Trust II, ONB Capital Trust
III and ONB Capital Trust IV Capital Securities.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
<PAGE> 3
The information in this prospectus supplement is not complete and may be
changed. We may not sell these securities until the registration statement filed
with the Securities and Exchange Commission is effective. This prospectus
supplement is not an offer to sell these securities and it is not soliciting an
offer to buy these securities in any state where the offer or sale is not
permitted.
SUBJECT TO COMPLETION DATED , 1999
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED , 1999)
PREFERRED SECURITIES
ONB CAPITAL TRUST I
% TRUST PREFERRED SECURITIES (TRUPS(R))
$25 LIQUIDATION AMOUNT
FULLY AND UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN, BY
OLD NATIONAL BANCORP
A brief description of the % Trust Preferred Securities (TRUPS(R)) can be
found under "Summary Information -- Q&A" in this prospectus supplement.
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Application will be made to list the % Trust Preferred Securities
(TRUPS(R)) on the New York Stock Exchange. If approved, Old National Bancorp
expects trading of the % Trust Preferred Securities (TRUPS(R)) to begin within
30 days after they are first issued.
See "Risk Factors" beginning on page S-6 to read about specific risks you
should consider before buying the Trust Preferred Securities (TRUPS(R)).
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus supplement or the accompanying prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
THESE SECURITIES ARE NOT DEPOSITS OR SAVINGS ACCOUNTS. THESE SECURITIES ARE
NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
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PER TRUST
PREFERRED SECURITY TOTAL
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Public offering price....................................... $ $
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Underwriting commissions to be paid by Old National
Bancorp................................................... See below. See below.
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Proceeds to ONB Capital Trust I............................. $ $
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Underwriting commissions of $ per % Trust Preferred Security (or
$ for all % Trust Preferred Securities (TRUPS(R))) will be paid by Old
National Bancorp; except that for sales of % Trust Preferred Securities
(TRUPS(R)) to certain institutions, the underwriting commission will be $0.50
per % Trust Preferred Security.
Old National Bancorp expects that the % Trust Preferred Securities
(TRUPS(R)) will be ready for delivery in book-entry form only through The
Depository Trust Company on or about , 1999.
"TRUPS(R)" is a registered service mark of Salomon Smith Barney Inc.
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SALOMON SMITH BARNEY
, 1999
<PAGE> 4
You should rely only on the information contained or incorporated by
reference in this prospectus supplement and the accompanying prospectus. Old
National Bancorp has not, and the underwriters have not, authorized any other
person to provide you with different information. If anyone provides you with
different or inconsistent information, you should not rely on it. Old National
Bancorp is not, and the underwriters are not, making an offer to sell these
securities in any jurisdiction where the offer or sale is not permitted. You
should assume that the information appearing in this prospectus supplement and
the accompanying prospectus is accurate as of the date on the front of this
prospectus supplement only. Old National Bancorp's business, financial
condition, results of operations and prospects may have changed since that date.
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
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PAGE
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Summary Information -- Q&A.................................. S-3
Risk Factors................................................ S-6
Use of Proceeds............................................. S-9
Selected Financial Data..................................... S-10
Recent Developments......................................... S-11
Accounting Treatment........................................ S-11
Description of Securities................................... S-12
Certain Terms of the Preferred Securities................... S-12
Certain Terms of the Junior Subordinated Debentures......... S-14
United States Federal Income Taxation....................... S-15
ERISA Considerations........................................ S-19
Underwriting................................................ S-21
Legal Matters............................................... S-22
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PROSPECTUS
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About this Prospectus....................................... 2
Forward-Looking Statements and Cautionary Factors........... 2
Where You Can Find More Information......................... 3
Old National Bancorp........................................ 4
The ONB Trusts.............................................. 5
Use of Proceeds............................................. 6
Capitalization.............................................. 7
Ratio of Earnings to Fixed Charges.......................... 7
Description of Debt Securities.............................. 7
Description of Capital Securities........................... 18
Description of Guarantees................................... 28
Relationship Among the Capital Securities, the Corresponding
Junior Subordinated Debentures and the Guarantees......... 31
Book-Entry Issuance......................................... 32
Underwriting................................................ 35
Certain Legal Matters....................................... 36
Experts..................................................... 37
</TABLE>
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SUMMARY INFORMATION-Q&A
The following information supplements, and should be read together with,
the information contained in other parts of this prospectus supplement and in
the accompanying prospectus. This summary highlights selected information from
this prospectus supplement and the accompanying prospectus to help you
understand the preferred securities. You should carefully read this prospectus
supplement and the accompanying prospectus to understand fully the terms of the
preferred securities as well as the tax and other considerations that are
important to you in making a decision about whether to invest in the preferred
securities. You should pay special attention to the "Risk Factors" section
beginning on page S-6 of this prospectus supplement to determine whether an
investment in the preferred securities is appropriate for you.
WHAT ARE THE PREFERRED SECURITIES?
Each preferred security represents an undivided beneficial interest in the
assets of ONB Capital Trust I. Each preferred security will entitle the holder
to receive quarterly cash distributions as described in this prospectus
supplement. ONB Capital Trust I is offering preferred securities at a
price of $ for each preferred security.
WHO IS ONB CAPITAL TRUST I?
ONB Capital Trust I is a Delaware business trust. Its principal place of
business is c/o Old National Bancorp, 420 Main Street, Evansville, Indiana
47708. Its telephone number is (812) 464-1434.
ONB Capital Trust I will sell its preferred securities to the public and
its common securities to Old National Bancorp ("Old National"). ONB Capital
Trust I will use the proceeds from these sales to buy from Old National a series
of % junior subordinated debentures due , 2029, with the same
financial terms as the preferred securities. Old National will guarantee
payments made on the preferred securities as described below.
Bank One Trust Company, NA will act as property trustee of ONB Capital
Trust I. Bank One Delaware, Inc. will be the Delaware trustee. Bank One Trust
Company, NA will act as trustee under the indenture pursuant to which the junior
subordinated debentures will be issued and will act as trustee under the
guarantee of Old National. The property trustee and Delaware trustee are
sometimes referred to as the issuer trustees. In addition, two officers,
employees or affiliates of Old National will act as administrators of ONB
Capital Trust I.
WHO IS OLD NATIONAL?
Old National is a multi-bank holding company organized under the laws of
Indiana. Old National currently operates 119 banking offices in Indiana,
Illinois and Kentucky. Old National also owns non-bank subsidiaries that provide
fiduciary, trust, securities brokerage, investment, insurance agency and
consumer finance services. Old National's principal office is at 420 Main
Street, Evansville, Indiana 47708. Old National's telephone number is (812)
464-1434. See "Old National Bancorp" in the accompanying prospectus.
WHEN WILL YOU RECEIVE QUARTERLY DISTRIBUTIONS?
If you purchase the preferred securities, you are entitled to receive
cumulative cash distributions at an annual rate of % of the liquidation amount
of $25 per preferred security. Distributions will accumulate from the date ONB
Capital Trust I issues the preferred securities and will be paid quarterly in
arrears on , , and of each year,
beginning , .
ONB Capital Trust I's only source of cash to make distributions on the
preferred securities is the quarterly payments ONB Capital Trust I will receive
on the junior subordinated debentures it purchases from Old National.
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WHEN CAN PAYMENT OF YOUR DISTRIBUTIONS BE DEFERRED?
So long as no event of default under the junior subordinated debentures has
occurred and is continuing, Old National may, on one or more occasions, defer
interest payments on the junior subordinated debentures for up to 20 consecutive
quarterly periods. A deferral of interest payments cannot extend, however,
beyond the maturity date of the junior subordinated debentures, which is
, 2029.
If Old National defers interest payments on the junior subordinated
debentures, ONB Capital Trust I will also defer distributions on the preferred
securities. During this deferral period, distributions will continue to accrue
on the preferred securities at an annual rate of % of the liquidation amount
of $25 per preferred security. Also, the deferred distributions will themselves
accrue interest at an annual rate of % to the extent permitted by law. Once
Old National makes all interest payments on the junior subordinated debentures,
with accrued interest, it can again defer interest payments on the junior
subordinated debentures if no event of default under the junior subordinated
debentures has occurred and is continuing.
During any period in which Old National defers interest payments on the
junior subordinated debentures, Old National will not be permitted to (with
limited exceptions):
- pay a dividend or make any distributions on its capital stock or redeem,
purchase, acquire or make a liquidation payment on any of its capital
stock, or make any guarantee payments with respect to the foregoing; or
- make an interest, principal or premium payment on, or repay, repurchase
or redeem, any of Old National's debt securities that rank equal or
junior to the junior subordinated debentures.
If Old National defers payments of interest on the junior subordinated
debentures, the preferred securities will, from the time of the deferral, be
treated as being issued with original issue discount for United States federal
income tax purposes. This means you will be required to recognize interest
income with respect to distributions and include those amounts in your gross
income for United States federal income tax purposes even though you will not
have received any cash distributions relating to that interest income. See
"United States Federal Income Taxation -- Interest Income and Original Issue
Discount."
WHEN CAN ONB CAPITAL TRUST I REDEEM THE PREFERRED SECURITIES?
ONB Capital Trust I must redeem all of the outstanding preferred securities
and common securities when the junior subordinated debentures are paid at
maturity on , 2029. In addition, if Old National redeems any junior
subordinated debentures before their maturity date, ONB Capital Trust I will use
the cash it receives from that redemption to redeem, on a pro rata basis,
preferred securities and common securities having a combined liquidation amount
equal to the principal amount of the junior subordinated debentures redeemed.
Old National can redeem some or all of the junior subordinated debentures
before their maturity at a redemption price equal to $25 per junior subordinated
debenture plus accrued and unpaid distributions to the date of redemption on one
or more occasions at any time on or after , 2004. Old National also
has the option to redeem the junior subordinated debentures, in whole, but not
in part, at any time if certain changes in tax, investment company or bank
regulatory law occur and other specified conditions are satisfied, as more fully
described under "Certain Terms of the Preferred Securities -- Redemption --
Special Event Redemption." In that case, the redemption price will be equal to
$25 per preferred security plus accrued and unpaid distributions to the date of
redemption. Prior to any redemption, Old National will obtain any required
regulatory approvals.
S-4
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WHAT IS OLD NATIONAL'S GUARANTEE OF THE PREFERRED SECURITIES?
Old National's guarantee of the distributions on the preferred securities
will be based on:
- its obligations to make payments on the junior subordinated debentures;
- its obligations under the guarantee; and
- its obligations under the trust agreement of ONB Capital Trust I.
Old National has irrevocably guaranteed that if a payment on the junior
subordinated debentures is made to ONB Capital Trust I but, for any reason, ONB
Capital Trust I does not make the corresponding distribution or redemption
payment to the holders of the preferred securities, then Old National will make
the payments directly to the holders of the preferred securities. To avoid a
double payment to a holder of the preferred securities, if Old National makes a
payment under the guarantee, the holder will no longer have a right to receive
the corresponding payment from ONB Capital Trust I.
The payment of distributions on the preferred securities is guaranteed by
Old National under the guarantee only to the extent ONB Capital Trust I has
funds legally and immediately available to make distributions.
Old National's obligations under the guarantee are subordinated as
described on page 33 of the accompanying prospectus.
WHEN COULD THE JUNIOR SUBORDINATED DEBENTURES BE DISTRIBUTED TO YOU?
Old National has the right to terminate ONB Capital Trust I at any time. If
Old National terminates ONB Capital Trust I, ONB Capital Trust I will liquidate
(after satisfaction of any liabilities to creditors of ONB Capital Trust I as
provided by applicable law) by distributing the junior subordinated debentures
to holders of the preferred securities and the common securities on a pro rata
basis. If the junior subordinated debentures are distributed, Old National will
use its best efforts to list the junior subordinated debentures on the New York
Stock Exchange (or any other exchange on which the preferred securities are then
listed) in place of the preferred securities.
WILL THE PREFERRED SECURITIES BE LISTED ON A STOCK EXCHANGE?
Application will be made to list the preferred securities on the New York
Stock Exchange. If approved, trading of the preferred securities is expected to
begin within 30 days after they are first issued.
WILL HOLDERS OF THE PREFERRED SECURITIES HAVE ANY VOTING RIGHTS?
Generally, the holders of the preferred securities will not have any voting
rights. See "Description Of The Capital Securities -- Voting Rights; Amendment
of Each Trust Agreement" in the accompanying prospectus.
IN WHAT FORM WILL THE PREFERRED SECURITIES BE ISSUED?
The preferred securities will be represented by one or more global
securities that will be deposited with and registered in the name of The
Depository Trust Company ("DTC") or its nominee. This means that you will not
receive a certificate for your preferred securities and that your broker will
maintain your position in the preferred securities. Old National expects that
the preferred securities will be ready for delivery through DTC on or about
, 1999.
S-5
<PAGE> 8
RISK FACTORS
Your investment in the preferred securities will involve certain risks. You
should carefully consider the following discussion of risks, and the other
information in this prospectus supplement and the accompanying prospectus
(including documents incorporated by reference in the prospectus), before
deciding whether an investment in the preferred securities is suitable for you.
OLD NATIONAL'S OBLIGATIONS UNDER THE JUNIOR SUBORDINATED DEBENTURES AND THE
GUARANTEE ARE DEEPLY SUBORDINATED.
Old National's obligations under the junior subordinated debentures are
unsecured and will rank junior in priority of payment to all of Old National's
Senior Debt as described on page 10 of the accompanying prospectus. Old
National's obligations under the guarantee will rank in priority of payment as
follows:
- subordinate and junior in right of payment to all its other liabilities
(except those that rank equally with or subordinate to the junior
subordinated debentures by their terms);
- equally with all other guarantees relating to preferred securities issued
by any ONB Trust (as described in the accompanying prospectus), if any
are issued; and
- senior to its common stock.
This means that Old National cannot make any payments on the junior
subordinated debentures or the guarantee if it defaults on a payment of Senior
Debt and does not cure the default within the applicable grace period or if the
Senior Debt becomes immediately due because of a default and has not yet been
paid in full. In addition, in the event of the bankruptcy, liquidation or
termination of Old National, its assets would be available to pay obligations
under the guarantee only after Old National made all payments on its Senior
Debt.
Because Old National is a holding company, dividends and fees from
subsidiaries are Old National's principal source of revenues from which to repay
the junior subordinated debentures. Old National's subsidiaries engaged in the
banking, insurance or securities business can only pay dividends if they are in
compliance with applicable U.S. federal and state regulatory requirements. Old
National's right to participate in any asset distribution of any of its
subsidiaries, on liquidation, reorganization or otherwise, will rank junior to
the rights of all creditors of that subsidiary (except to the extent that Old
National may itself be a creditor of that subsidiary). The rights of holders of
the preferred securities or junior subordinated debentures to benefit from those
distributions will also be junior to those prior claims. Consequently, the
junior subordinated debentures (and, therefore, the preferred securities) will
be effectively subordinated to all liabilities of Old National's subsidiaries.
You should look only to the assets of Old National for payments on the junior
subordinated debentures and, consequently, the preferred securities.
At June 30, 1999, Old National had total liabilities of approximately $6.4
billion, all of which effectively ranks senior to the junior subordinated
debentures.
None of the preferred securities, the junior subordinated debentures nor
the guarantee limit the ability of Old National or its subsidiaries to incur
additional debts, including debts that rank senior in priority of payment to the
junior subordinated debentures and the guarantee. See "Description of
Guarantees -- Status of the Guarantees" and "Description of the Debt Securities"
in the accompanying prospectus.
THE GUARANTEE ONLY COVERS PAYMENTS IF ONB CAPITAL TRUST I HAS CASH AVAILABLE,
BUT YOU MAY SUE OLD NATIONAL DIRECTLY.
The ability of ONB Capital Trust I to pay scheduled distributions on the
preferred securities, the redemption price of the preferred securities and the
liquidation amount of each preferred security is solely
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<PAGE> 9
dependent upon Old National making the related payments on the junior
subordinated debentures when due.
If Old National defaults on its obligations to pay principal or interest on
the junior subordinated debentures, ONB Capital Trust I will not have sufficient
funds to pay distributions, the redemption price or the liquidation amount of
each preferred security. In those circumstances, you will not be able to rely
upon the guarantee for payment of these amounts.
Instead, you:
- may directly sue Old National or seek other remedies to collect your pro
rata share of payments owed; or
- may rely on the property trustee to enforce ONB Capital Trust I's rights
against Old National under the junior subordinated debentures.
DEFERRAL OF DISTRIBUTIONS WOULD HAVE TAX CONSEQUENCES FOR YOU AND MAY AFFECT THE
TRADING PRICE OF THE PREFERRED SECURITIES.
So long as no event of default under the junior subordinated debentures has
occurred and is continuing, Old National may, on one or more occasions, defer
interest payments on the junior subordinated debentures for up to 20 consecutive
quarterly periods. If Old National defers interest payments on the junior
subordinated debentures, ONB Capital Trust I will defer distributions on the
preferred securities during any deferral period. However, distributions would
still accumulate and the deferred distributions would themselves accrue interest
at the rate of % per annum, to the extent permitted by law.
If Old National defers interest payments on the junior subordinated
debentures, you will be required to recognize interest income in your gross
income for United States federal income tax purposes in the form of original
issue discount, based on your pro rata share of the accrued interest on the
junior subordinated debentures held by ONB Capital Trust I, before you receive
any cash relating to that interest. In addition, you will not receive the cash
if you sell the preferred securities before the end of any deferral period or
before the record date relating to distributions that are paid.
Old National has no current intention of deferring interest payments on the
junior subordinated debentures. However, if Old National exercises its deferral
right in the future, the preferred securities may trade at a price that does not
fully reflect the value of accrued but unpaid interest on the junior
subordinated debentures. If you sell the preferred securities during an interest
deferral period, you may not receive the same return on investment as someone
else who continues to hold the preferred securities. In addition, the existence
of Old National's right to defer payments of interest on the junior subordinated
debentures may mean that the market price for the preferred securities (which
represent an undivided beneficial interest in ONB Capital Trust I, substantially
all of the assets of which consist of the junior subordinated debentures) may be
more volatile than other securities that do not have these rights.
See "United States Taxation" for more information regarding the tax
consequences of purchasing, holding and selling the preferred securities.
YOU SHOULD NOT RELY ON DISTRIBUTIONS FROM THE PREFERRED SECURITIES THROUGH THE
MATURITY DATE OF THE JUNIOR SUBORDINATED DEBENTURES -- THE JUNIOR SUBORDINATED
DEBENTURES, AND CONSEQUENTLY, THE PREFERRED SECURITIES, MAY BE REDEEMED AT ANY
TIME IF SPECIFIED CHANGES IN TAX, INVESTMENT COMPANY OR BANK REGULATORY LAW
OCCUR.
If certain changes in tax, investment company or bank regulatory law occur
and are continuing, and other conditions are satisfied, the junior subordinated
debentures may be redeemed by Old National, in whole but not in part, at any
time within 90 days of the event at a redemption price equal to $25 per junior
subordinated debenture plus any accrued and unpaid interest payments to the
redemption date. Any such redemption will cause a mandatory redemption of
preferred securities and common securities having
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<PAGE> 10
an aggregate liquidation amount equal to the aggregate principal amount of the
junior subordinated debentures redeemed. Prior to any such redemption, Old
National will obtain any required regulatory approvals. See "Description of Debt
Securities -- Certain Provisions Relating to the Junior Subordinated Debentures
Issued to the ONB Trusts -- Redemption" and "Description of Preferred
Securities -- Redemption or Exchange" in the accompanying prospectus.
YOU SHOULD NOT RELY ON DISTRIBUTIONS FROM THE PREFERRED SECURITIES THROUGH THE
MATURITY DATE OF THE JUNIOR SUBORDINATED DEBENTURES -- THE JUNIOR SUBORDINATED
DEBENTURES AND, CONSEQUENTLY, THE PREFERRED SECURITIES, MAY BE REDEEMED AT THE
OPTION OF OLD NATIONAL AS EARLY AS FIVE YEARS AFTER ISSUANCE.
At the option of Old National, on or after , 2004, the junior
subordinated debentures may be redeemed, in whole, at any time, or in part, from
time to time, at a redemption price equal to $25 per junior subordinated
debenture plus any accrued and unpaid interest payments to the redemption date.
See "Certain Terms of the Junior Subordinated Debentures -- Redemption." Prior
to any such redemption, Old National will obtain any required regulatory
approvals. You should assume that Old National will exercise its redemption
option if Old National is able to refinance at a lower interest rate or it is
otherwise in Old National's interest to redeem the junior subordinated
debentures. If the junior subordinated debentures are redeemed, ONB Capital
Trust I must redeem the preferred securities and the common securities having an
aggregate liquidation amount equal to the aggregate principal amount of junior
subordinated debentures redeemed. See "Description of the Capital
Securities -- Redemption or Exchange" in the accompanying prospectus.
OLD NATIONAL MAY TERMINATE ONB CAPITAL TRUST I AT ANY TIME.
Old National has the right to terminate ONB Capital Trust I at any time, so
long as it obtains any required regulatory approval. If Old National decides to
exercise its right to terminate ONB Capital Trust I, ONB Capital Trust I will
liquidate (after satisfaction of any liabilities to creditors of ONB Capital
Trust I as provided by applicable law) by distributing the junior subordinated
debentures to holders of the preferred securities and the common securities on a
pro rata basis. Under current law, such a distribution would not be a taxable
event for United States federal income tax purposes.
Old National has no current intention of causing the termination of ONB
Capital Trust I and the distribution of the junior subordinated debentures. Old
National anticipates that it would consider exercising this right in the event
that expenses associated with maintaining ONB Capital Trust I were substantially
greater than currently expected, for example if unfavorable changes in tax law
or investment company law occur. See "Description of Debt Securities -- Certain
Provisions Relating to Junior Subordinated Debentures Issued to the ONB
Trusts -- Redemption" in the accompanying prospectus. Old National cannot
predict the other circumstances under which this right would be exercised.
THERE CAN BE NO ASSURANCE AS TO THE MARKET PRICES FOR THE PREFERRED SECURITIES
OR THE JUNIOR SUBORDINATED DEBENTURES; THEREFORE, YOU MAY SUFFER A LOSS.
Old National and ONB Capital Trust I cannot give you any assurance as to
the market prices for the preferred securities or the junior subordinated
debentures distributed to you upon the termination of ONB Capital Trust I.
Accordingly, the preferred securities that an investor may purchase, whether
pursuant to the offer made by this prospectus supplement or in the secondary
market, or the junior subordinated debentures that a holder of preferred
securities would receive upon a termination of ONB Capital Trust I, may trade at
a discount to the price that the investor paid to purchase the preferred
securities offered by this prospectus supplement. As a result of Old National's
right to defer interest payments on the junior subordinated debentures, the
market price of the preferred securities (which represent undivided beneficial
ownership interests in ONB Capital Trust I, substantially all of the assets of
which consist of the junior subordinated debentures) may be more volatile than
the market prices of other securities that are not subject to similar optional
deferrals.
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<PAGE> 11
Under current United States federal income tax law, a distribution of
junior subordinated debentures to you on the termination of ONB Capital Trust I
should not be a taxable event to you. However, if ONB Capital Trust I is
characterized for United States federal income tax purposes as an association
taxable as a corporation at the time it is terminated or if there is a change in
law, the distribution of junior subordinated debentures to you may be a taxable
event to you.
THERE MAY BE NO TRADING MARKET FOR THE PREFERRED SECURITIES.
Before this offering there has been no market for the preferred securities.
Although Old National has applied to list the preferred securities on the New
York Stock Exchange, a listing does not guarantee that a trading market for the
preferred securities will develop, or, if a trading market does develop, the
depth of that market or the ability of the holders to easily sell their
preferred securities.
YOU HAVE VOTING RIGHTS ONLY UNDER LIMITED CIRCUMSTANCES.
You will have limited voting rights. In particular, subject to certain
exceptions, only Old National can appoint or remove any of the issuer trustees.
See "Description of the Capital Securities -- Voting Rights; Amendment of Each
Trust Agreement" in the accompanying prospectus.
USE OF PROCEEDS
ONB Capital Trust I will use all of the proceeds it receives from the sale
of its preferred securities and common securities to purchase junior
subordinated debentures from Old National. Old National intends to use the
proceeds from the sale of the junior subordinated debt securities to ONB Capital
Trust I for repurchases of its common stock in connection with its announced
stock repurchase program, repayment of debt and general corporate purposes,
including possible future acquisitions. Old National may temporarily invest any
funds not required immediately for those purposes in short-term marketable
securities.
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<PAGE> 12
SELECTED FINANCIAL DATA
SUMMARY FINANCIAL DATA
The following financial data are derived from the consolidated financial
statements of Old National. This information should be read in conjunction with,
and is qualified by reference to, the more detailed information contained in the
consolidated financial statements and the accompanying notes thereto
incorporated by reference in this prospectus. See "Where You Can Find More
Information" in the accompanying prospectus.
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
----------------------- --------------------------------------------------------------
1999 1998 1998(1) 1997(1) 1996(1) 1995(1) 1994(1)
---------- ---------- ---------- ---------- ---------- ---------- ----------
(IN THOUSANDS OF DOLLARS, EXCEPT FOR PER SHARE AND RATIO DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
RESULTS OF OPERATIONS:
Interest income...................... $ 245,045 $ 231,344 $ 470,915 $ 448,875 $ 419,483 $ 402,792 $ 353,983
Interest expense..................... 119,200 112,776 231,613 216,868 196,289 191,835 149,809
---------- ---------- ---------- ---------- ---------- ---------- ----------
Net interest income.................. 125,845 118,568 239,302 232,007 223,194 210,957 204,174
Provision for loan losses............ 5,697 6,253 12,160 13,562 11,082 7,491 7,886
---------- ---------- ---------- ---------- ---------- ---------- ----------
Net interest income after provision
for loan losses.................... 120,148 112,315 227,142 218,445 212,112 203,466 196,288
Noninterest income................... 33,457 28,147 59,905 52,267 48,680 42,044 36,680
Noninterest expense.................. 89,105 81,400 168,952 159,793 157,997 153,345 152,093
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income before income taxes........... 64,500 59,062 118,095 110,919 102,795 92,165 80,875
Income taxes......................... 23,238 22,911 43,960 42,836 40,108 35,222 29,550
---------- ---------- ---------- ---------- ---------- ---------- ----------
Net income from continuing
operation.......................... 41,262 36,151 74,135 68,083 62,687 56,943 51,325
Discontinued operations.............. 3,483 (9,854) (9,854) (5,005) 494 0 --
---------- ---------- ---------- ---------- ---------- ---------- ----------
Net income........................... $ 44,745 $ 26,297 $ 64,281 $ 63,078 $ 63,181 $ 56,943 $ 51,325
========== ========== ========== ========== ========== ========== ==========
YEAR-END BALANCES
Total assets......................... $6,898,420 $6,225,336 $6,416,611 $5,933,321 $5,602,460 $5,281,387 $5,081,088
Investment securities................ 1,778,328 1,639,980 1,636,674 1,606,930 1,573,708 1,481,267 1,419,378
Loans, net of unearned income........ 4,676,619 4,090,553 4,354,256 3,915,841 3,627,592 3,375,915 3,205,096
Deposits............................. 4,804,255 4,623,605 4,668,858 4,521,010 4,479,357 4,336,372 4,028,932
Shareholders' equity................. 529,286 510,107 519,645 500,609 480,405 481,511 457,971
PER SHARE DATA (on continuing
operations)(2)
Net income-basic..................... $ 0.46 $ 0.78 $ 1.61 $ 1.47 $ 1.31 $ 1.17 $ 1.02
Net income-diluted(3)................ 0.45 0.76 1.57 1.43 1.28 1.13 0.99
Cash dividends paid.................. 0.32 0.29 0.58 0.56 0.53 0.51 0.48
Dividend payout...................... 35.96 37.18 36.02 38.10 40.46 43.59 47.06
Book value at year-end............... 11.47 11.07 11.40 10.93 10.26 9.90 9.15
SELECTED PERFORMANCE RATIOS (on
continuing operations)
Return on assets..................... 1.25% 1.21% 1.21% 1.19% 1.17% 1.11% 1.04%
Return on equity(4).................. 16.01 14.78 14.95 14.28 13.23 12.26 11.13
Net interest margin.................. 4.06 4.26 4.17 4.31 4.43 4.38 4.38
Efficiency ratio(5).................. 55.23 55.48 56.22 56.21 58.11 60.61 63.15
Total shareholders' equity to total
assets............................. 7.67% 8.19% 8.10% 8.44% 8.57% 9.12% 9.01%
Primary capital to total assets...... 7.46 7.93 7.86 8.15 8.26 8.81 8.67
Tier 1 capital to risk adjusted
assets............................. 11.47 11.88 11.40 12.15 14.97 13.92 14.20
Tier 1 capital to quarterly average
assets............................. 7.78 7.84 7.94 8.14 8.50 8.83 9.13
End of period allowance for loan
losses to end of period loans...... 1.20% 1.26% 1.19% 1.25% 1.20% 1.27% 1.36%
Net charge-offs to average loans..... 0.10 0.19 0.23 0.21 0.30 0.25 0.28
Non-performing loans to total
loans.............................. 0.38 0.38 0.45 0.39 0.46 0.31 0.39
</TABLE>
- ---------------
(1) Restated to reflect the acquisition of Southern Bancshares, Ltd.
(2) Restated for all stock dividends.
(3) Assumes the conversion of ONB's subordinated debentures.
(4) Excludes unrealized gains (losses) on investment securities.
(5) Excludes security gains (losses) and expenses related to the one bank
program. See "Recent Developments -- One Bank."
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<PAGE> 13
RECENT DEVELOPMENTS
FINANCIAL RESULTS
For the quarter ended June 30, 1999, Old National reported income from
continuing operations of $21.25 million. The results for the quarter represent a
16.9% increase over the previous year's second quarter results. Income from
continuing operations for the six months ended June 30, 1999 were $41.26
million, representing an increase of 14.1% over the same period in 1998.
At June 30, 1999, Old National's assets were $6.898 billion, a 10.8%
increase since June 30, 1999, and its shareholders' equity was $529 million.
ONE BANK
On July 24, 1998, Old National announced its plan to merge its banking
subsidiaries into Old National Bank, its largest subsidiary, to improve
operational efficiencies while maintaining its emphasis on community banking.
However, Old National expects to maintain one Indiana state-chartered bank
subsidiary in order to continue to offer its customers a full range of insurance
products. Old National currently expects that by the first quarter of next year,
all of Old National's current banking offices will operate under a common name
and offer a broader range of products and services. Following the merger,
customers will have the opportunity to perform all of their banking transactions
at any of Old National's banking offices or ATM locations.
PENDING ACQUISITIONS
On July 29, 1999, Old National agreed to acquire ANB Corporation ("ANB"), a
multi-bank holding company headquartered in Muncie, Indiana, with assets of
approximately $783.7 million as of June 30, 1999. Under the terms of the
acquisition agreement, each shareholder of ANB will receive 1.25 shares of
common stock of Old National for each outstanding share of common stock of ANB
that they own. The transaction value is approximately $212.4 million based on
the market value of Old National's common stock on July 29, 1999. The closing of
this acquisition is expected to occur early next year and is subject to
shareholder and regulatory approvals and satisfaction of certain other
conditions contained in the acquisition agreement between Old National and ANB.
On September 8, 1999, Old National agreed to acquire Heritage Financial
Services, Inc. ("Heritage Financial Services"), a bank holding company
headquartered in Clarksville, Tennessee, with assets of approximately $222.8
million as of June 30, 1999. Under the terms of the acquisition agreement, each
shareholder of Heritage Financial Services will receive 3.15 shares of Old
National's common stock for each outstanding share of common stock of Heritage
Financial Services that they own. Based on the value of Old National's common
stock as of September 8, 1999, the transaction value is approximately $63.2
million. The closing of this acquisition is expected to occur early next year
and is subject to shareholder and regulatory approval and satisfaction of
certain other conditions contained in the acquisition agreement between Old
National and Heritage Financial Services.
Upon completion of the acquisition of ANB and Heritage Financial Services,
Old National's number of banking offices will increase to 148 and its number of
ATMs will increase to 207 throughout Indiana, Illinois, Kentucky, Ohio and
Tennessee.
ACCOUNTING TREATMENT
ONB Capital Trust I will be treated as a subsidiary of Old National, and
the accounts of ONB Capital Trust I will be included in its consolidated
financial statements. The preferred securities will be presented as a separate
line item in Old National's balance sheet entitled "Company or subsidiary
obligated mandatorily redeemable preferred securities of subsidiary trusts
holding solely junior subordinated debentures of company or subsidiary," and
disclosures concerning the preferred securities, the guarantee and the junior
subordinated debentures will be included in the notes to the financial
statements.
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<PAGE> 14
DESCRIPTION OF SECURITIES
This prospectus supplement discloses the specific terms and provisions of
the preferred securities and the junior subordinated debentures and supplements
the general description of the terms and provisions of these securities in the
accompanying prospectus. These summaries are not meant to be a complete
description of each security. However, this prospectus supplement and the
accompanying prospectus contain the material terms and conditions for each
security. For more information, please refer to the trust agreement, the
indenture and the guarantee. Forms of these documents are filed as exhibits to
the registration statement of which this prospectus supplement and the
accompanying prospectus are a part. All terms used in this prospectus supplement
have the meanings given to them in these documents.
CERTAIN TERMS OF THE PREFERRED SECURITIES
DISTRIBUTIONS
The preferred securities represent undivided beneficial interests in the
assets of ONB Capital Trust I. Distributions on the preferred securities are
cumulative and will accumulate from the date they are first issued at the annual
rate of % of the $25 per preferred security liquidation amount. Distributions
will be payable quarterly in arrears on , , and
of each year, beginning , . Distributions not paid
when due will themselves accumulate additional distributions, compounded
quarterly, at the annual rate of % on the amount of unpaid distributions, to
the extent permitted by law. The term "distributions" includes any of these
distributions. The amount of distributions payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months.
So long as no event of default has occurred and is continuing under the
junior subordinated debentures, Old National may, at any time and from time to
time, defer interest payments on the junior subordinated debentures for up to 20
consecutive quarters. A deferral of interest payments cannot extend, however,
beyond the maturity date of the junior subordinated debentures. Before a
deferral period ends, Old National may extend it if that deferral period does
not exceed 20 consecutive quarters or extend beyond the stated maturity of the
junior subordinated debentures. When a deferral period ends and Old National has
paid all accrued and unpaid interest on the junior subordinated debentures, Old
National may begin a new deferral period, subject to the terms described above.
There is no limit on the number of deferral periods that Old National may begin.
If Old National defers interest payments on the junior subordinated
debentures, ONB Capital Trust I will similarly defer quarterly distributions on
the preferred securities during the deferral period. During a deferral period
the amount of distributions due to you will continue to accumulate at the rate
stated above, and these deferred distributions will themselves accrue interest,
to the extent permitted by law.
Old National has no current intention to exercise its right to defer
interest payments on the junior subordinated debentures issued to ONB Capital
Trust I. If Old National defers interest payments on the junior subordinated
debentures, it would be subject to certain restrictions relating to the payment
of dividends on or purchases of its capital stock and payments on its debt
securities ranking equal with or junior to the junior subordinated debentures.
See "Description of Debt Securities -- Certain Provisions Relating to Junior
Subordinated Debentures Issued to the ONB Trusts -- Option to Defer Interest
Payment Date" in the accompanying prospectus.
See the accompanying prospectus for additional terms of the preferred
securities, including provisions relating to the deferral of distributions, the
payment of distributions and the subordination of the common securities.
If distributions are payable on a date that is not a business day, payment
will be made on the next business day, without any interest or other payment in
respect of the delay in payment. However, if the next business day is in the
next calendar year, payment of distributions will be made on the preceding
business day. A "business day" means each Monday, Tuesday, Wednesday, Thursday
or Friday which is
S-12
<PAGE> 15
not a day on which banking institutions in New York City are authorized or
obligated by law, regulation or executive order to close, or a day on which the
Federal Reserve Bank of New York is not open.
REDEMPTION
General. ONB Capital Trust I must redeem all of the outstanding preferred
securities when the junior subordinated debentures are paid at maturity on
, 2029. Old National can redeem the junior subordinated debentures
prior to maturity (a) in whole or in part at any time after , 2004,
or (b) in whole but not in part if a Special Event as described below has
occurred and is continuing. Prior to any such redemption, Old National will
obtain any required regulatory approval. When Old National redeems the junior
subordinated debentures, the property trustee will use the proceeds to redeem a
like amount of the preferred securities and common securities. The property
trustee will give you at least 30 days, but not more than 60 days, notice before
the redemption date. The preferred securities and (unless there is a default
under the junior subordinated debentures) common securities will be redeemed at
a price equal to the liquidation amount of $25 per security plus accrued and
unpaid distributions to the date of redemption.
If less than all of the preferred securities and common securities are
redeemed, then the aggregate liquidation amount of preferred securities and
common securities to be redeemed will be allocated 3% to the common securities
holders, subject to the exceptions as described in "Description of Capital
Securities -- Subordination of Common Securities" in the accompanying prospectus
and 97% to the holders of preferred securities. The preferred securities and
(unless there is a default under the junior subordinated debentures) common
securities to be redeemed will be selected by the property trustee by a method
determined to be fair and appropriate by it subject to the subordination
provisions of the common securities.
See the accompanying prospectus for other redemption provisions and for
redemption procedures.
Special Event Redemption. If a Tax Event, an Investment Company Event or a
Regulatory Capital Event, each as defined in the accompanying prospectus (each,
a "Special Event"), has occurred and is continuing, Old National may redeem the
junior subordinated debentures, in whole but not in part. This will cause a
mandatory redemption of the preferred securities and the common securities, in
whole but not in part, within 90 days following the occurrence of the Special
Event, at the $25 per security liquidation amount plus unpaid distributions to
the date of redemption. See "Description of Debt Securities -- Certain
Provisions Relating to the Junior Subordinated Debentures Issued to the ONB
Trusts -- Redemption" in the accompanying prospectus.
However, in the case of an occurrence of a Special Event, if Old National
can eliminate, within the 90 day period, the Special Event by taking some
action, such as filing a form or making an election, or pursuing some other
similar reasonable measure which has no adverse effect on Old National, ONB
Capital Trust I or the holders of the preferred securities or the common
securities, Old National will pursue that action instead of redemption. Old
National will have no right to redeem the junior subordinated debentures while
ONB Capital Trust I or the property trustee is pursuing any similar action based
on its obligations under the trust agreement.
If a Tax Event is continuing and Old National does not redeem the junior
subordinated debentures or liquidate ONB Capital Trust I, Old National will pay
additional amounts, if any, to the holders of the junior subordinated debentures
so that, notwithstanding any additional taxes, duties or charges imposed on ONB
Capital Trust I because of the Tax Event, ONB Capital Trust I will have
sufficient funds to pay the full amount of distributions due on the outstanding
preferred securities. For a discussion of other additional amounts that Old
National will pay to ONB Capital Trust I, see "Description of Capital
Securities -- Additional Amounts" in the accompanying prospectus.
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<PAGE> 16
CERTAIN TERMS OF THE JUNIOR SUBORDINATED DEBENTURES
ONB Capital Trust I will use the proceeds of the issuance of the preferred
securities and the common securities to purchase junior subordinated debentures
issued by Old National. Old National will issue junior subordinated debentures
to ONB Capital Trust I in an aggregate principal amount of $ . The junior
subordinated debentures will be issued as a series pursuant to a securities
resolution dated as of , 1999, under the indenture. The junior
subordinated debentures will be unsecured and will rank subordinate and junior
in right of payment to all of the Senior Debt.
INTEREST RATE AND MATURITY
The junior subordinated debentures will mature on , 2029, and
will bear interest at the annual rate of % of the principal amount thereof,
payable quarterly in arrears on , , and
of each year, beginning , . Interest payments not paid when
due will themselves accrue additional interest compounded quarterly at the
annual rate of % on the amount of unpaid interest to the extent permitted by
law. The term "interest payments" includes this additional interest. The amount
of interest payable for any period will be computed based on a 360-day year of
twelve 30-day months. The interest payment provisions for the junior
subordinated debentures correspond to the distribution provisions of the
preferred securities.
So long as no event of default has occurred and is continuing under the
junior subordinated debentures, Old National may, at any time and from time to
time, defer interest payments on the junior subordinated debentures for up to 20
consecutive quarters. A deferral of interest payments cannot extend, however,
beyond the maturity date of the junior subordinated debentures. Before a
deferral period ends, Old National may extend it if that deferral period does
not exceed 20 consecutive quarters or extend beyond the stated maturity of the
junior subordinated debentures. When a deferral period ends and Old National has
paid all accrued and unpaid interest on the junior subordinated debentures, Old
National may begin a new deferral period, subject to the terms described above.
There is no limit on the number of deferral periods that Old National may begin.
Old National has no current intention to exercise its right to defer
interest payments on the junior subordinated debentures issued to ONB Capital
Trust I. If Old National defers interest payments on the junior subordinated
debentures, it would be subject to certain restrictions relating to the payment
of dividends on or purchases of its capital stock and payments on its debt
securities ranking equally with or junior to the junior subordinated debentures.
See "Description of Debt Securities -- Certain Provisions Relating to Junior
Subordinated Debentures Issued to the ONB Trusts -- Option to Defer Interest
Payment Date" in the accompanying prospectus.
See the accompanying prospectus for additional terms of the junior
subordinated debentures.
REDEMPTION
Old National has the option to redeem the junior subordinated debentures
prior to maturity at a redemption price equal to 100% of the principal amount
plus accrued and unpaid interest to the redemption date (a) in whole or in part
at any time on or after , 2004, or (b) in whole but not in part if a
Special Event has occurred and is continuing.
DISTRIBUTION OF JUNIOR SUBORDINATED DEBENTURES
If the property trustee distributes the junior subordinated debentures to
the holders of the preferred securities and the common securities upon the
termination and liquidation of ONB Capital Trust I, the junior subordinated
debentures will be issued in denominations of $25 and integral multiples
thereof. Old National anticipates that the junior subordinated debentures would
be distributed in the form of one or more global securities and DTC, or any
successor depositary for the preferred securities, would act as depositary for
the junior subordinated debentures. The depositary arrangements for the junior
subordinated debentures would be substantially similar to those in effect for
the preferred securities.
For a description of DTC and the terms of the depository arrangements
relating to payments, transfers, voting rights, redemption and other notices and
other matters, see "Book-Entry Issuance" in the accompanying prospectus.
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<PAGE> 17
UNITED STATES FEDERAL INCOME TAXATION
GENERAL
The following summary of U.S. federal income tax consequences material to
the purchase, ownership and disposition of the preferred securities is based on
the views of Krieg DeVault Alexander & Capehart, LLP, tax counsel to Old
National and ONB Capital Trust I. It does not purport to be a comprehensive
description of all of the tax consequences that may be relevant to a decision to
purchase preferred securities by any particular investor, including tax
consequences that arise from rules of general application to all taxpayers or to
certain classes of taxpayers or that are generally assumed to be known by
investors. This summary is based on (1) the Internal Revenue Code of 1986, as
amended (the "Code"), (2) income tax regulations issued under the Code and (3)
associated administrative and judicial interpretations, all as they currently
exist as of the date of this prospectus supplement. These income tax laws and
regulations, however, may change at any time, and any change could be
retroactive to the issuance date of the preferred securities.
These income tax laws and regulations are also subject to various
interpretations, and the Internal Revenue Service (the "IRS") or the courts
could later disagree with what Old National explains in this summary. The IRS
has not formally ruled (and Old National does not intend to seek a ruling) on
the tax consequences material to the purchase, ownership and disposition of the
preferred securities. Accordingly, the IRS could challenge the opinions
expressed in this prospectus supplement concerning such consequences, and a
court could agree with the IRS.
Except where this summary states otherwise, the summary deals only with
preferred securities held as a capital asset (as defined in section 1221 of the
Code) by a holder who (a) purchases the preferred securities at their original
offering price when ONB Capital Trust I originally issues them (an "Initial
Holder") and (b) is a U.S. Holder (as defined below).
This summary does not address, except as stated below, any of the tax
consequences to holders that are not U.S. Holders or to holders that may be
subject to special tax treatment such as banks, thrift institutions, real estate
investment trusts, regulated investment companies, insurance companies, brokers
and dealers in securities or currencies, tax-exempt investors or persons that
will hold the preferred securities as a position in a "straddle," as part of a
"hedge," or as part of a "conversion transaction" or other integrated
investment, or persons having a functional currency other than the U.S. dollar.
Further, this summary does not address:
- the United States federal income tax consequences to shareholders in, or
partners, members or beneficiaries of, a holder of the preferred
securities;
- the United States federal alternative minimum tax consequences material
to the purchase, ownership or disposition of the preferred securities; or
- any state, local or foreign tax consequences material to the purchase,
ownership or disposition of the preferred securities.
A "U.S. Holder" is a preferred securities holder who or which is:
- a United States citizen or resident individual (or someone treated as a
citizen or resident individual for United States federal income tax
purposes);
- a corporation (including an entity treated as a corporation for United
States federal income tax purposes) created or organized (or treated as
created or organized) in or under the laws of the United States or any
state or other political subdivision thereof;
- any other person that is subject to United States federal income taxation
on a net income basis in respect of the investment in the preferred
securities.
A "Non-U.S. Holder" is a preferred securities holder that is a nonresident
alien or a foreign corporation.
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<PAGE> 18
CHARACTERIZATION OF THE JUNIOR SUBORDINATED DEBENTURES AND ONB CAPITAL TRUST I
In connection with the issuance of the junior subordinated debentures,
Krieg DeVault Alexander & Capehart, LLP, tax counsel to Old National and ONB
Capital Trust I, will render its opinion that, under then current law, and
assuming full compliance with the terms of the trust agreement, the underwriting
agreement governing the sale of the preferred securities by Old National to the
underwriters and the indenture (and other relevant documents), and based on
certain facts and assumptions contained in such opinion, the junior subordinated
debentures will be classified for United States federal income tax purposes as
indebtedness of Old National. By acceptance of a preferred security, you agree
to treat the junior subordinated debentures as indebtedness and the preferred
securities as an undivided beneficial ownership interest in the junior
subordinated debentures.
In connection with the issuance of the preferred securities, Krieg DeVault
Alexander & Capehart, LLP will render its opinion that, under current law and
assuming full compliance with the terms of the trust agreement, the underwriting
agreement governing the sale of the preferred securities by Old National to the
underwriters and the indenture (and other relevant documents), and based on
certain facts and assumptions contained in such opinion, ONB Capital Trust I
will be characterized for United States federal income tax purposes as a grantor
trust and not as an association that is taxable as a corporation. Accordingly,
for United States federal income tax purposes, you will be considered the owner
of an undivided beneficial ownership interest in the junior subordinated
debentures, and you will be required to include in your gross income any
interest (or original issue discount accrued) with respect to your allocable
share of those junior subordinated debentures. See "-- Interest Income and
Original Issue Discount," below.
INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT
Under applicable income tax regulations, if there is only a remote
likelihood that a company will not make its interest payments on time, then the
debt will be considered to be issued without original issue discount ("OID").
Old National believes that the likelihood that it will exercise its option to
defer interest payments is remote, since this would prevent Old National from
declaring dividends on any of its capital stock or making payments on its debt
securities that rank equal with or junior to the junior subordinated debentures
until it paid in full all of the missed interest payments. Accordingly, Old
National will take the position that the junior subordinated debentures will not
be issued with OID. Under this approach, the interest payments on the junior
subordinated debentures (which are used to make distributions on the preferred
securities) generally will be taxable to you as ordinary income when they are
paid or accrued depending on your method of United States federal income tax
accounting.
If, however, the possibility that Old National would exercise its option to
defer payments of interest were determined not to be "remote," or if Old
National were to exercise its option to defer payments of interest, the junior
subordinated debentures would be treated as issued with OID at the time of
issuance, or as re-issued with OID at the time of such exercise, as the case may
be, and all stated interest on the junior subordinated debentures would
thereafter be treated as OID as long as the junior subordinated debentures
remained outstanding. In that case, all of your taxable interest income with
respect to the junior subordinated debentures would have to be accounted for as
OID using a constant yield method regardless of your method of United States
federal income tax accounting, and actual distributions of stated interest would
not be reported as taxable income. Consequently, you would be required to
include OID in your gross income even though Old National would not make any
actual cash payments during the deferral period.
The IRS has not issued any rulings or interpretations that define the
meaning of the term "remote" as used in the applicable income tax regulations.
The IRS could take a position that differs from what is stated in this
prospectus supplement.
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<PAGE> 19
CORPORATE U.S. HOLDERS
Because the income from the preferred securities will not be considered to
be dividends for United States federal income tax purposes, corporate U.S.
Holders of the preferred securities will not be entitled to a dividends-received
deduction for any income from the preferred securities.
MARKET DISCOUNT AND ACQUISITION PREMIUM
Holders of the preferred securities other than Initial Holders may be
considered to have acquired their undivided interests in the junior subordinated
debentures with "market discount" or "acquisition premium" (as each phrase is
defined for United States federal income tax purposes). Such holders are urged
to consult with their own tax advisors concerning the tax consequences of
purchasing, owning and selling the preferred securities.
SALES OF PREFERRED SECURITIES
If you sell your preferred securities, you will recognize a gain or loss
equal to the difference between the amount realized from the sale of the
preferred securities (generally, your selling price minus any portion
attributable to accrued but unpaid interest not otherwise includible as OID) and
your adjusted tax basis in the preferred securities. If Old National does not
defer interest on the junior subordinated debentures and the debentures are not
treated as issued with OID, your adjusted tax basis in the preferred securities
generally will equal the initial purchase price that you paid for the preferred
securities. If, however, Old National elects to defer interest payments on the
junior subordinated debentures, or if the debentures were treated as issued with
OID, your adjusted tax basis in the preferred securities generally will equal
(1) the initial purchase price that you paid for the preferred securities plus
(2) any OID accrued to the date of disposition, less (3) all distributions since
and including the date of the first deferral period or the date or issuance, as
the case may be.
Except to the extent of any accrued market discount, a gain or loss on the
sale of preferred securities generally will be a capital gain or loss if the
preferred securities are held as capital assets. With certain exceptions, the
maximum regular United States federal income tax rate on capital gains for
individual taxpayers is currently 20% for sales and exchanges of capital assets
held for more than one year. Subject to certain limited exceptions, capital
losses cannot be applied to offset ordinary income for United States federal
income tax purposes.
If you use the accrual method of accounting for tax purposes (or the cash
method, if the junior subordinated debentures are deemed to have been issued
with OID) and you dispose of the preferred securities between record dates for
payments of distributions thereon, you will be required to include in gross
income for United States federal income tax purposes accrued but unpaid interest
on the junior subordinated debentures through the date of disposition (i.e.,
interest or, possibly, OID), and to add such amount to your adjusted tax basis
in accordance with your pro rata share of the underlying junior subordinated
debentures deemed disposed of. To the extent the selling price is less than your
adjusted tax basis (which will include all accrued but unpaid interest), you
will recognize a capital loss.
RECEIPT OF JUNIOR SUBORDINATED DEBENTURES OR CASH UPON LIQUIDATION OF ONB
CAPITAL TRUST I
Under certain circumstances, as described in the accompanying prospectus
under "Description of Capital Securities -- Liquidation Distribution upon
Termination," the property trustee may distribute the junior subordinated
debentures to you in exchange for your preferred securities, after satisfaction
of any liabilities to creditors as may be provided by applicable law. This will
result in the liquidation and termination of ONB Capital Trust I. Except as set
forth below, such a distribution will not be a taxable event for United States
federal income tax purposes, and you will have an aggregate adjusted tax basis
in the junior subordinated debentures you receive equal to your aggregate
adjusted tax basis in your preferred securities. For a description of adjusted
tax basis, see the discussion above in "-- Sales of Preferred Securities."
S-17
<PAGE> 20
Further, the holding period of the junior subordinated debentures you
receive will be the same as the period for which you held your preferred
securities. If, however, the distribution were caused by a Tax Event because ONB
Capital Trust I was taxable as a corporation, the distribution would be a
taxable event for United States federal income tax purposes. In that case, you
could recognize a gain or loss, your adjusted tax basis in the junior
subordinated debentures could differ from your adjusted tax basis in the
preferred securities, and your holding period for the junior subordinated
debentures would not include the period during which you held the preferred
securities.
The junior subordinated debentures may be redeemed for cash under certain
circumstances, and the proceeds would be used by the property trustee to redeem
a like amount of preferred securities. Such a redemption of preferred securities
would be a taxable event for United States federal income tax purposes, and you
would recognize gain or loss as if you had sold the preferred securities for
cash. See "-- Sales of Preferred Securities," above.
NON-U.S. HOLDERS
Payments to a Non-U.S. Holder will generally not be subject to United
States federal withholding tax, provided the holder:
- does not own (directly or indirectly, actually or constructively) 10% or
more of the total combined voting power of all classes of stock of Old
National entitled to vote; and
- is not a controlled foreign corporation that is related to Old National
actually or constructively through stock ownership.
To qualify for this exemption from withholding, the last United States
payer in the chain of payment prior to payment to a Non-U.S. Holder (the
"Withholding Agent") must have received a statement that:
- is signed by the holder of the preferred securities under penalties of
perjury;
- certifies that such holder is not a U.S. Holder; and
- provides the name and address of the holder.
The statement may be made on an appropriate IRS Form W-8, W-8BEN or a
substantially similar form. If the preferred securities are held through a
securities clearing organization or certain other financial institutions, the
organization or institution may provide a signed statement to the Withholding
Agent along with a copy of the form provided by the holder.
A Non-U.S. Holder will generally not be subject to United States federal
withholding or income tax on any gain realized upon the sale or other
disposition of the preferred securities. However, if a Non-U.S. Holder holds the
preferred securities in connection with a trade or business conducted in the
United States, or is present in the United States in certain circumstances, the
holder may be subject to income tax on income and gains recognized. Non-U.S.
Holders who may be described in the prior sentence should refer to the
discussion applicable to U.S. Holders, above, and should consult their own tax
advisors.
BACKUP WITHHOLDING TAX AND INFORMATION REPORTING
The amount of interest income paid and OID accrued on the preferred
securities held of record by U.S. Holders (other than corporations and other
exempt U.S. Holders) will be reported to the IRS. "Backup" withholding at a rate
of 31% will apply to payments of interest to nonexempt U.S. Holders unless the
U.S. Holder furnishes its taxpayer identification number in the manner
prescribed in applicable tax regulations, certifies that such number is correct,
certifies as to no loss of exemption from backup withholding and meets certain
other conditions.
Payment of the proceeds from the disposition of preferred securities to or
through the United States office of a broker is subject to information reporting
and backup withholding unless the holder or beneficial owner establishes an
exemption from information reporting and backup withholding.
S-18
<PAGE> 21
Any amounts withheld from a U.S. Holder under the backup withholding rules
will be allowed as a refund or a credit against such U.S. Holder's United States
federal income tax liability, provided the required information is furnished to
the IRS.
It is anticipated that income on the preferred securities will be reported
to holders on Form 1099-INT or, if Old National exercises its option to defer
any payment of interest, Form 1099-OID, and mailed to holders of the preferred
securities by January 31 following each calendar year.
The tax information above is intended only as a summary of material United
States federal tax consequences of an investment in ONB Capital Trust I. Old
National urges you to consult with your own tax advisors as to the United States
federal, state and local, and foreign and other tax consequences material to the
purchase, ownership or disposition of preferred securities. The statements of
United States tax laws described above are based on the laws in force as of the
date of this prospectus supplement and are subject to any changes in United
States law occurring after that date.
ERISA CONSIDERATIONS
Each fiduciary of a pension, profit-sharing or other employee benefit plan
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), (a "Plan") should consider the fiduciary standards of ERISA in the
context of the Plan's particular circumstances before authorizing an investment
in the capital securities. Accordingly, among other factors, the fiduciary
should consider whether the investment would satisfy the prudence and
diversification requirements of ERISA and would be consistent with the documents
and instruments governing the Plan.
Section 406 of ERISA and section 4975 of the Code prohibit Plans, as well
as individual retirement accounts, Keogh plans and other plans subject to
section 4975 of the Code (also "Plans"), from engaging in certain transactions
involving "plan assets" with persons that are "parties in interest" under ERISA
or "disqualified persons" under the Code with respect to the Plan. A violation
of these "prohibited transaction" rules may result in an excise tax or other
liabilities under ERISA and/or section 4975 of the Code being imposed on such
persons, unless exemptive relief is available under an applicable statutory or
administrative exemption. Employee benefit plans that are governmental plans (as
defined in section 3(32) of ERISA), certain church plans (as defined in 3(33) of
ERISA) and foreign plans (as described in section 4(b)(4) of ERISA) are not
subject to the requirements of ERISA or section 4975 of the Code, but may be
subject to similar provisions of other applicable local, state, federal or
foreign laws.
Under a regulation issued by the U.S. Department of Labor, the assets of
ONB Capital Trust I would be deemed to be "plan assets" of a Plan for purposes
of ERISA and section 4975 of the Code if "plan assets" of the Plan were used to
acquire an equity interest in ONB Capital Trust I and no exception were
applicable under the regulation. An "equity interest" is defined under the
regulation as any interest in an entity other than an instrument which is
treated as indebtedness under applicable local law and which has no substantial
equity features; the definition specifically includes a beneficial interest in a
trust.
Certain transactions involving ONB Capital Trust I could be deemed to
constitute direct or indirect prohibited transactions under ERISA and section
4975 of the Code with respect to a Plan if the preferred securities of ONB
Capital Trust I were acquired with "plan assets" of the Plan. For example, if
Old National is a "party in interest" or "disqualified person" with respect to
an investing Plan (either directly or by reason of its ownership of its
subsidiaries), an indirect extension of credit prohibited by section
406(a)(1)(B) of ERISA and section 4975(c)(1)(B) of the Code between Old National
and the investing Plan may be deemed to occur, unless exemptive relief were
available under an applicable administrative exemption (see below).
S-19
<PAGE> 22
The U.S. Department of Labor has issued five prohibited transaction class
exemptions ("PTCEs") that may provide exemptive relief for direct or indirect
prohibited transactions resulting from the purchase or holding of the preferred
securities. Those class exemptions are:
- PTCE 96-23 -- for certain transactions determined by in-house asset
managers,
- PTCE 95-60 -- for certain transactions involving insurance company
general accounts,
- PTCE 91-38 -- for certain transactions involving bank collective
investment funds,
- PTCE 90-1 -- for certain transactions involving insurance company
separate accounts, or
- PTCE 84-14 -- for certain transactions determined by independent
qualified professional asset managers.
Because of the possibility that direct or indirect prohibited transactions
could occur as a result of the purchase or holding of the preferred securities
by a Plan, the preferred securities may be not purchased or held by any Plan,
any entity whose underlying assets include "plan assets" by reason of any Plan's
investment in the entity (a "Plan Asset Entity") or any person investing "plan
assets" of any Plan, unless such purchase or holding is eligible for the
exemptive relief available under PTCE 96-23, 95-60, 91-38, 90-1 or 84-14. Any
purchaser or holder of the preferred securities or any interest therein will be
deemed to have represented by its purchase and holding thereof that either
- it is not a Plan or a Plan Asset Entity and is not purchasing such
preferred securities or interest therein on behalf of or with "plan
assets" of any Plan; or
- its purchase, holding and disposition of the preferred securities or
interest therein is eligible for the exemptive relief available under
PTCE 96-23, 95-60, 91-38, 90-1 or 84-14.
The "plan assets" regulation discussed above contains an exception for
investments by Plans in certain "publicly-offered securities." In order to
qualify for this exception, the securities in question must be: (i) "freely
transferable;" (ii) part of a class of securities that is owned by 100 or more
investors independent of the issuer and of one another; and (iii) either (a)
part of a class of securities registered under Section 12(b) or 12(g) of the
Securities Exchange Act of 1934, or (b) sold as part of a public offering
pursuant to an effective registration statement under the Securities Act of 1933
and registered under the Securities Exchange Act of 1934 within 120 days (or
such later time as may be allowed by the SEC) after the end of the issuer's
fiscal year during which the offering occurred.
It is currently anticipated that the preferred securities will be "freely
transferable" for purposes of this exception and will be owned by at least 100
investors independent of the issuer and of one another. Finally, no preferred
securities will be sold except pursuant to an effective registration statement
under the Securities Act of 1933, and it is intended that the required filings
under the Securities Exchange Act of 1934 will be made for purposes of this
exception. Therefore, ONB Capital Trust I should qualify for the exception, so
that the assets of ONB Capital Trust I should not be "plan assets" of any Plan
investing in the preferred securities, and ONB Capital Trust I underlying assets
should not be treated as "plan assets" of Plan investors for purposes of
determining whether any prohibited transaction has occurred.
Due to the complexity of these rules and the penalties imposed upon persons
involved in non-exempt prohibited transactions, it is important that any person
considering the purchase of preferred securities on behalf of or with "plan
assets" of any Plan consult with its counsel regarding the consequences under
ERISA and the Code of the acquisition and ownership of capital securities and
the availability of exemptive relief under PTCE 96-23, 95-60, 91-38, 90-1 and
84-14. In John Hancock Mutual Life Insurance Co. v. Harris Trust and Savings
Bank, 114 S.Ct. 517 (1993), the Supreme Court ruled that assets held in an
insurance company's general account may be deemed to be "plan assets" for ERISA
purposes under certain circumstances. The issues raised in Harris Trust have
also been the subject of legislative action, and have been addressed in proposed
regulations issued by the U.S. Department of Labor in December 1997.
S-20
<PAGE> 23
UNDERWRITING
Subject to the terms and conditions of the underwriting agreement dated
, 1999, each underwriter named below has severally agreed to
purchase, and ONB Capital Trust I has agreed to sell to such underwriter, the
number of preferred securities set forth opposite the name of such underwriter.
<TABLE>
<CAPTION>
NUMBER OF
NAME PREFERRED SECURITIES
- ---- --------------------
<S> <C>
Salomon Smith Barney Inc. .........................
--------
Total....................................
========
</TABLE>
The underwriting agreement provides that the obligations of the several
underwriters to purchase the preferred securities included in this offering are
subject to approval of certain legal matters by counsel and to certain other
conditions. The underwriters are obligated to purchase all of the preferred
securities if they purchase any of the preferred securities.
The underwriters, for whom Salomon Smith Barney Inc. is acting as
representative, propose to offer some of the preferred securities directly to
the public at the initial public offering price set forth on the cover page of
this prospectus supplement, and some of the preferred securities to certain
dealers at the initial public offering price less a concession of $ per
preferred security. The underwriters may allow, and such dealers may reallow, a
concession not in excess of $ per preferred security to certain brokers and
dealers. After the initial offering of the preferred securities to the public,
the public offering price and other selling terms may be changed by the
representative.
In view of the fact that the proceeds of the sale of the preferred
securities will ultimately be used to purchase the junior subordinated
debentures, the underwriting agreement provides that Old National will pay as
compensation to the underwriters $ per preferred security for the accounts
of the several underwriters ($ in the aggregate); provided, that such
compensation will be $0.50 per capital security for sales of preferred
securities to certain institutions. Therefore, to the extent of such sales, the
actual amount of underwriters' compensation will be less than the aggregate
amount specified in the preceding sentence.
In connection with the offering, Salomon Smith Barney, Inc., on behalf of
the underwriters, may purchase and sell preferred securities in the open market.
These transactions may include over-allotment, syndicate covering transactions
and stabilizing transactions. Over-allotment involves syndicate sales of
preferred securities in excess of the principal amount of preferred securities
to be purchased by the underwriters in the offering, which creates a syndicate
short position. Syndicate covering transactions involve purchases of the
preferred securities in the open market after the distribution has been
completed in order to cover syndicate short positions. Stabilizing transactions
consist of certain bids or purchases of preferred securities made for the
purpose of preventing or retarding a decline in the market price of the
preferred securities while the offering is in progress.
The underwriters also may impose a penalty bid. Penalty bids permit the
underwriters to reclaim a selling concession from a syndicate member when
Salomon Smith Barney, Inc., in covering syndicate short positions or making
stabilizing purchases, repurchases preferred securities originally sold by that
syndicate member.
Any of these activities may cause the price of the preferred securities to
be higher than the price that otherwise would exist in the open market in the
absence of such transactions. These transactions may be effected in the
over-the-counter market or otherwise and, if commenced, may be discontinued at
any time.
S-21
<PAGE> 24
The expenses associated with the offer and sale of the preferred securities
are estimated to be $294,100.
Certain of the underwriters and their affiliates have in the past provided,
and may in the future provide, investment banking services to Old National and
its affiliates in the ordinary course of business.
Old National and ONB Capital Trust I have agreed to indemnify the several
underwriters against certain liabilities, including liabilities under the
Securities Act of 1933, as amended, or contribute to payments the underwriters
may be required to make in respect of any of those liabilities.
Application will be made to list the preferred securities on the New York
Stock Exchange. If approved, trading of the preferred securities on the New York
Stock Exchange is expected to commence within a 30-day period after the initial
delivery of the preferred securities. Prior to this offering, there has been no
public market for the preferred securities. In order to meet one of the
requirements for listing the preferred securities on the New York Stock
Exchange, the underwriters will undertake to sell lots of 100 or more preferred
securities to a minimum of 400 beneficial holders.
Old National and ONB Capital Trust I have agreed, during the period of 15
days from the date of the underwriting agreement, not to sell, offer to sell,
grant any option for the sale of, or otherwise dispose of any preferred
securities, any security convertible into or exchangeable into or exercisable
for preferred securities or the junior subordinated debentures or any debt
securities substantially similar to the junior subordinated debentures or equity
securities substantially similar to the preferred securities (except for the
junior subordinated debentures and the preferred securities issued pursuant to
the underwriting agreement), without the prior written consent of the
representatives.
LEGAL MATTERS
Matters of Delaware law relating to the validity of the preferred
securities will be passed upon on behalf of Old National and ONB Capital Trust I
by Richards, Layton & Finger, P.A., Wilmington, Delaware, special Delaware
counsel to Old National and ONB Capital Trust I. The validity of the junior
subordinated debentures and the guarantee and certain matters relating to United
States federal income tax considerations will be passed upon on behalf of Old
National and ONB Capital Trust I by Krieg DeVault Alexander & Capehart, LLP.
Certain legal matters will be passed upon for the underwriters by Cleary,
Gottlieb, Steen & Hamilton, Washington, D.C.
S-22
<PAGE> 25
PROSPECTUS
$
OLD NATIONAL BANCORP
DEBT SECURITIES
-------------------------
ONB CAPITAL TRUST I
ONB CAPITAL TRUST II
ONB CAPITAL TRUST III
ONB CAPITAL TRUST IV
CAPITAL SECURITIES
FULLY AND UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN, BY
OLD NATIONAL BANCORP
THE ONB TRUSTS:
- - will issue and sell capital securities (representing undivided beneficial
interests in a trust) to the public;
- - will issue and sell common securities to Old National; and
- - will use the proceeds from these sales to buy a series of junior subordinated
debentures from Old National with terms that correspond to the capital
securities.
OLD NATIONAL:
- - will pay principal and interest on the junior subordinated debentures, subject
to payment on its more senior debt;
- - may choose to terminate a trust and distribute the junior subordinated
debentures pro rata to the holders of capital securities and common
securities;
- - will fully and unconditionally guarantee the capital securities on a junior
subordinated level based on:
- its obligations to make payments on the corresponding junior subordinated
debentures;
- its obligations under the capital securities guarantee (its payment
obligations are subordinated to payment on all of its Senior Debt); and
- its obligations under the trust agreement; and
- - may also issue and sell other debt securities to the public.
Old National urges you to read this prospectus and the prospectus supplement
carefully before you make your investment decision.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is , 1999.
<PAGE> 26
ABOUT THIS PROSPECTUS
In this prospectus, "Old National" refers to Old National Bancorp, a
"trust" or an "ONB Trust" refers to either ONB Capital Trust I, ONB Capital
Trust II, ONB Capital Trust III or ONB Capital Trust IV, which are the Delaware
statutory business trusts that Old National has formed to issue the capital
securities, and "we" or "us" refers to both Old National and the ONB Trusts.
This prospectus is part of a registration statement that we file with the
SEC utilizing a "shelf" registration process. Under this shelf process, Old
National or the ONB Trusts may issue and sell to the public any combination of
the securities described in this prospectus in one or more offerings up to a
total dollar amount of $200,000,000.
This prospectus provides you with only a general description of the
securities we may issue and sell. Each time Old National or an ONB Trust issues
and sells securities, we will provide a prospectus supplement that will contain
specific information about the particular securities and terms of that offering.
In the prospectus supplement, we will describe the interest rate, payment dates,
maturity and other terms of any debt securities that Old National issues and
sells, and the rights to periodic cash distributions, payments on liquidation
and other terms of a trust's capital securities. The prospectus supplement will
also describe the proceeds and uses of proceeds from the securities, together
with the names and compensation of the underwriters through whom the securities
are being issued and sold, and other important considerations for investors. It
may also add to, update or change information contained in this prospectus.
Unless we say otherwise in the prospectus supplement, Old National may
redeem its debt securities for cash, or cause the trusts to liquidate and give
investors Old National's debt securities in place of the ONB Trusts' capital
securities.
FORWARD-LOOKING STATEMENTS AND CAUTIONARY FACTORS
We have included or may include statements in this prospectus and any
prospectus supplement (including documents incorporated by reference described
under the heading "Where You Can Find More Information" below) that constitute
forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995. You will be able to recognize a forward-looking
statement because it contains the words "anticipate," "believe," "estimate,"
"expect," "project," "objective" or a similar expression to identify it as a
forward-looking statement.
WE CAUTION YOU THAT ANY SUCH FORWARD-LOOKING STATEMENTS ARE NOT GUARANTEES
OF FUTURE PERFORMANCE AND INVOLVE KNOWN AND UNKNOWN RISKS, UNCERTAINTIES AND
OTHER FACTORS WHICH MAY CAUSE OLD NATIONAL'S ACTUAL RESULTS, PERFORMANCE OR
ACHIEVEMENTS TO DIFFER MATERIALLY FROM THE FUTURE RESULTS, PERFORMANCE OR
ACHIEVEMENTS OLD NATIONAL HAS HAVE ANTICIPATED IN SUCH FORWARD-LOOKING
STATEMENTS.
In addition to the assumptions and other factors referred to specifically
in connection with their statements, factors that could cause Old National's
actual results to differ materially from those contemplated in the
forward-looking statements include factors Old National has described in the
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" section of Old National's Annual Report on Form 10-K or in the other
documents Old National has incorporated by reference.
2
<PAGE> 27
WHERE YOU CAN FIND MORE INFORMATION
Old National files annual, quarterly and special reports, proxy statements
and other information with the SEC. Old National's SEC filings are available to
the public over the Internet at the SEC's web site at http://www.sec.gov. and
through Old National's own web site at http://oldnational.com. You may also read
and copy any document Old National files at the SEC's public reference rooms and
at the SEC's regional offices as follows:
<TABLE>
<S> <C> <C>
Public Reference Room New York Regional Office Chicago Regional Office
450 Fifth Street, N.W. 7 World Trade Center Citicorp Center
Room 1024 Suite 1300 500 West Madison Street
Washington, D.C. 20549 New York, New York 10048 Suite 1400
Chicago, Illinois 60661-2551
</TABLE>
You may also obtain copies of this information by mail from the Public
Reference Section of the SEC, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, at prescribed rates. Further information on the operation of the
SEC's public reference room in Washington, D.C. can be obtained by calling the
SEC at 1-800-SEC-0330.
The SEC allows Old National to "incorporate by reference" the information
Old National files with them, which means Old National is assumed to have
disclosed important information to you when Old National refers you to documents
that are on file with the SEC. The information Old National has incorporated by
reference is an important part of this prospectus, and information that Old
National files later with the SEC will automatically update and supersede this
information. Old National incorporates by reference the documents listed below
and any future documents Old National files with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until Old National
sells all of the securities covered by this prospectus.
- Annual Report on Form 10-K for the fiscal year ended December 31, 1998.
- Quarterly Reports on Form 10-Q for the quarters ended March 31, 1999 and
June 30, 1999.
- Current Report on Form 8-K dated July 22, 1999, as amended
You may request a copy of these documents at no cost by writing to Old
National at the following address:
Old National Bancorp
420 Main Street
Evansville, Indiana 47708
Attn: Corporate Controller
Telephone: (812) 464-1434
You should rely only on the information provided in or incorporated by
reference (and not later changed) in this prospectus or any prospectus
supplement. Old National has not authorized anyone else to provide you with
additional or different information. Old National is not making an offer of any
securities in any state where the offer is not permitted. You should not assume
that the information in this prospectus or any prospectus supplement is accurate
as of any date other than the date on the front of those documents.
3
<PAGE> 28
OLD NATIONAL BANCORP
Overview. Old National is a multi-bank holding company that operates 119
banking offices and 174 ATM locations in Indiana, Illinois and Kentucky through
its bank subsidiaries. These banks provide a wide range of financial services,
including:
- commercial, consumer and real estate loans;
- deposit products;
- issuing and servicing credit cards;
- leasing;
- letters of credit; and
- safe deposit facilities.
Old National also owns non-bank subsidiaries that provide additional
financial services incidental to its operations, including:
- securities brokerage services;
- fiduciary and trust services;
- investment services; and
- issuance and reinsurance of credit life, accident, health, life, property
and casualty insurance.
Old National was incorporated in 1982 in the State of Indiana as the
holding company of the Old National Bank in Evansville, Indiana. Old National
Bank has provided banking services since 1834. Old National began an acquisition
program in 1985 and has acquired 38 financial institutions since that time. Old
National continues to explore opportunities to acquire banks, savings
associations and non-bank companies and is currently reviewing and analyzing
potential acquisitions, as well as engaging in discussions or negotiations
concerning potential acquisitions. There can be no assurance that any of these
discussions or negotiations will result in definitive agreements or consummated
acquisitions. Any acquisitions may be pending or completed during the period
that the capital securities are being offered.
As a legal entity separate and distinct from its bank and non-bank
subsidiaries, Old National's principal sources of revenues are dividends and
fees from its bank and non-bank subsidiaries. The subsidiaries that operate in
the banking, insurance and securities business can pay dividends only if they
are in compliance with the applicable regulatory requirements imposed on them by
federal and state regulatory authorities. Old National currently believes that
none of these regulatory restrictions on the ability of its subsidiaries to pay
dividends will affect Old National's ability to service its debt.
Old National's principal office is located at 420 Main Street, Evansville,
Indiana 47708, and its telephone number is (812) 464-1434.
Supervision and Regulation. As a bank holding company, Old National is
subject to regulation, supervision and examination by the Board of Governors of
the Federal Reserve System under the Bank Holding Company Act of 1956, as
amended. For a discussion of certain of the material elements of the regulatory
framework applicable to bank holding companies and their subsidiaries and
certain specific information relevant to Old National, see Old National's Annual
Report on Form 10-K for the fiscal year ended December 31, 1998 which is
incorporated by reference into this Prospectus.
This regulatory framework is intended primarily for the protection of
depositors and the federal deposit insurance funds and not for the protection of
security holders or creditors. The various government rules, regulations and
requirements that apply to Old National impact its business and activities. A
change in applicable statutes, rules, regulations or regulatory policies may
have a material effect on Old National's
4
<PAGE> 29
business and earnings. In addition, Old National's business and earnings are
affected by general economic conditions, legislation and actions of regulatory
authorities.
Under policy of the Federal Reserve, a bank holding company is expected to
act as a source of financial strength for its bank subsidiaries and to commit
resources to support such banks. As a result, the Federal Reserve may require
Old National to commit resources to its bank subsidiaries.
THE ONB TRUSTS
Each ONB Trust is a statutory business trust that Old National has formed
under Delaware law. For each trust there is a trust agreement signed by Old
National as depositor, by Bank One Trust Company, NA, as property trustee, and
by Bank One Delaware, Inc., as Delaware trustee. For each trust there is also a
certificate of trust filed with the Delaware Secretary of State. When Old
National is ready to issue and sell securities through the trust, the trust
agreement will be amended to read substantially like the form of amended and
restated trust agreement that is filed with the SEC as an exhibit to the
registration statement of which this prospectus is a part. Each trust agreement
will be qualified as an indenture under the Trust Indenture Act of 1939.
THE ISSUANCE AND SALE OF THE CAPITAL SECURITIES AND COMMON SECURITIES
Old National has created each ONB Trust solely to:
- issue and sell its capital securities and common securities, which
represent proportionate beneficial ownership interests in that ONB Trust
and its assets;
- use the proceeds from the sale of the capital securities and common
securities to buy from Old National a series of Old National's junior
subordinated debentures, which will be the only assets of that ONB Trust;
- maintain its status as a grantor trust for federal income tax purposes;
and
- engage in only those other activities necessary or convenient to
accomplish the purposes listed above.
Because the ONB Trusts' only assets will be junior subordinated debentures
that Old National issues to them, Old National's payments on the junior
subordinated debentures will be the only source of funds to be paid to
purchasers or owners of the capital securities and common securities. Each of
the ONB Trusts is a separate legal entity, so the assets of one will not be
available to satisfy the obligations of any other similar trust Old National may
create.
Old National will acquire and own all of the common securities of each ONB
Trust. The common securities will have an aggregate liquidation amount of at
least 3% of the total capital of each ONB Trust. The remainder, representing up
to 97% of the ownership interests in the ONB Trust, will be capital securities
of the ONB Trust that may be sold to the public. The common securities and the
capital securities will have substantially the same terms, including the same
priority of payment and liquidation amount, and will receive proportionate
payments from the ONB Trust in respect of distributions and payments upon
liquidation, redemption or otherwise at the same times, with one exception: if
Old National defaults on the junior subordinated debentures that it issues to
that ONB Trust and does not cure the default within the times specified in the
indenture governing the issuance of the junior subordinated debentures, Old
National's rights to payments as holder of the common securities will be
subordinated to the rights of the holders of the capital securities. See
"Description of Capital Securities -- Subordination of Common Securities."
Unless Old National says otherwise in the applicable prospectus supplement,
each ONB Trust will have a term of approximately 50 years. However, an ONB Trust
may terminate earlier as provided in the applicable trust agreement and the
prospectus supplement.
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<PAGE> 30
Each ONB Trust's business and affairs will be conducted by its trustees,
whom Old National, as holder of the common securities, will appoint. Unless Old
National says otherwise in the applicable prospectus supplement, the trustees
for each ONB Trust will be:
- Bank One Trust Company, NA, as the property trustee; and
- Bank One Delaware, Inc., as the Delaware trustee.
Old National refers to the property trustee and the Delaware trustee
together as the "issuer trustees." Bank One Trust Company, NA, as property
trustee, will act as sole indenture trustee under each trust agreement for
purposes of compliance with the Trust Indenture Act. Unless Old National says
otherwise in the applicable prospectus supplement, Bank One Trust Company, NA
will also act as trustee under Old National's guarantee agreement relating to
the capital securities. See "Description of Guarantees" and "Description of Debt
Securities -- Certain Provisions Relating to Junior Subordinated Debentures
Issued to the ONB Trusts."
As the holder of the common securities of each ONB Trust, Old National will
ordinarily have the right to appoint, remove or replace either issuer trustee
for each ONB Trust. However, if Old National is in default with respect to the
corresponding junior subordinated debentures issued to that ONB Trust (and Old
National has not cured that default within the time specified in the indenture),
then the holders of a majority in liquidation amount of that ONB Trust's
outstanding capital securities will be entitled to appoint, remove or replace
either or both issuer trustees. In no event will the holders of the capital
securities have the right to vote to appoint, remove or replace the
administrators. Old National retains that right exclusively as the holder of the
common securities. The duties and obligations of each issuer trustee are
governed by the applicable trust agreement.
Pursuant to the indenture and the trust agreements, Old National promises
to pay all fees and expenses related to each ONB Trust and the offering of the
capital securities and will pay, directly or indirectly, all ongoing costs,
expenses and liabilities of each ONB Trust, except obligations under the capital
securities and the common securities.
The ONB Trusts have no separate financial statements. Separate financial
statements would not be material to holders of the capital securities because
the ONB Trusts have no independent operations. They exist solely for the limited
functions summarized above. Old National will guarantee the capital securities
as described later in this prospectus.
The principal executive office of each ONB Trust is c/o Old National
Bancorp, 420 Main Street, Evansville, Indiana 47708, and its telephone number is
(812) 464-1434.
USE OF PROCEEDS
Each ONB Trust will use all of the proceeds it receives from the sale of
its capital securities and common securities to purchase from Old National the
junior subordinated debentures that will provide the funds for that ONB Trust's
payments to purchasers of its capital securities and common securities. Except
as otherwise described in the applicable prospectus supplement, Old National
intends to use the net proceeds from the sale of Old National's debt securities
(either to the ONB Trusts or directly to the public) for repayment of debt,
repurchases of its common stock, investments in and advances to its
subsidiaries, and general corporate purposes, including possible future
acquisitions. Old National may temporarily invest any funds not required
immediately for those purposes in short-term marketable securities. Old National
expects to borrow money or sell securities in the future, but Old National
cannot predict the precise amounts or timing of doing so. For current
information, look at Old National's current filings with the SEC. See "Where You
Can Find More Information."
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<PAGE> 31
CAPITALIZATION
The following table summarizes Old National's historical capitalization as
of June 30, 1999, and Old National's capitalization as adjusted to reflect the
assumed issuance and sale of an aggregate of $200 million liquidation amount of
capital securities and the related common securities of the trusts.
<TABLE>
<CAPTION>
JUNE 30, 1999
--------------------------
ACTUAL AS ADJUSTED
----------- ------------
(IN THOUSANDS OF DOLLARS)
<S> <C> <C>
Long term debt.............................................. $ 769,653 $ 769,653
Guaranteed Preferred Beneficial Interests in Company's
Subordinated Debentures................................... -- 200,000
Shareholders' Equity
Preferred stock, 2,000,000 shares authorized, no shares
issued or outstanding.................................. -- --
Common stock (par value $1.00 per share -- 75,000,000
shares authorized, and approximately 46,200,000 shares
issued and outstanding)................................ $ 46,159 $ 46,159
Capital surplus........................................... 352,285 352,285
Retained earnings......................................... 140,888 140,888
Accumulated other comprehensive income, net of tax........ (10,046) (10,046)
---------- ----------
Total shareholders' equity................................ $ 529,286 $ 529,286
---------- ----------
Total capitalization........................................ $1,298,939 $1,498,939
========== ==========
Short term debt............................................. $ 720,715 $ 720,715
</TABLE>
RATIO OF EARNINGS TO FIXED CHARGES
Old National's historical ratios of earnings to fixed charges are described
below for the periods indicated.
<TABLE>
<CAPTION>
SIX MONTHS
ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
---------- -------------------------------------
1999 1998 1997 1996 1995 1994
---------- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges
Excluding interest on deposits............ 299.4 326.0 367.8 470.7 437.7 489.5
Including interest on deposits............ 153.8 150.7 150.8 152.0 147.9 153.7
</TABLE>
The ratio of earnings to fixed charges for Old National has been computed
by dividing earnings by fixed charges. "Earnings" include pretax income from
continuing operations plus fixed charges. "Fixed charges" include the total of
interest expense, capitalized interest, expensed or capitalized amortization of
debt expense and any related discount or premium, and such portion of rental
expense that is representative of the interest factor of each such rental.
DESCRIPTION OF DEBT SECURITIES
The debt securities, including any junior subordinated debentures that Old
National issues to an ONB Trust, will be Old National's direct unsecured general
obligations. The debt securities will be junior subordinated debt securities,
including the junior subordinated debentures that are issued to the ONB Trusts.
The debt securities will be issued in one or more series under the indenture
between Old National and Bank One Trust Company, NA, as trustee and under a
securities resolution of Old National authorizing the particular series.
Old National has summarized selected provisions of the indenture below. The
summary is not complete. The form of the indenture and a form of amended and
restated trust agreement are filed as exhibits to the registration statement of
which this prospectus is a part. The amended and restated trust agreement for
each series also has been or will be filed or incorporated by reference as an
exhibit to the
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<PAGE> 32
registration statement. You should read the indenture and the applicable amended
and restated trust agreement for provisions that may be important to you. In the
summary below, Old National has included references to section numbers in the
indenture so that you can easily find those provisions. The particular terms of
any debt securities Old National offers will be described in the related
prospectus supplement, along with any applicable modifications of or additions
to the general terms of the debt securities described below and in the
indenture. For a description of the terms of any series of debt securities, you
should also review both the prospectus supplement relating to that series and
the description of the debt securities set forth in this prospectus before
making an investment decision.
GENERAL
The indenture does not significantly limit Old National's operations. In
particular, it does not:
- limit the amount of debt securities that Old National can issue under the
indenture;
- limit the number of series of debt securities that Old National can issue
from time to time;
- restrict the total amount of debt that Old National or its subsidiaries
may incur; or
- contain any covenant or other provision that is specifically intended to
afford any holder of the debt securities special protection in the event
of highly leveraged transactions or any other transactions resulting in a
decline in Old National's ratings or credit quality.
As of the date of this prospectus, there are no debt securities outstanding
under the indenture. The ranking of a series of debt securities with respect to
all of Old National's indebtedness will be established by the securities
resolution creating the series.
Although the indenture permits the issuance of debt securities in other
forms or currencies, the debt securities covered by this prospectus will only be
denominated in U.S. dollars in registered form without coupons, unless otherwise
indicated in the applicable prospectus supplement.
TERMS
A prospectus supplement and a securities resolution relating to the
offering of any series of debt securities will include specific terms relating
to the offering. The terms will include some or all of the following:
- the designation, aggregate principal amount, currency or composite
currency (if other than U.S. dollars) and denominations of the debt
securities;
- the price at which the debt securities will be issued and, if an index,
formula or other method is used, the method for determining amounts of
principal or interest;
- the maturity date and other dates, if any, on which the principal of the
debt securities will be payable;
- the interest rate or rates, if any, or method of calculating the interest
rate or rates which the debt securities will bear;
- the date or dates from which interest will accrue and on which interest
will be payable, and the record dates for the payment of interest; the
manner of paying principal and interest on the debt securities; the place
or places where principal and interest will be payable;
- the terms of any mandatory or optional redemption of the debt securities
by Old National, including any sinking fund, the terms of any conversion
or exchange right; the terms of any redemption of debt securities at the
option of holders; any tax indemnity provisions;
- the portion of principal payable upon acceleration of the maturity date
of any debt security;
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<PAGE> 33
- whether and upon what terms debt securities may be defeased (which means
that Old National would be discharged from its obligations by depositing
sufficient cash or government securities to pay the principal, interest,
any premiums and other sums due to the stated maturity date or a
redemption date of the debt securities of the series);
- whether any events of default or covenants in addition to or instead of
those set forth in the indenture apply; provisions for electronic
issuance of debt securities or for debt securities in uncertificated
form;
- any provisions relating to extending or shortening the date on which the
principal and premium, if any, of the debt securities of the series is
payable;
- any provisions relating to the deferral of payment of any interest;
- the terms of any right to convert or exchange the debt securities into
any other securities or property of Old National;
- if the series of debt securities is to be issued to an ONB Trust, the
forms of the related trust agreement and guarantee agreement;
- the additions or changes, if any, to the indenture with respect to that
series of debt securities to permit or facilitate the issuance of that
series of debt securities to an ONB Trust; and
- any other terms not inconsistent with the provisions of the indenture,
including any covenants or other terms that may be required or advisable
under United States or other applicable laws or regulations, or advisable
in connection with the marketing of the debt securities. (Section 3.1).
Old National may issue debt securities of any series in such form and in
such denominations as Old National specifies in the securities resolution and
prospectus supplement for the series. (Section 2.1).
A holder of registered debt securities may request registration of a
transfer upon surrender of the debt security being transferred at any agency or
office that Old National maintains for that purpose and upon fulfillment of all
other requirements of the agent.
CERTAIN COVENANTS
Any restrictive covenants that may apply to a particular series of debt
securities will be described in the related prospectus supplement.
SUBORDINATION
The indenture provides that the debt securities will be subordinated and
junior in right of payment to all Senior Debt (as defined below) of Old
National. This means that no payment of principal, including redemption
payments, premium, if any, or interest on the debt securities may be made if:
- any Senior Debt of Old National has not been paid when due and any
applicable grace period relating to such default has ended and such
default has not been cured or waived or ceased to exist; or
- the maturity of any Senior Debt of Old National has been accelerated
because of a default.
Upon any distribution of Old National's assets to creditors upon any
termination, winding-up, liquidation or reorganization, whether voluntary or
involuntary, or in bankruptcy, insolvency, receivership or other proceedings,
all principal, premium, if any, and interest due or to become due on all Senior
Debt of Old National must be paid in full before the holders of debt securities
are entitled to receive or retain any payment. Upon satisfaction of all claims
related to all Senior Debt of Old National then outstanding, the rights of the
holders of the debt securities will be subrogated to the rights of the holders
of Senior Debt of Old National to receive payments or distributions applicable
to Senior Debt until all amounts owing on the debt securities are paid in full.
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<PAGE> 34
The term "Senior Debt" means:
(1) the principal, premium, if any, and interest in respect of (a)
indebtedness for money borrowed and (b) indebtedness evidenced by
securities, notes, debentures, bonds or other similar instruments issued by
Old National;
(2) all capital lease obligations of Old National;
(3) all obligations of Old National issued or assumed as the deferred
purchase price of property, all conditional sale obligations of Old
National and all obligations of Old National under any conditional sale or
title retention agreement, but excluding trade accounts payable arising in
the ordinary course of business;
(4) all obligations, contingent or otherwise, of Old National in
respect of any letters of credit, banker's acceptance, security purchase
facilities or similar credit transactions;
(5) all obligations in respect of interest rate swap, cap or other
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements;
(6) all obligations of the type referred to in clauses (1) through (5)
above of other persons for the payment of which Old National is responsible
or liable as obligor, guarantor or otherwise; and
(7) all obligations of the type referred to in clauses (1) through (6)
above of other persons secured by any lien on any property or asset of Old
National, whether or not such obligation is assumed by such obligor, except
for
(a) any such indebtedness that by its terms ranks equally with, or
junior to, the debt securities; and
(b) any indebtedness between or among Old National or its
affiliates, including all other debt securities and guarantees in
respect of those debt securities, issued to (i) any ONB Trust or a
trustee of such ONB Trust or (ii) any other trust, or a trustee of such
trust, partnership or other entity affiliated with Old National that is
a financing vehicle of Old National in connection with the issuance by
such financing vehicle of preferred securities or other securities
guaranteed by Old National pursuant to an instrument that ranks equally
with, or junior to, the guarantee.
Such Senior Debt shall continue to be Senior Debt and be entitled to the
benefits of the subordination provisions irrespective of any amendment,
modification or waiver of any term of such Senior Debt.
SUCCESSOR OBLIGOR
The indenture provides that, unless otherwise specified in the securities
resolution establishing a series of debt securities, Old National will not
consolidate with or merge into, or transfer all or substantially all of Old
National's assets to, another company, unless:
- that company is organized under the laws of the United States or any
state or the District of Columbia;
- that company assumes by supplemental indenture all of Old National's
obligations under the indenture and the debt securities;
- all required approvals of any regulatory body having jurisdiction over
the transaction shall have been obtained; and
- immediately after the transaction no default exists under the indenture.
(Section 8.1).
The successor shall be substituted for Old National as if it had been an
original party to the indenture, the trust agreements and the debt securities.
Thereafter the successor may exercise Old
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<PAGE> 35
National's rights and powers under the indenture, the trust agreements and the
debt securities, and all of Old National's obligations under those documents
will terminate. (Section 8.2)
EXCHANGE OF DEBT SECURITIES
Registered debt securities may be exchanged for an equal principal amount
of registered debt securities of the same series and date of maturity in
authorized denominations requested by the holders upon surrender of the
registered debt securities at an office or agency Old National maintains for
that purpose and upon fulfillment of all other requirements set forth in the
indenture. (Section 3.6)
DEFAULTS
Unless the securities resolution establishing the series provides for
different events of default, in which event the prospectus supplement will
describe the change, an event of default with respect to a series of debt
securities will occur if:
- Old National defaults in any payment of interest on any debt securities
of that series when the payment becomes due and payable and the default
continues for a period of 30 days;
- Old National defaults in the payment of the principal and premium, if
any, of any debt securities of the series when those payments become due
and payable at maturity or upon redemption, acceleration or otherwise;
- Old National defaults in the payment or satisfaction of any sinking fund
obligation with respect to any debt securities of the series as required
by the securities resolution establishing the series and the default
continues for a period of 30 days;
- Old National defaults in the performance of any of Old National's other
agreements applicable to the series and the default continues for 90 days
after the notice specified below;
- Old National files for bankruptcy or other specified events in
bankruptcy, insolvency, receivership or reorganization occur; or
- any other event of default specified in the prospectus supplement occurs.
(See Section 5.1)
A default under the indenture means any event which is, or after notice or
passage of time would be, an event of default under the indenture. A default
under the fourth bullet point above is not an event of default until the trustee
or the holders of at least 25% in principal amount of the debt securities of a
series notify Old National of the default and Old National does not cure the
default within the time specified after receipt of the notice. (Section 5.1)
REMEDIES
If an event of default occurs under the indenture with respect to any
series of debt securities and is continuing, the trustee by notice to Old
National or (except as provided in the next sentence) the holders of at least
25% in principal amount of the series by notice both to Old National and to the
trustee, may declare the principal of and accrued interest on all the debt
securities of the series to be due and payable immediately. In the case of a
series of junior subordinated debentures issued to an ONB Trust, if, upon an
event of default, the trustee or the other holders, if any, together holding not
less than 25% in aggregate principal amount of that series, fail to declare the
principal of all the debt securities of that series to be immediately due and
payable, then the holders of 25% in aggregate liquidation amount of the capital
securities issued by the ONB Trust then outstanding shall have the right to do
so by notice to Old National and to the trustee.
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<PAGE> 36
Except as provided in the next sentence, the holders of a majority in
principal amount of a series of debt securities, by notice to the trustee, may
rescind an acceleration and its consequences if certain conditions are met,
including:
(a) Old National pays or deposits with the indenture trustee a sum
sufficient to pay:
(i) all overdue interest,
(ii) the principal of and any premium which have become due other
than by the declaration of acceleration and overdue interest on those
amounts,
(iii) any overdue sinking fund payments and overdue interest on
such payments,
(iv) interest on overdue interest to the extent lawful, and
(v) all amounts otherwise due to the indenture trustee under the
indenture;
(b) the rescission would not conflict with any judgment or decree;
(c) all existing events of default on the series have been cured or
waived except nonpayment of principal or interest that has become due
solely because of the acceleration.
In the case of a series of junior subordinated debentures issued to an ONB
Trust, the holders of a majority in aggregate liquidation amount of the capital
securities issued by that ONB Trust then outstanding shall also have the right
to rescind the acceleration and its consequences with respect to such series,
subject to the same conditions set forth above. (Section 5.2)
If an event of default occurs and is continuing on a series, the trustee
may pursue any available remedy to collect principal or interest then due on the
series, to enforce the performance of any provision applicable to the series, or
otherwise to protect the rights of the trustee and holders of the series.
(Section 5.3)
In the case of a series of junior subordinated debentures issued to an ONB
Trust, any holder of the outstanding capital securities issued by that ONB Trust
shall have the right, upon the occurrence and continuance of an event of default
with respect to that series following Old National's failure to pay timely
interest, principal or premium as described above, to sue Old National directly.
In that lawsuit the holder of the capital securities can force Old National to
pay to the holder (instead of the ONB Trust) the principal of, and premium, if
any, and interest on, junior subordinated debentures held by the ONB Trust
having a principal amount equal to the aggregate principal amount of the capital
securities held by that holder. (Section 5.8)
The trustee may require an indemnity satisfactory to it before it performs
any duty or exercises any right or power under the indenture or the debt
securities which if reasonably believes may expose it to any risk of loss or
liability. (Section 6.1) With some limitations, holders of a majority in
principal amount of the debt securities of a series may direct the trustee in
its exercise of any trust or power with respect to that series. (Section 5.12)
Except in the case of default in payment on a series, the trustee may withhold
notice of any continuing default with respect to the debt securities of that
series if it determines that withholding the notice is in the interest of
holders of the series. (Section 6.2) Old National is required to furnish the
trustee annually a brief certificate as to Old National's compliance with all
terms and conditions of the indenture. (Section 10.4)
The events of default specified in the indenture do not include a
cross-default provision. Thus, except to the extent provided in the securities
resolution establishing a series, a default by Old National on any other debt,
including any other series of debt securities, would not constitute an event of
default under the indenture (or in the case of an event of default as to any
series, an event of default as to any other series outstanding under the
indenture). If a securities resolution provides for a cross-default provision,
the prospectus supplement will describe the terms of that provision.
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<PAGE> 37
AMENDMENTS
Without the consent of any debt security holder, subject to certain
limitations, Old National may amend the indenture by entering into one or more
supplemental indentures of any of the following purposes:
- to cure any ambiguity, omission, defect or inconsistency;
- to provide for the assumption of Old National's obligations to debt
security holders by the surviving company in the event of a merger or
consolidation requiring such assumption as described above under
"-- Successor Obligor";
- to provide that specific provisions of the indenture shall not apply to a
series of debt securities not previously issued;
- to create a series of debt securities and establish its terms;
- to provide for a separate trustee for one or more series of debt
securities; or
- to make any change that does not materially adversely affect the rights
of any debt security holder. (Section 9.1)
Unless the securities resolution provides otherwise, in which event the
prospectus supplement will describe the revised provision, Old National and the
trustee may amend the indenture by entering into one or more supplemental
indentures with the written consent of the holders of a majority in principal
amount of the debt securities of all series affected voting as one class.
However, without the consent of each debt security holder affected, no amendment
may:
- reduce the principal amount of debt securities whose holders must consent
to an amendment or waiver;
- reduce the interest on or change the time for payment of interest on any
debt security (but this does not affect Old National's right to elect to
defer one or more payments of interest as described below under
"-- Certain Provisions Relating to Junior Subordinated Debentures Issued
to the ONB Trusts -- Option to Defer Interest Payment Date");
- change the stated maturity of any debt security (subject to any right Old
National may have retained in the securities resolution and described in
the prospectus supplement);
- reduce the principal of any debt security or, if less than the principal
amount thereof, reduce the amount that would be due on acceleration of
any debt security thereof;
- change the currency in which the principal or interest on a debt security
is payable;
- make any change that materially adversely affects the right to convert or
exchange any debt security; or
- waive any default in payment of interest on or principal of a debt
security. (Section 9.2)
In the case of a series of junior subordinated debentures issued to an ONB
Trust, Old National is not permitted to amend the indenture if such amendment
adversely affects the holders of the capital securities of that ONB Trust in any
material respect, and no termination of the indenture shall occur, without the
prior consent of the holders of not less than a majority in aggregate
liquidation amount of the capital securities then outstanding unless and until
the principal (and premium, if any) of the junior subordinated debentures of
that series and all accrued and unpaid interest thereon have been paid in full.
Furthermore, in the case of a series issued to an ONB Trust, no amendment can be
made to the provisions of the indenture allowing holders of capital securities
of that ONB Trust to sue directly following Old National's failure to make
timely payments on the junior subordinated debentures as described above without
the prior consent of the holder of each capital security then outstanding unless
and until the principal (and
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<PAGE> 38
premium, if any) of the junior subordinated debentures of that series and all
accrued and unpaid interest thereon have been paid in full. (Section 9.2)
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Debt securities of a series may be defeased at any time in accordance with
their terms and as set forth in the indenture and described briefly below,
unless the securities resolution establishing the terms of the series provides
otherwise. Any defeasance may terminate all of Old National's obligations (with
limited exceptions) with respect to a series of debt securities and the
indenture ("legal defeasance"), or it may terminate only Old National's
obligations under any restrictive covenants which may be applicable to a
particular series ("covenant defeasance").
Old National may exercise Old National's legal defeasance option even
though Old National has also exercised Old National's covenant defeasance
option. If Old National exercises the legal defeasance option with respect to a
series of debt securities, that series may not be accelerated because of an
event of default. (Section 4.2) If Old National exercises the covenant
defeasance option, that series of debt securities may not be accelerated by
reference to any restrictive covenants which may be applicable to that
particular series. (Section 4.3)
To exercise either defeasance option as to a series of debt securities, Old
National must:
- irrevocably deposit in trust (the "defeasance trust") with the trustee or
another trustee money or U.S. government obligations;
- deliver a certificate from a nationally recognized firm of independent
accountants expressing their opinion that the payments of principal and
interest when due on the deposited U.S. government obligations, without
reinvestment, plus any deposited money without investment, will provide
cash at the times and in the amounts necessary to pay the principal and
interest when due on all debt securities of the series to maturity or
redemption, as the case may be; and
- comply with certain other conditions. In particular, Old National must
obtain an opinion of tax counsel that the defeasance will not result in
recognition of any gain or loss to holders for federal income tax
purposes.
U.S. government obligations are direct obligations of (a) the United States
or (b) an agency or instrumentality of the United States, the payment of which
is unconditionally guaranteed by the United States, which, in either case (a) or
(b), have the full faith and credit of the United States of America pledged for
payment and which are not callable at the issuer's option. It also includes
certificates representing an ownership interest in such obligations. (Section
4.4)
CERTAIN PROVISIONS RELATING TO JUNIOR SUBORDINATED DEBENTURES ISSUED TO THE ONB
TRUSTS
General. The junior subordinated debentures that Old National issues to an
ONB Trust may be issued in one or more series under the indenture with terms
corresponding to the terms of a series of capital securities issued by that ONB
Trust. The principal amount of the junior subordinated debentures that Old
National issues to an ONB Trust will be equal to the aggregate stated
liquidation amount of the capital securities and common securities of that ONB
Trust. Concurrently with the issuance of each ONB Trust's capital securities,
each ONB Trust will invest the proceeds from the sale of the capital securities
and the consideration Old National pays for the common securities in a series of
corresponding junior subordinated debentures that Old National will issue to
that ONB Trust.
The prospectus supplement will describe specific terms relating to the
offering of each series of junior subordinated debentures. See "Description Of
Debt Securities -- Terms."
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Unless otherwise specified in the applicable securities resolution, Old
National will covenant, as to each series of junior subordinated debentures:
- to maintain, directly or indirectly, 100% ownership of the common
securities of the ONB Trust to which the corresponding junior
subordinated debentures have been issued (provided that certain
successors which are permitted pursuant to the indenture may succeed to
Old National's ownership of the common securities);
- not to voluntarily terminate, wind-up or liquidate any ONB Trust, except:
-- in connection with a distribution of the junior subordinated debentures
to the holders of the capital securities in liquidation of the ONB
Trust; or
-- in connection with certain mergers, consolidations or amalgamations
permitted by the related trust agreement; and
- to use Old National's reasonable efforts, consistent with the terms and
provisions of the related trust agreement, to cause such ONB Trust to
remain classified as a grantor trust and not as an association taxable as
a corporation for United States federal income tax purposes.
For additional covenants relating to payment of expenses of the ONB Trusts,
see "Description of Capital Securities -- Payment of Expenses."
Option to Defer Interest Payment Date. Unless otherwise stated in the
applicable prospectus supplement, Old National will have the right at any time
and from time to time during the term of any series of junior subordinated
debentures issued to an ONB Trust to defer payments of interest by extending the
interest payment period for a specified number of consecutive periods. No
deferral period may extend beyond the maturity date of that series of junior
subordinated debentures. Old National may pay at any time all or any portion of
the interest accrued to that point during a deferral period. At the end of the
deferral period or at a redemption date, Old National will be obligated to pay
all interest accrued and unpaid (together with interest on the unpaid interest
to the extent permitted by applicable law). United States federal income tax
consequences and special considerations applicable to any junior subordinated
debentures issued to an ONB Trust for which a deferral period has been elected
will be described in the applicable prospectus supplement. During any deferral
period, or while Old National is in default, Old National will be restricted in
its ability to make payments or incur obligations related to its capital stock
or debt securities ranking equal to or below the junior subordinated debentures.
See "-- Restrictions on Certain Payments."
Prior to the termination of any deferral period, Old National may extend
the interest payment period, and, after the termination of any deferral period
and the payment of all amounts due, Old National may decide to begin a new
deferral period. However, the deferral period may not extend beyond the maturity
date of the junior subordinated debentures.
If the trustee is the sole holder of the series of junior subordinated
debentures held by the ONB Trust, Old National will give the trustee and the
issuer trustees of the ONB Trust notice of Old National's selection of any
deferral period one business day prior to the earlier of:
- the next date distributions on the capital securities are payable; or
- the date the ONB Trust is required to give notice to the New York Stock
Exchange (or other applicable self-regulatory organization) or to holders
of its capital securities of the record date or the date any distribution
on the capital securities is payable.
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If the property trustee is not the sole holder of the series of junior
subordinated debentures, Old National will give the holders of the junior
subordinated debentures notice of Old National's selection of any deferral
period ten business days prior to the earliest of:
- the next interest payment date; or
- the date upon which Old National is required to give notice to the New
York Stock Exchange (or other applicable self-regulatory organization) or
to holders of the junior subordinated debentures of the record or payment
date of any related interest payment.
Redemption. The junior subordinated debentures and the applicable
securities resolution will provide the terms upon which Old National can redeem
the junior subordinated debentures at Old National's option, and will specify a
date prior to which Old National will not be allowed to redeem the junior
subordinated debentures, and after which Old National will have the right to
redeem the junior subordinated debentures, in whole or in part, upon not less
than 30 days nor more than 60 days notice to the holder of the junior
subordinated debentures at a redemption price or prices stated in the applicable
prospectus supplement. In order to redeem the junior subordinated debentures of
any series held by an ONB Trust, Old National may need to obtain the prior
approval of the Board of Governors of the Federal Reserve System.
If the junior subordinated debentures are redeemed only in part, they will
be redeemed pro rata or by lot or by any other method selected by the trustee.
If a partial redemption of the junior subordinated debentures would result in
delisting from any national securities exchange or other self-regulatory
organization on which the capital securities of the ONB Trust holding the junior
subordinated debentures are then listed, Old National will not be permitted to
effect a partial redemption and may only redeem the junior subordinated
debentures as a whole.
Except as otherwise specified in the applicable prospectus supplement and
subject to the provisions of the applicable securities resolution, if a Tax
Event (as defined below), an Investment Company Event (as defined below) or a
Regulatory Capital Event (as defined below) in respect of an ONB Trust occurs
and is continuing, Old National has the option to redeem the junior subordinated
debentures held by that ONB Trust, in whole, but not in part, at any time within
90 days thereafter. If the applicable ONB Trust is the holder of all outstanding
junior subordinated debentures, the proceeds of the redemption will be used by
the ONB Trust to redeem its capital securities and common securities in
accordance with their terms.
However, in the case of an occurrence of a Tax Event, an Investment Company
or a Regulatory Capital Event, if Old National can eliminate, within the 90 day
period, such event by taking some action, such as filing a form or making an
election, or pursuing some other similar reasonable measure which has no adverse
effect on Old National, the relevant ONB Trust or the holders of the capital
securities or the common securities, Old National will pursue that action
instead of redemption. Old National will have no right to redeem the junior
subordinated debentures while such ONB Trust or the property trustee is pursuing
any similar action based on its obligations under the trust agreement.
"Tax Event" means that the applicable ONB Trust will have received an
opinion of counsel (which may be counsel to Old National or an affiliate)
experienced in such matters to the effect that, as a result of any
- amendment to, or change (including any announced proposed change) in the
laws or any regulations under the laws of the United States or any
political subdivision or taxing authority, or
- official administrative pronouncement or judicial decision interpreting
or applying the laws or regulations stated above whether or not the
pronouncement or decision is issued to or in connection with a proceeding
involving Old National or the ONB Trust,
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in each case which amendment or change is effective or which proposed change,
pronouncement, action or decision is announced on or after the date of issuance
of the applicable series of junior subordinated debentures pursuant to the
applicable securities resolution, there is more than an insubstantial risk that:
- the ONB Trust is, or will be within 90 days of the date of the opinion of
counsel, subject to United States Federal income tax with respect to
income received or accrued on the junior subordinated debentures;
- interest Old National pays on the corresponding junior subordinated
debentures is not, or will not be within 90 days of the date of the
opinion of counsel, deductible, in whole or in part, for United States
Federal income tax purposes; or
- the ONB Trust is, or will be within 90 days of the date of the opinion of
counsel, subject to more than a de minimis amount of other taxes, duties
or other governmental charges.
"Investment Company Event" means that the applicable ONB Trust will have
received an opinion of counsel experienced in such matters to the effect that,
as a result of the occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any legislative body,
courts, governmental agency or regulatory authority on or after the date of
original issuance of the capital securities by the ONB Trust, the ONB Trust is
or will be considered an "investment company" that is required to be registered
under the Investment Company Act of 1940, as amended.
"Regulatory Capital Event" means that if Old National determines, based on
an opinion of counsel experienced in such matters, who may be an employee of Old
National or any of Old National's affiliates, that, as a result of:
- any amendment to, clarification of or change in applicable laws or
regulations or official interpretations thereof or policies with respect
thereto, or
- any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations,
there is more than an insubstantial risk that the capital securities will not
longer constitute Tier I Capital of Old National or any bank holding company of
which Old National is a subsidiary for purposes of the capital adequacy
guidelines or policies of the Board of Governors of the Federal Reserve System
or its successor as Old National's primary federal banking regulator.
Restrictions on Certain Payments. Unless otherwise provided in the
applicable prospectus supplement, Old National will promise, as to each series
of junior subordinated debentures issued to an ONB Trust, that it will not:
- declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of its
capital stock;
- make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any of its debt securities (including other junior
subordinated debentures) that rank equally with or junior in interest to
the junior subordinated debentures; or
- make any guarantee payments with respect to any of the debt securities of
any of its subsidiaries if the guarantee ranks equally with or junior in
interest to the junior subordinated debentures;
other than:
- dividends or distributions payable in its common stock;
- payments under any guarantee relating to the capital securities of an ONB
Trust;
- purchases of common stock related to the issuance of common stock under
any benefit plans for its directors, officers or employees; and
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- obligations under any dividend reinvestment plan or stock purchase plan.
These restrictions apply only if:
- at that time an event has occurred that (a) with the giving of notice or
the lapse of time, or both, would constitute an event of default under
the indenture with respect to the junior subordinated debentures of that
series and (b) Old National shall not have taken reasonable steps to cure
the event;
- the junior subordinated debentures are held by an ONB Trust and Old
National is in default with respect to payment of any obligations under
the guarantee relating to the capital securities of that ONB Trust; or
- Old National shall have given notice of its intention to begin an
interest deferral period and have not rescinded the notice, or any
deferral period is continuing.
REGARDING THE TRUSTEE
Bank One Trust Company, NA will act as trustee and registrar for
registration and transfer of debt securities issued under the indenture.
(Section 3.6) The trustee, in its individual or any other capacity, may make
loans to, accept deposits from, and perform services for Old National or its
affiliates, and may otherwise deal with Old National or its affiliates, as if it
were not the trustee.
DESCRIPTION OF CAPITAL SECURITIES
The following section describes the general terms and provisions of the
capital securities to which any prospectus supplement may relate. The particular
terms of the capital securities offered by any ONB Trust and the extent to which
any of these general provisions do not apply to its capital securities will be
described in the prospectus supplement relating to that ONB Trust and its
capital securities.
The capital securities will represent undivided beneficial ownership
interests in the assets of an ONB Trust. The holders of the capital securities
of an ONB Trust will be entitled to a preference over holders of the common
securities of such ONB Trust in certain circumstances with respect to
distributions and amounts payable on redemption or liquidation. Holders of
capital securities will also have certain other benefits as described in the
corresponding trust agreement.
Old National has summarized selected provisions of the capital securities
and each trust agreement below. This summary is not complete. The form of trust
agreement has been filed as an exhibit to the registration statement of which
this prospectus forms a part. You should read the form of trust agreement for
provisions that may be important to you. You should also consider applicable
provisions of the Trust Indenture Act. Each of the ONB Trusts is a legally
separate entity, and the assets of one are not available to satisfy the
obligations of the other.
GENERAL
The capital securities of a ONB Trust will rank equally, and payments on
the capital securities will be made pro rata, with the common securities of that
ONB Trust except as described under "-- Subordination of Common Securities."
Legal title to the junior subordinated debentures issued to an ONB Trust will be
held by the property trustee in trust for the benefit of the holders of the
capital securities of that ONB Trust and for Old National as holder of the
common securities of that ONB Trust. Each guarantee agreement Old National
executes for the benefit of the holders of an ONB Trust's capital securities
will be a guarantee on a junior subordinated basis with, but will not guarantee
payment of distributions or amounts payable on redemption or liquidation of,
such capital securities if the ONB Trust does not have funds available to make
such payments. See "Description of Guarantees."
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DISTRIBUTIONS
Distributions on the capital securities will be cumulative, will accumulate
from the date of original issuance and will be payable on the dates specified in
the applicable prospectus supplement. Except as specified in the applicable
prospectus supplement, in the event that any date on which distributions are
payable on the capital securities is not a business day, payment of the
distribution will be made on the next succeeding day that is a business day
(without any interest or other payment in respect of the delay), with the same
force and effect as if made on the originally specified date. However, if the
next business day is in the next calendar year, payment of distributions will be
made on the preceding business day. Each date on which distributions are payable
is referred to in this prospectus as a distribution date.
An ONB Trust's capital securities represent undivided beneficial ownership
interests in the assets of that ONB Trust. The distributions on each capital
security will be payable at a rate specified in the prospectus supplement for
that capital security. The amount of distributions payable for any period will
be computed on the basis of a 360-day year of twelve 30-day months unless
otherwise specified in the applicable prospectus supplement. Distributions to
which holders of capital securities are entitled will accumulate interest at the
rate per annum specified in the applicable prospectus supplement. Distributions
on capital securities as used in this prospectus includes these additional
distributions unless otherwise stated.
The revenue of each ONB Trust available for distribution to holders of its
capital securities will be limited to payments it receives from Old National
under the junior subordinated debentures it owns. Each ONB Trust will invest the
proceeds from the issuance and sale of its common securities and capital
securities in the corresponding junior subordinated debentures, and it will have
no other assets. See "Description of Debt Securities -- Certain Provisions
Relating to Junior Subordinated Debentures Issued to the ONB Trusts." If Old
National does not make interest payments on the junior subordinated debentures
held by an ONB Trust, the property trustee will not have funds available to pay
distributions on the capital securities of that ONB Trust. Old National has
guaranteed the payment of distributions (if and to the extent the ONB Trust has
funds legally available for the payment of distributions and cash sufficient to
make the payments) on a limited basis as set forth herein under "Description of
Guarantees."
Old National may defer interest on any series of junior subordinated
debentures for a specified number of consecutive interest payment periods. See
"Description of Debt Securities -- Certain Provisions Relating to Junior
Subordinated Debentures Issued to the ONB Trustee -- Option to Defer Interest
Payment Date." If Old National defers interest payments on the corresponding
junior subordinated debentures held by an ONB Trust, the ONB Trust will defer
payments on its capital securities.
Distributions on the capital securities will be payable to the holders as
they appear on the register of the ONB Trust on the relevant record dates,
which, as long as the capital securities remain in book-entry form, will be one
business day prior to the relevant distribution date. Subject to any applicable
laws and regulations and to the provisions of the applicable trust agreement,
each distribution payment will be made as described under "Book-Entry Issuance."
In the event any capital securities are not in book-entry form, the relevant
record date for such capital securities shall be a date at least 15 days prior
to the relevant distribution date, as specified in the applicable prospectus
supplement.
PAYMENT OF EXPENSES
Pursuant to the indenture, Old National has agreed to pay all debts and
obligations (other than distributions on the common securities and capital
securities) and all costs and expenses of the ONB Trusts and to pay any and all
taxes, duties, assessments or other governmental charges (other than United
States withholding taxes) imposed by the United States or any other taxing
authority. This includes, but is not limited to, all costs and expenses relating
to the organization of the ONB Trusts, the fees and expenses of the property
trustee, the Delaware trustee and the administrators and all costs and expenses
relating to the operation of the ONB Trusts. As a result, the net amounts
received and retained by an ONB Trust after paying these fees, expenses, debts
and obligations will be equal to the amounts the ONB Trust would have received
and retained had no fees, expenses, debts and obligations been incurred
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by or imposed on it. Old National's promise to pay these obligations is for the
benefit of, and shall be enforceable by, any creditor to whom the fees,
expenses, debts and obligations are owed, whether or not the creditor has
received notice of the promise. Any creditor may enforce these obligations
directly against Old National, and Old National has agreed to irrevocably waive
any right or remedy that would otherwise require that any creditor take any
action against the ONB Trust or any other person before proceeding against Old
National. Old National will execute such additional agreements as may be
necessary to give full effect to these promises.
REDEMPTION OR EXCHANGE
If Old National repays or redeems, in whole or in part, any junior
subordinated debentures that have been issued to an ONB Trust, whether at
maturity or earlier, the proceeds from the repayment or redemption shall be
applied by the property trustee to redeem a like amount of the capital
securities and the common securities of that ONB Trust. The property trustee
will give you at least 30 but no more than 60 days notice, and the redemption
price will be equal to the sum of:
- the aggregate liquidation amount of the capital securities and common
securities being redeemed; plus
- accumulated but unpaid distributions on to the redeemed capital
securities and common securities to the date of redemption; plus
- the related amount of the premium, if any, that Old National pays upon
the concurrent redemption of corresponding junior subordinated
debentures.
See "Description of Debt Securities -- Certain Provisions Relating to
Junior Subordinated Debentures Issued to the ONB Trusts -- Redemption."
If Old National is repaying or redeeming less than all of any series of
junior subordinated debentures held by an ONB Trust on a redemption date, then
the proceeds from the repayment or redemption shall be allocated to redeem the
capital securities and common securities issued by that ONB Trust, pro rata. The
amount of premium, if any, that Old National pays to redeem all or any part of
any series of junior subordinated debentures held by an ONB Trust will also be
allocated pro rata to the redemption of the capital securities and common
securities issued by that ONB Trust.
Old National will have the right to redeem any series of junior
subordinated debentures:
- subject to the conditions described under "Description Of Debt
Securities -- Certain Provisions Relating to Junior Subordinated
Debentures Issued to the ONB Trusts -- Redemption"; or
- as may be otherwise specified in the applicable prospectus supplement.
Old National has the right to terminate an ONB Trust at any time and, after
satisfaction of any liabilities to creditors of that ONB Trust as provided by
applicable law, to cause the junior subordinated debentures owned by that ONB
Trust to be distributed to the holders of the capital securities and common
securities in liquidation of that ONB Trust.
If provided in the applicable prospectus supplement, Old National will have
the right to extend or shorten the maturity of any series of junior subordinated
debentures at the time that Old National exercises Old National's right to elect
to terminate an ONB Trust and cause the junior subordinated debentures held by
that ONB Trust to be distributed to the holders of the capital securities and
common securities in liquidation of that ONB Trust. However, Old National can
extend the maturity only if the conditions specified in the applicable
prospectus supplement are met at the time the election is made and at the time
of the extension.
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After the liquidation date fixed for any distribution of junior
subordinated debentures to the holders of any series of capital securities:
- that series of capital securities will no longer be deemed to be
outstanding;
- The Depository Trust Company ("DTC") or its nominee, as the record holder
of the capital securities, will receive a registered global certificate
or certificates representing the junior subordinated debentures to be
delivered in the distribution;
- Old National shall use its reasonable efforts to list the junior
subordinated debentures on the New York Stock Exchange or on such other
exchange, interdealer quotation system or self-regulatory organization as
such capital securities are then listed; and
- any certificates representing that series of capital securities not held
by DTC or its nominee will be deemed to represent the junior subordinated
debentures having a principal amount equal to the stated liquidation
amount of that series of capital securities, bearing accrued and unpaid
interest in an amount equal to the accrued and unpaid distributions on
that series of capital securities until the certificates are presented to
the administrators or their agent for transfer or reissuance.
Old National cannot predict the market prices for the capital securities or
the junior subordinated debentures that may be distributed in exchange for
capital securities. As a result, the capital securities that an investor may
purchase, or the junior subordinated debentures that an investor may receive on
termination and liquidation of an ONB Trust, may trade at a lower price than the
investor paid to purchase the capital securities.
REDEMPTION AND EXCHANGE PROCEDURES
Any capital securities that are redeemed on any redemption date will be
redeemed with the proceeds received by the ONB Trust from the contemporaneous
redemption of the junior subordinated debentures held by that ONB Trust.
Redemptions of the capital securities will be made and the redemption price will
be payable on each redemption date only to the extent that the related ONB Trust
has cash on hand available for the payment of such redemption price. See
"-- Subordination of Common Securities."
If an ONB Trust gives a notice of redemption in respect of its capital
securities, then, by 12:00 noon, New York City time, on the redemption date, the
property trustee will deposit irrevocably with DTC funds sufficient to pay the
applicable redemption price to the extent funds are available. The property
trustee will give DTC irrevocable instructions and authority to pay the
redemption price to the holders of such capital securities. See "Book-Entry
Issuance." If the capital securities are no longer in book-entry form, the
property trustee, to the extent funds are available, will irrevocably deposit
with the paying agent for the capital securities funds sufficient to pay the
applicable redemption price and will give the paying agent irrevocable
instructions and authority to pay the redemption price to the holders of the
capital securities upon surrender of the certificates evidencing their capital
securities.
Except as specified in the applicable prospectus supplement, in the event
that any date fixed for redemption of capital securities is not a business day,
then payment of the redemption price payable on such date will be made on the
next succeeding day which is a business day (and without any interest or other
payment in respect of any delay). However, if the next business day is in the
next calendar year, the redemption price will be payable on the preceding
business day. In the event that payment of the redemption price in respect of
capital securities called for redemption is improperly withheld or refused and
not paid either by the ONB Trust or by Old National pursuant to the guarantee as
described under "Description of Guarantees," then:
- distributions on those capital securities will continue to accrue at the
then applicable rate from the redemption date originally established by
the ONB Trust for those capital securities to the date the redemption
price is actually paid; and
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- the actual payment date will be the date fixed for redemption for
purposes of calculating the redemption price.
Payment of the redemption price on the capital securities and any
distribution of corresponding junior subordinated debentures to holders of
capital securities will be made to the applicable record holders thereof as they
appear on the register for the capital securities on the relevant record date.
The record date will be one business day prior to the relevant redemption date
or liquidation date, as applicable, except that if any capital securities are
not in book-entry form, the relevant record date for those capital securities
shall be a date at least 15 days prior to the redemption date or liquidation
date, as applicable, as specified in the applicable prospectus supplement.
If an ONB Trust redeems less than all of its capital securities and common
securities, then the aggregate liquidation amount of capital securities and
common securities to be redeemed will be allocated pro rata between the capital
securities and the common securities based upon their respective aggregate
liquidation amounts. Within 60 days of the redemption date, the property trustee
will select the capital securities to be redeemed from among the outstanding
capital securities not previously called for redemption. The property trustee
may use any method of selection it deems to be fair and reasonable.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of capital securities or
common securities to be redeemed at the holder's registered address.
Unless Old National defaults in payment of the redemption price on the
junior subordinated debentures, on and after the redemption date, interest
ceases to accrue on the junior subordinated debentures or portions thereof (and
distributions cease to accrue on the capital securities or portions thereof
issued by the ONB Trust that holds such junior subordinated debentures) called
for redemption.
If notice of redemption has been given and funds deposited as required,
then upon the date of such deposit all rights of the holders of the capital
securities called for redemption will cease, except the right to receive the
redemption price, but without interest on the redemption price, and the capital
securities will cease to be outstanding.
SUBORDINATION OF COMMON SECURITIES
Payment of distributions on, and the redemption price of, each ONB Trust's
capital securities and common securities, as applicable, generally shall be made
pro rata based upon their respective aggregate liquidation amounts. However, if
on any distribution date or redemption date an event of default with respect to
any junior subordinated debenture held by an ONB Trust has occurred and is
continuing, then:
- We shall not pay any distribution on, or redemption price of, any of the
ONB Trust's common securities, and we can not make any other payment on
account of the redemption, liquidation or other acquisition of such
common securities, unless
-- all accumulated and unpaid distributions on all of the ONB Trust's
outstanding capital securities are paid in full in cash for all
distribution periods terminating on or prior to any payment on the
common securities,
-- in the case of a payment of the redemption price, the full amount of
the redemption price on all of the ONB Trust's outstanding capital
securities then called for redemption shall have been paid or provided
for, and
-- all funds available to the property trustee shall first be applied to
the payment in full in cash of all distributions on, or redemption
price of, the ONB Trust's capital securities then due and payable.
In the case of any event of default with respect to any junior subordinated
debentures held by an ONB Trust, Old National (as holder of the ONB Trust's
common securities) will be deemed to have
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waived any right to act with respect to the event of default under the
applicable trust agreement until the effect of all events of default with
respect to such capital securities has been cured, waived or otherwise
eliminated. Until any events of default under the applicable trust agreement
with respect to the capital securities have been cured, waived or otherwise
eliminated, the property trustee is required to act solely on behalf of the
holders of the capital securities and not on Old National's behalf as holder of
the ONB Trust's common securities, and only the holders of such capital
securities will have the right to direct the property trustee to act on their
behalf.
LIQUIDATION DISTRIBUTION UPON TERMINATION
Pursuant to each trust agreement, each ONB Trust will automatically
terminate upon the expiration of its term or on the first to occur of:
- specified events relating to Old National's bankruptcy, dissolution or
liquidation;
- Old National's written direction to the property trustee, as depositor,
to dissolve the ONB Trust and distribute the corresponding junior
subordinated debentures to the holders of the capital securities in
exchange for the capital securities (which direction is optional and
wholly within Old National's discretion as depositor);
- the redemption of all of the ONB Trust's capital securities and common
securities; and
- the entry of an order for the dissolution of the ONB Trust by a court of
competent jurisdiction.
If an early termination occurs for any reason other than the redemption of
all of the capital securities and common securities, the ONB Trust will be
liquidated by the property trustee as expeditiously as the issuer trustees
determine to be possible. Except as provided in the next sentence, the issuer
trustees will distribute (after satisfaction of any liabilities to creditors of
such ONB Trust as provided by applicable law) to the holders of such capital
securities and common securities a like amount of the corresponding junior
subordinated debentures. However, if such a distribution is determined by the
property trustee not to be practical, the holders of the capital securities will
be entitled to receive out of the assets of the ONB Trust available for
distribution to holders (after satisfaction of any liabilities to creditors of
the ONB Trust as provided by applicable law) a liquidation distribution in an
amount equal to the aggregate of the liquidation amount plus accrued and unpaid
distributions thereon to the date of payment. If the liquidation distribution
can be paid only in part because the ONB Trust has insufficient assets available
to pay in full the aggregate liquidation distribution, then the amounts payable
directly by the ONB Trust on its capital securities will be paid on a pro rata
basis.
As the holder of the ONB Trust's common securities, Old National will be
entitled to receive distributions upon any liquidation pro rata with the holders
of its capital securities. However, if an event of default relating to the
junior subordinated debentures held by an ONB Trust has occurred and is
continuing, that ONB Trust's capital securities will have a priority over its
common securities.
ADDITIONAL AMOUNTS
If at any time an ONB Trust 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 Old
National will be required to pay additional amounts on the junior subordinated
debt securities. The additional amounts will be sufficient so that the net
amounts received and retained by the ONB Trust after paying any such taxes,
duties, assessments or other governmental charges will be not less than the
amounts the ONB Trust would have received had no such taxes, duties, assessments
or other governmental charges been imposed. This means that the ONB Trust will
be in the same position it would have been if it did not have to pay such taxes,
duties, assessments or other charges.
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EVENTS OF DEFAULT; NOTICE
Any one of the following events constitutes a "trust event of default"
under each trust agreement with respect to the capital securities issued by an
ONB Trust thereunder (whatever the reason for the trust event of default):
- an event of default with respect to the junior subordinated debentures
issued under the indenture to the ONB Trust occurs (see "Description of
Debt Securities -- Defaults");
- the property trustee does not pay any distribution within 30 days of its
due date, provided that no deferral period is continuing;
- the property trustee does not pay any redemption price of any trust
security when it becomes due and payable;
- the default by an issuer trustee in the performance, or breach, in any
material respect, of any covenant or warranty of the issuer trustees in
the trust agreement (other than a default in the payment of any
distribution or any redemption price as provided above), and continuation
of that default or breach for a period of 90 days after there has been
given, by registered or certified mail, to the defaulting issuer trustee
by the holders of at least 25% in aggregate liquidation preference of the
outstanding capital securities of the applicable ONB Trust, a written
notice specifying the default or breach and requiring it to be remedied
and stating that the notice is a "notice of default" under the trust
agreement; or
- the property trustee files for bankruptcy or certain other events in
bankruptcy or insolvency occur and a successor property trustee is not
appointed within 60 days.
Within 90 days after learning of the occurrence of any trust event of
default, the property trustee is required to transmit notice of the trust event
of default to the holders of the ONB Trust's capital securities, to the
administrators and to Old National, as depositor, unless the trust event of
default has been cured or waived.
If an event of default with respect to a corresponding junior subordinated
debenture has occurred and is continuing, the capital securities shall have a
preference over the common securities upon termination of the ONB Trust as
described above. See "-- Liquidation Distribution upon Termination." The
existence of a trust event of default with respect to an ONB Trust does not
entitle the holders of capital securities issued by that ONB Trust to cause the
redemption of the capital securities.
REMOVAL OF ISSUER TRUSTEES
Old National as the holder of the common securities of an ONB Trust may
remove either issuer trustee at any time, unless an event of default with
respect to junior subordinated debentures held by that ONB Trust has occurred
and is continuing. If a trust event of default resulting from an event of
default with respect to junior subordinated debentures held by that ONB Trust
has occurred and is continuing, the property trustee and the Delaware trustee
may be removed by the holders of a majority in liquidation amount of the
outstanding capital securities of that ONB Trust. In no event will the holders
of the capital securities have the right to vote to appoint, remove or replace
the administrators: that right belongs exclusively to Old National as the holder
of the common securities. No resignation or removal of an issuer trustee and no
appointment of a successor trustee will be effective until the successor trustee
accepts its appointment in accordance with the provisions of the applicable
trust agreement.
MERGER OR CONSOLIDATION OF ISSUER TRUSTEES
Any corporation into which the property trustee or the Delaware trustee
that is not a natural person may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which such trustee shall be a party, or any corporation
succeeding
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to all or substantially all the corporate trust business of such trustee, shall
be the successor of such trustee under each trust agreement, provided such
corporation shall be otherwise qualified and eligible.
MERGERS, CONSOLIDATIONS, CONVERSIONS, AMALGAMATIONS OR REPLACEMENTS OF THE ONB
TRUSTS
An ONB Trust may not merge or consolidate with or into, convert into,
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
as described below, as described in "-- Liquidation Distribution upon
Termination" or as described in the prospectus supplement with respect to the
capital securities. An ONB Trust may, at Old National's request, with the
consent the holders of a majority of its capital securities, merge or
consolidate with or into, convert into, amalgamate or 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:
- the successor entity either (a) expressly assumes all of the obligations
of the ONB Trust with respect to its capital securities or (b)
substitutes for the capital securities other successor securities having
substantially the same terms as the capital securities so long as the
successor securities rank the same as the capital securities rank in
priority with respect to distributions and payments upon liquidation,
redemption and otherwise;
- Old National expressly appoints a trustee of such successor entity
possessing the same powers and duties as the property trustee as the
holder of the corresponding junior subordinated debentures;
- the successor securities are listed, or any successor securities will be
listed upon notification of issuance, on any national securities exchange
or other organization on which the capital securities are then listed, if
any;
- the merger, consolidation, conversion, amalgamation, replacement,
conveyance, transfer or lease does not cause the capital securities
(including any successor securities) to be downgraded by a nationally
recognized statistical rating organization;
- the merger, consolidation, conversion, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the capital securities
(including any successor securities) in any material respect;
- the successor entity has a purpose substantially similar to that of the
ONB Trust;
- prior to the merger, consolidation, conversion, amalgamation,
replacement, conveyance, transfer or lease, the property trustee has
received an opinion from independent counsel to the ONB Trust experienced
in such matters to the effect that:
-- the merger, consolidation, conversion, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the capital securities
(including any successor securities) in any material respect, and
-- following the merger, consolidation, conversion, amalgamation,
replacement, conveyance, transfer or lease, neither the ONB Trust nor
such successor entity will be required to register as an investment
company under the Investment Company Act; and
- Old National or any permitted successor or assignee owns all of the
common securities of the successor entity and guarantees the obligations
of the successor entity under the successor securities at least to the
extent provided by the guarantee.
Notwithstanding the general provisions described above, an ONB Trust shall not,
except with the consent of holders of 100% in liquidation amount of the capital
securities, merge with or into, consolidate, convert into, amalgamate, or be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such merger, consolidation,
conversion, amalgamation, replacement, conveyance, transfer or
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lease would cause the ONB Trust or the successor entity to be classified as
other than a grantor trust for United States federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF EACH TRUST AGREEMENT
The holders of the capital securities will have only the voting rights
described below and under "Description of Guarantees -- Amendments and
Assignment," plus any voting rights required by law.
Each trust agreement may be amended from time to time by Old National and
the property trustee, without the consent of the holders of the capital
securities:
- to cure any ambiguity, correct or supplement any provisions in the trust
agreement that may be inconsistent with any other provision, or to
address matters or questions arising under the trust agreement in a way
which is consistent with the other provisions of the trust agreement; or
- to modify, eliminate or add to any provisions of the trust agreement if
necessary to ensure that the ONB Trust will be classified for United
States federal income tax purposes as a grantor trust or to ensure that
the ONB Trust will not be required to register as an "investment company"
under the Investment Company Act.
However, in the case of the first clause, the action must not adversely
affect in any material respect the interests of any holder of capital securities
and common securities. Any amendment of the trust agreement becomes effective
when Old National gives notice of the amendment to the holders of the capital
securities and common securities.
Each trust agreement may be amended by Old National and the property
trustee with:
- the consent of holders representing not less than a majority (based upon
liquidation amounts) of the outstanding capital securities and common
securities; and
- receipt by the property trustee of an opinion of counsel experienced in
such matters to the effect that the amendment or the exercise of any
power granted to the issuer trustees in accordance with the amendment
will not affect the ONB Trust's status as a grantor trust for United
States federal income tax purposes or the ONB Trust's exemption from
status as an "investment company" under the Investment Company Act.
However, without the consent of each holder of capital securities and
common securities, no amendment may:
- change the amount or timing of any distribution on the capital securities
and common securities or otherwise adversely affect the amount of any
distribution required to be made in respect of the capital securities and
common securities as of a specified date; or
- restrict the right of a holder of capital securities and common
securities to sue for the enforcement of any distribution payment.
The property trustee is required to notify each holder of capital
securities whenever the property trustee is notified of a default with respect
to the corresponding junior subordinated debentures. Furthermore, so long as any
junior subordinated debentures are held by the property trustee, the issuer
trustees are not permitted to:
- direct the time, method and place of conducting any proceeding for any
remedy available to the trustee under the indenture, or execute any trust
or power conferred on the property trustee with respect to the junior
subordinated debentures;
- waive any past default that is waivable under the indenture governing the
junior subordinated debentures;
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- exercise any right to rescind or annul a declaration that the principal
of all the junior subordinated debentures shall be due and payable; or
- give a required consent to any amendment, modification or termination of
the indenture, the applicable securities resolution or the junior
subordinated debentures
unless, in each case, they first obtain the approval of the holders of a
majority in aggregate liquidation amount of all outstanding capital securities.
However, where the indenture requires the consent of each affected holder of
junior subordinated debentures, the property trustee cannot give the consent
without first obtaining the consent of each holder of the capital securities.
The property trustee cannot revoke any action previously authorized or approved
by a vote of the holders of the capital securities except by subsequent vote of
the holders of the capital securities.
In addition to obtaining approval of the holders of the capital securities
as described above, the issuer trustees are required to obtain an opinion of
counsel to the effect that the proposed action will not cause the ONB Trust to
be classified as a corporation for United States federal income tax purposes.
Any required approval of holders of capital securities may be given either
at a meeting of holders of capital securities or pursuant to a written consent.
The property trustee must notify record holders of capital securities of any
meeting in the manner set forth in each trust agreement.
No vote or consent of the holders of capital securities will be required
for an ONB Trust to redeem and cancel its capital securities in accordance with
the applicable trust agreement.
Whenever holders of capital securities are entitled to vote or consent
under any of the circumstances described above, neither Old National nor the
issuer trustees will be permitted to vote. For purposes of any vote or consent,
any of the capital securities that Old National owns (or that are owned by the
issuer trustees or Old National's affiliates) will be treated as if they were
not outstanding.
PAYMENT AND PAYING AGENCY
The depositary for the capital securities will make payments in respect of
the capital securities by crediting the relevant accounts at the depositary on
the applicable distribution dates. If any capital securities of an ONB Trust are
not held by the depositary, then the paying agent will mail checks to registered
holders of the capital securities as their addresses appear on its register.
Unless otherwise specified in the applicable prospectus supplement, the paying
agent shall initially be the property trustee and any co-paying agent chosen by
the property trustee and acceptable to the administrators and to Old National.
The paying agent can resign upon 30 days' written notice to the property trustee
and to Old National. If the property trustee resigns as paying agent, the
property trustee will appoint a bank or trust company acceptable to the
administrators to act as paying agent.
REGISTRAR AND TRANSFER AGENT
Unless otherwise specified in the applicable prospectus supplement, the
property trustee will act as registrar and transfer agent for the capital
securities.
Each ONB Trust will register transfers of its capital securities without
charge, but will require payment of any tax or other governmental charges that
may be imposed in connection with any transfer or exchange. The ONB Trusts will
not register transfers of their capital securities after the relevant capital
securities are called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The property trustee undertakes to perform only the duties that are
specifically set forth in each trust agreement, other than during the
continuance of a trust event of default. After a trust event of default, the
property trustee is required to exercise the same degree of care and skill as a
prudent person would exercise or use in the conduct of his or her own affairs.
Subject to this provision, the property trustee has
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no obligation to exercise any of its powers under the applicable trust agreement
at the request of any holder of capital securities unless it is offered
reasonable indemnity against the costs, expenses and liabilities that it might
incur by doing so. If no trust event of default has occurred and is continuing
and the property trustee is required to decide between alternative courses of
action, construe ambiguous provisions in the applicable trust agreement or is
unsure of the application of any provision of the applicable trust agreement,
then Old National will have the right to tell the property trustee which action
to take unless the matter is one on which holders of capital securities are
entitled to vote. If Old National doesn't give any directions, the property
trustee will take whatever action it deems advisable and in the best interests
of the holders of the capital securities and common securities. The property
trustee will have no liability except for its own bad faith, negligence or
willful misconduct.
MISCELLANEOUS
The property trustee and the administrators are authorized and directed to
operate the ONB Trusts in such a way that:
- no ONB Trust will be:
-- deemed to be an "investment company" required to be registered under
the Investment Company Act or
-- classified as an association taxable as a corporation for United States
federal income tax purposes; and
- the junior subordinated debentures will be treated as Old National's
indebtedness for United State federal income tax purposes.
Holders of the capital securities have no preemptive or similar rights.
No ONB Trust may borrow money or issue debt or mortgage or pledge any of
its assets.
DESCRIPTION OF GUARANTEES
When the capital securities and common securities of any series are issued
by an ONB Trust, Old National will execute and deliver a guarantee agreement for
the benefit of the holders of the capital securities of that series. The
guarantee agreement will be qualified as an indenture under the Trust Indenture
Act. Bank One Trust Company, NA will act as guarantee trustee under each
guarantee for the purposes of compliance with the Trust Indenture Act, and will
hold the guarantee for the benefit of the holders of the related ONB Trust's
capital securities.
Old National has summarized certain provisions of the guarantees below.
This summary is not complete. The form of the guarantee agreement has been filed
as an exhibit to the registration statement of which this prospectus forms a
part, and you should read the guarantee agreement for provisions that may be
important to you. Reference in this summary to capital securities means that ONB
Trust's capital securities to which a guarantee relates.
GENERAL
Old National will promise to pay the guarantee payments to the holders of
the capital securities, as and when due, regardless of any defense, right of
set-off or counterclaim that the ONB Trust may have or assert other than the
defense of payment. Old National's obligations under the guarantee will rank
equal to the corresponding junior subordinated debentures and will be junior and
subordinated to the Senior Debt.
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The guarantee payments include the following, to the extent not paid by or on
behalf of the related ONB Trust:
- any accumulated and unpaid distributions required to be paid on the
capital securities, but only if and to the extent that the applicable ONB
Trust has funds on hand available for the distributions at that time;
- the redemption price with respect to any capital securities called for
redemption, if and to the extent that the applicable ONB Trust has funds
on hand available to pay the redemption price at that time; or
- upon a voluntary or involuntary termination, winding up or liquidation of
an ONB Trust (unless the corresponding junior subordinated debentures are
distributed to the holders of the capital securities), the lesser of:
-- the liquidation distribution; and
-- the amount of assets of the applicable ONB Trust remaining available
for distribution to holders of capital securities.
Old National's obligation to make a guarantee payment may be satisfied
either by Old National's direct payment of the required amounts to the holders
of the applicable capital securities or by causing the ONB Trust to pay them.
Each guarantee will be an irrevocable guarantee on a junior subordinated
basis of the related ONB Trust's obligations in respect of the capital
securities, but will apply only to the extent that the related ONB Trust has
funds sufficient to make the required payments. If Old National does not make
interest payments on the junior subordinated debentures held by an ONB Trust,
the ONB Trust will not be able to pay distributions on its capital securities.
Old National has also agreed to guarantee the obligations of the ONB Trusts
with respect to the common securities to the same extent as the guarantee to
holders of the capital securities. However, if there is an event of default with
respect to a corresponding junior subordinated debenture, holders of capital
securities issued by that ONB Trust will have priority over holders of common
securities issued by that ONB Trust.
STATUS OF THE GUARANTEES
Each guarantee will constitute Old National's unsecured obligation and will
rank subordinate and junior in right of payment to all of Old National's Senior
Debt.
Each guarantee will rank equally with all other guarantees Old National
issues relating to capital securities issued by the ONB Trusts. Each guarantee
will constitute a guarantee of payment and not of collection (i.e., the
guaranteed party may institute a legal proceeding directly against Old National
as the guarantor to enforce its rights under the guarantee without first suing
anyone else). Each guarantee will be held for the benefit of the holders of the
related capital securities. Each guarantee will be discharged only by payment of
the guarantee payments in full (to the extent not paid by the ONB Trust) or by
distribution of the corresponding junior subordinated debentures to the holders
of the capital securities. None of the guarantees places a limitation on the
amount of additional Senior Debt or subordinated debt that Old National may
incur. Old National expects from time to time to incur additional indebtedness
constituting Senior Debt.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not adversely affect the rights
of holders of the related capital securities in any material respect (in which
case no vote will be required), no guarantee may be amended without the prior
approval of the holders of not less than a majority of the aggregate liquidation
amount of the related outstanding capital securities. The manner of obtaining
any required approval will be
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as set forth under "Description of Capital Securities -- Voting Rights;
Amendment of Each Trust Agreement." All guarantees and agreements contained in
each guarantee agreement will bind Old National's successors, assigns,
receivers, trustees and representatives and will benefit the holders of the
related capital securities then outstanding.
EVENTS OF DEFAULT
Old National will be in default under any guarantee agreement if (a) Old
National doesn't make required payments or (b) Old National is notified that it
has not performed some other obligation and have not cured that failure within
90 days.
The holders of a majority in aggregate liquidation amount of the related
capital securities have the right:
- to direct the time, method and place of conducting any proceeding for any
remedy available to the guarantee trustee in respect of the guarantee
agreement; or
- to direct the exercise of any power conferred upon the guarantee trustee
under the guarantee agreement.
Holders of a majority in aggregate liquidation amount of the related capital
securities also have the right to waive any past event of default and its
consequences.
Any holder of the capital securities may institute a legal proceeding
directly against Old National to enforce the ONB Trust's rights under the
guarantee agreement without first instituting a legal proceeding against the ONB
Trust, the guarantee trustee or anyone else.
As guarantor, Old National is required to file annually with the guarantee
trustee a certificate stating whether or not Old National is in compliance with
all the conditions and covenants applicable to Old National under the guarantee
agreement.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The guarantee trustee will perform only the duties that are specifically
set forth in each guarantee agreement, other than during the occurrence and
continuance of a default by Old National in performance of any guarantee. After
Old National defaults and while the default continues, the guarantee trustee
must exercise the same degree of care and skill as a prudent person would
exercise or use in the conduct of his or her own affairs. Subject to this
provision and so long as no default under the applicable guarantee agreement has
occurred and is continuing, the guarantee trustee is under no obligation to
exercise any of the powers vested in it by any guarantee agreement at the
request of any holder of any capital securities unless it is offered reasonable
indemnity against the costs, expenses and liabilities that it might incur by
doing so.
TERMINATION OF THE GUARANTEES
Each guarantee will terminate upon full payment of the redemption price of
the related capital securities, upon full payment of the amounts payable upon
liquidation of the related ONB Trust or upon distribution of corresponding
junior subordinated debentures to the holders of the related capital securities.
Each guarantee will continue to be effective or will be reinstated, as the case
may be, if at any time any holder of the related capital securities must restore
payment of any sums paid under the capital securities or the guarantee.
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RELATIONSHIP AMONG THE CAPITAL SECURITIES,
THE CORRESPONDING JUNIOR SUBORDINATED DEBENTURES
AND THE GUARANTEES
FULL AND UNCONDITIONAL GUARANTEE
Old National irrevocably guarantees payments of distributions and other
amounts due on the capital securities (to the extent the applicable ONB Trust
has funds available for the payment of the distributions) as and to the extent
set forth under "Description of Guarantees." Taken together, Old National's
obligations under each series of junior subordinated debentures, the related
securities resolution, the indenture, the related trust agreement and the
related guarantee agreement provide, in the aggregate, a full, irrevocable and
unconditional guarantee of payments of distributions and other amounts due on
the related series of capital securities. No single document standing alone or
operating in conjunction with fewer than all of the other documents constitutes
the full guarantee. It is only the combined operation of these documents that
has the effect of providing a full, irrevocable and unconditional guarantee of
the ONB Trust's obligations under the capital securities. See "The ONB Trusts,"
"Description of Capital Securities," and "Description of Debt
Securities -- Certain Provisions Relating to Junior Subordinated Debentures
Issued to the ONB Trusts."
If and to the extent that Old National does not make payments on any series
of corresponding junior subordinated debentures, the ONB Trust will not pay
distributions or other amounts due on its capital securities. The guarantees do
not cover payment of distributions when the related ONB Trust does not have
sufficient funds to pay the distributions. In that event, the remedy for a
holder of the capital securities issued by that trust is to institute a legal
proceeding directly against Old National for enforcement of payment of the
distributions to such holder. Old National's obligations under each guarantee
are subordinate and junior in right of payment to all of Old National's Senior
Debt.
SUFFICIENCY OF PAYMENTS
As long as Old National makes payments when due on each series of junior
subordinated debentures, those payments will be sufficient to cover
distributions and other payments due on the related capital securities. This is
primarily because:
- the aggregate principal amount of each series of junior subordinated
debentures will be equal to the sum of the aggregate stated liquidation
amount of the related capital securities and related common securities;
- the interest rate and interest and other payment dates on each series of
junior subordinated debentures will match the distribution rate and
distribution and other payment dates for the related capital securities;
- Old National, as issuer of the junior subordinated debentures, have
promised to pay any and all costs, expenses and liabilities of each ONB
Trust except the ONB Trust's obligations under its capital securities;
and
- each trust agreement provides that the ONB Trust will not engage in any
activity that is not consistent with the limited purposes of the ONB
Trust.
Old National has the right to set-off any payment Old National is otherwise
required to make under the indenture if and to the extent Old National has
already made, or are concurrently making, a payment under the related guarantee
agreement.
ENFORCEMENT RIGHTS OF HOLDERS OF CAPITAL SECURITIES
A holder of any capital security may institute a legal proceeding directly
against Old National to enforce its rights under the related guarantee agreement
without first instituting a legal proceeding against the guarantee trustee, the
related ONB Trust or anyone else.
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Old National's default or event of default under any other senior or
subordinated indebtedness would not necessarily constitute a trust event of
default. However, in the event of payment defaults under, or acceleration of,
Old National's Senior Debt, the subordination provisions of the applicable
securities resolution will provide that no payments may be made in respect of
the corresponding junior subordinated debentures until the Senior Debt has been
paid in full or any payment default thereunder has been cured or waived. Old
National's failure to make required payments on any series of corresponding
junior subordinated debentures would constitute a trust event of default.
LIMITED PURPOSE OF ONB TRUSTS
Each ONB Trust's capital securities evidence undivided beneficial ownership
interests in the assets of that ONB Trust, and each ONB Trust exists for the
sole purposes of issuing its capital securities and common securities, investing
the proceeds in junior subordinated debentures and engaging in only those other
activities necessary, convenient or incidental to those purposes. A principal
difference between the rights of a holder of a capital security and a holder of
a corresponding junior subordinated debenture is that the holder of a junior
subordinated debenture is entitled to receive from Old National the principal
amount of and interest accrued on the junior subordinated debenture held, while
the holder of a capital security is entitled to receive distributions from the
ONB Trust (or from Old National under the applicable guarantee agreement) if and
to the extent the ONB Trust has funds available for the payment of the
distributions.
RIGHTS UPON TERMINATION
Upon any voluntary or involuntary termination of any ONB Trust involving
the liquidation of the junior subordinated debentures held by that ONB Trust,
the holders of the related capital securities will be entitled to receive the
liquidation distribution in cash, out of assets of the ONB Trust (and after
satisfaction of creditors of the ONB Trust as provided by applicable law). See
"Description of Capital Securities -- Liquidation Distribution upon
Termination." If Old National becomes subject to any voluntary or involuntary
liquidation or bankruptcy, the property trustee, as holder of the corresponding
junior subordinated debentures, would be one of Old National's junior
subordinated creditors. The property trustee would be subordinated in right of
payment to all of Old National's Senior Debt, but it would be entitled to
receive payment in full of principal and interest before Old National's
stockholders receive payments or distributions. Old National is the guarantor
under each guarantee agreement and pursuant to the indenture, as borrower, have
agreed to pay all costs, expenses and liabilities of each ONB Trust (other than
the ONB Trust's obligations to the holders of its capital securities).
Accordingly, in the event of Old National's liquidation or bankruptcy the
positions of a holder of capital securities and of a holder of corresponding
junior subordinated debentures are expected to be substantially the same
relative to Old National's other creditors and to Old National's stockholders.
BOOK-ENTRY ISSUANCE
"STREET NAME" AND OTHER INDIRECT HOLDERS
Investors who hold capital securities in accounts at banks or brokers will
generally not be recognized as legal holders of capital securities. This is
called holding in "Street Name." Instead, the applicable ONB Trust would
recognize only the bank or broker that directly holds, or the financial
institution the bank or broker uses to hold, its capital securities. These
intermediary banks, brokers and other financial institutions pass along
distributions and other payments on the capital securities, either because they
agree to do so in their customer agreements or because they are legally required
to. If you hold capital securities in "Street Name," you should check with your
own institution to find out:
- how it handles securities payments and notices,
- whether it imposes fees or charges,
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- how it would handle voting if ever required,
- whether and how you can instruct it to send you capital securities
registered in your own name so you can be a direct holder as described
below, and
- how it would pursue rights under the capital securities if there were a
default or other event triggering the need for holders to act to protect
their interests.
DIRECT HOLDERS
An ONB Trust's obligations, as well as the obligations of Old National, the
trustees and those of any third parties employed by an ONB Trust, or the issuer
trustees, run only to individuals, corporations or other entities who are
registered as holders of capital securities. As noted above, an ONB does not
have obligations to a holder of capital securities who holds in "Street Name" or
other indirect means, either because the holder chooses to hold capital
securities in that manner or because the capital securities are issued in the
form of global securities as described below. For example, once an ONB Trust
makes payment to the registered holder, the ONB Trust has no further
responsibility for the payment even if that holder is legally required to pass
the payment along to a holder as a "Street Name" customer but does not do so.
GLOBAL SECURITIES
The capital securities will be issued in the form of global securities,
and, therefore, the ultimate beneficial owners can only be indirect holders. The
global securities will be registered in the name of DTC or its nominee and the
capital securities included in the global security may not be transferred in the
name of any other direct holder unless the special circumstances described below
occur. Any person wishing to own capital securities must be so indirectly by
virtue of an account with a broker, bank or other financial institution that in
turn has an account with DTC.
Special Investor Considerations for Global Securities. As an indirect
holder, an investor's rights relating to a global security will be governed by
the account rules of the investor's financial institution and of DTC, as well as
the general laws relating to securities transfers. An investor should be aware
that because the capital securities are issued only in the form of global
securities:
- the investor will not be able to get the capital securities registered in
his or her own name,
- the investor will not be able to receive physical certificates for his or
her interest in the capital securities,
- the investor will be a "Street Name" holder and must look to his or her
own bank or broker for payments on the capital securities and protection
of his or her legal rights relating to the capital securities (see
"-- 'Street Name' and Other Indirect Holders" above),
- the investor may not be able to sell interests in the capital securities
to some insurance companies and other institutions that are required by
law to own their securities in the form of physical certificates,
- DTC's policies will govern payments, transfers, exchange and other
matters relating to the investor's interest in the global security (see
"-- The DTC System" below; Old National, the ONB Trusts and the issuer
trustees have no responsibility for any aspect of DTC's actions or for
its records of ownership interests in the global security, nor do they
supervise DTC in any way), and
- payment for purchases and sales in the market for corporate bonds and
notes is generally made in next-day funds. In contrast, DTC will usually
require that interests in a global security be purchased or sold within
its system using same-day funds. This difference could have some effect
on how global security interests trade, but neither Old National nor any
ONB Trust knows what the effect will be.
33
<PAGE> 58
Special Situations When Global Security Will Be Terminated. In a few
special situations, the global security will terminate and interests in it will
be exchanged for physical certificates representing capital securities. After
the exchange, the choice of whether to hold capital securities directly or in
"Street Name" will be up to the investor. Investors must consult their own bank
or brokers to find out how to have their interests in capital securities
transferred to their own name, so that they will be direct holders. The rights
of "Street Name" investors and direct holders in the capital securities are
described above under "-- 'Street Name' and Other Indirect Holders" and
"-- Direct Holders."
The special situations for termination of a global security are:
- DTC notifies Old National or an ONB trust that it is unwilling, unable or
no longer qualified to continue as the depositary for the capital
securities;
- Old National in its sole discretion determines that the global security
will be exchangeable for certificated capital securities; or
- an event of default under the trust agreement has occurred and has not
been cured and the holders of a majority in liquidation amount of the
outstanding capital securities determine that the global security will be
exchangeable for certificated capital securities.
When a global security terminates, DTC (and not Old National or the issuer
trustees) is responsible for deciding the names of the institutions that will be
the initial direct holders.
THE DTC SYSTEM
DTC has advised Old National that it is a limited-purpose trust company
created to hold securities for its participating organizations (the
"Participations"). DTC also facilitates the clearance and settlement between
Participants in transactions of securities deposited with DTC through changes in
the account records of its Participants. The Participants include securities
brokers and dealers, banks, trust companies, clearing corporations and certain
other organizations. The Underwriters are Participants in the DTC System. Access
to DTC's system is also available to other entities such as securities brokers
and dealers, banks and trust companies that work through a Participant (the
"Indirect Participants").
When you purchase capital securities through the DTC system, the purchases
must be made by or through a Participant, who will receive credit for the
capital securities on DTC's records. Since you actually own the capital
securities, you are the beneficial owner and your ownership interest will only
be recorded on the Participants' or Indirect Participants' records. DTC has no
knowledge of your individual ownership of the capital securities. DTC's records
only show the identity of the Participants and the amount of the capital
securities held by or through them. You will not receive a written confirmation
of your purchase or sale or any periodic statement directly from DTC. You will
receive these from your Participant or Indirect Participant. Thus the
Participants or Indirect Participants are responsible for keeping accurate
account of the holdings of their customers like you.
Any redemption notices will be sent by Old National and the applicable ONB
Trust directly to DTC, who will in turn inform the Participants, who will then
contact you as a beneficial holder. If less than all of the capital securities
are being redeemed, DTC's current practice is to choose by lot the amount of the
interest of each Participant to be redeemed. The Participant will then use an
appropriate method to allocate the redemption price among its beneficial holders
like you.
It is DTC's current practice, upon receipt of any payment of distributions
or liquidation amount, to credit Participants' accounts on the payment date
based on their holdings of beneficial interests in the global securities as
shown on DTC's records. In addition, it is DTC's current practice to assign any
consenting or voting rights to Participants whose accounts are credited with
capital securities on a record date by using an omnibus proxy. Payments by
Participants to owners of beneficial interests in the global securities, and
voting by Participants, will be based on the customary practices between the
Participants and owners of beneficial interests, as is the case with the capital
securities held for the account of
34
<PAGE> 59
customers registered in "Street Name." However, payments will be the
responsibility of the Participants and not of DTC, the issuer trustees, the ONB
Trusts or Old National.
Old National has obtained the information concerning DTC and DTC's
book-entry system from sources that Old National believes to be accurate, but
Old National is not responsibility for the accuracy of this information. In
addition, Old National is not responsible for the performance by DTC, its
Participants or any Indirect Participants of any of their obligations.
REGISTRATION OF JUNIOR SUBORDINATED DEBENTURES
The junior subordinated debentures initially will be issued in certificated
form and registered in the name of the property trustee. If in the future the
junior subordinated debentures are distributed to the holders of capital
securities in exchange for the capital securities and at that time the capital
securities are represented by a global security, the junior subordinated
debentures would also be represented by a global security. In this event, Old
National expects that the book-entry arrangements applicable to the capital
securities would be similar to those applicable to the junior subordinated
debentures.
UNDERWRITING
The distribution of the securities may be effected from time to time in one
or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. Each
prospectus supplement will describe the method of distribution of the debt
securities offered therein.
Old National or an ONB Trust may sell the securities in any one or more of
the following ways from time to time:
- to or through underwriters or dealers;
- directly to one or more purchasers; or
- through agents otherwise indicated in the prospectus supplement acting on
a best efforts basis for the period of its appointment.
Each prospectus supplement will set forth the terms of the offering of the
securities being offered thereby, including the name or names of any
underwriters or agents with whom Old National or an ONB Trust has entered into
arrangements for the sale of the securities, the public offering or purchase
price of those securities, the proceeds to Old National or a ONB Trust from such
sale, any underwriting discounts and other items constituting underwriters'
compensation, any discounts or concessions allowed or reallowed or paid to
dealers, any commissions allowed or paid to agents, and the name of any
securities exchange on which those securities may be listed. Only underwriters
so named in the applicable prospectus supplement are deemed to be underwriters
in connection with the securities offered thereby.
The obligations of the underwriters to purchase those securities will be
subject to certain conditions precedent, and the underwriters will be obligated
to purchase all the securities of the series offered by either of us and
described in the applicable prospectus supplement if they purchase any of those
securities. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
Securities may also be offered and sold, if so indicated in the prospectus
supplement, in connection with a remarketing upon their purchase, in accordance
with a redemption or repayment pursuant to their terms, by one or more firms
("remarketing firms") acting as principals for their own accounts or as agents
for either of us. Any remarketing firm will be identified and the terms of its
agreement, if any, with us and its compensation will be described in the
prospectus supplement. Remarketing firms may be deemed to be underwriters in
connection with the securities remarketed thereby.
35
<PAGE> 60
If so indicated in the prospectus supplement, Old National or an ONB Trust
will authorize agents, underwriters or dealers to solicit offers by certain
institutions to purchase securities pursuant to delayed delivery contracts
providing for payment and delivery on a future date. There may be limitations on
the minimum amount which may be purchased by any such institutions or on the
amount of the securities which may be sold pursuant to such contracts.
Institutions with which such contracts may be made include:
- commercial and savings banks,
- insurance companies,
- pension funds,
- investment companies and
- educational and charitable institutions.
In each case, such institutions must be approved by Old National and/or an
ONB Trust. The obligations of any such purchasers pursuant to such delayed
delivery contracts will not be subject to any conditions except (a) the purchase
by an institution of the particular securities shall not at the time of delivery
be prohibited under the laws of any jurisdiction in the United States to which
such institution is subject, and (b) if the particular securities are being sold
to underwriters, we shall have sold to such underwriters all of those securities
other than the securities covered by such arrangements. Underwriters will not
have any responsibility in respect of the validity or performance of such
contracts.
If any underwriter or any selling group member intends to engage in
stabilizing, syndicate short covering transactions, penalty bids or any other
transaction in connection with the offering of securities that may stabilize,
maintain, or otherwise affect the price of those securities, such intention and
a description of such transactions will be described in the prospectus
supplement.
Agents and underwriters may be entitled under agreements entered into with
Old National and/or the applicable ONB Trust to indemnification by Old National
against certain civil liabilities, including liabilities under the Securities
Act of 1933, or to contribution with respect to payments which the agents or
underwriters may be required to make in respect thereof. Certain of any such
agents and underwriters, including their associates, may be customers of, engage
in transactions with, or perform services for, Old National and its subsidiaries
in the ordinary course of business.
CERTAIN LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplements,
certain legal matters in connection with the securities will be passed upon (a)
for Old National by Krieg DeVault Alexander & Capehart, LLP, Old National's
legal counsel, (b) for the ONB Trusts (with respect to the validity of the
capital securities under Delaware law) by Richards, Layton & Finger, P.A.,
Wilmington, Delaware, special Delaware counsel to Old National and the ONB
Trusts, and (c) for any underwriters by Cleary, Gottlieb, Steen & Hamilton,
Washington, D.C.
36
<PAGE> 61
EXPERTS
The consolidated financial statements of Old National as of December 31,
1998 and December 31, 1997 and for each of the years ended December 31, 1998,
1997 and 1996 incorporated in this prospectus by reference to Old National's
Annual Report on Form 10-K for the year ended December 31, 1998, have been so
incorporated in reliance on the report of Arthur Andersen LLP, independent
accountants, given on the authority of that firm as experts in auditing and
accounting.
Future audited financial statements incorporated in this prospectus by
reference to future filings under the Exchange Act, as provided under "Where You
Can Find More Information," will be so incorporated in reliance on the related
report or reports of the firm of independent accountants auditing such financial
statements, given on such authority of such firm, if and to the extent such
filings include the consent of such firm to the incorporation of such report or
reports herein.
37
<PAGE> 62
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
TRUST PREFERRED SECURITIES (TRUPS(R))
ONB CAPITAL TRUST I
% TRUST PREFERRED SECURITIES (TRUPS(R))
$25 LIQUIDATION AMOUNT
FULLY AND UNCONDITIONALLY GUARANTEED,
AS DESCRIBED HEREIN, BY
OLD NATIONAL BANCORP
-------------------------
PROSPECTUS SUPPLEMENT
, 1999
(Including prospectus dated , 1999)
-------------------------
SALOMON SMITH BARNEY
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 63
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an estimate of the expenses which will be incurred in
connection with the issuance and distribution of the securities being
registered, other than underwriting discounts and commissions:
To be borne by the Company:
<TABLE>
<CAPTION>
AMOUNT
TO BE PAID
----------
<S> <C>
Registration Fee............................................ $ 55,600
Printing and Engraving...................................... $ 20,000
Rating Agencies Fees........................................ $120,000
Accounting Fees and Expenses................................ $ 25,000
Legal Fees and Expenses..................................... $150,000
Blue Sky Fees and Expenses.................................. $ 3,000
Trustees Fees and Expenses.................................. $ 6,000
Miscellaneous Expenses...................................... $ 14,500
--------
Total.................................................. $394,100
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Articles of Incorporation and By-Laws provide that the
Company will indemnify any person who is or was a director, officer or employee
of the Company or of any other corporation for which he is or was serving in any
capacity at the request of the Company against all liability and expense that
may be incurred in connection with any claim, action, suit or proceeding with
respect to which such director, officer or employee is wholly successful or
acted in good faith in a manner he reasonably believed to be in, or not opposed
to, the best interests of the Company or such other corporation and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
that his conduct was unlawful. A director, officer or employee of the Company is
entitled to be indemnified as a matter of right with respect to those claims,
actions, suits or proceedings where he has been wholly successful. In all other
cases, such director, officer or employee will be indemnified only if the Board
of Directors of the Company or independent legal counsel finds that he has met
the standards of conduct set forth above.
The Indiana Business Corporation Law provides in regard to indemnification
of directors and officers as follows:
23-1-37-8 INDEMNIFICATION OF DIRECTOR AGAINST LIABILITY
Sec. 8.(a) A corporation may indemnify an individual made a party to a
proceeding because the individual is or was a director against liability
incurred in the proceeding if;
(1) the individual's conduct was in good faith; and
(2) the individual reasonably believed;
(A) in the case of conduct in the individual's official capacity with
the corporation, that the individual's conduct was in its best interest;
and
(B) in all other cases, that the individual's conduct was at least not
opposed to its best interests; and
(3) in the case of any criminal proceeding, the individual either;
(A) had reasonable cause to believe the individual's conduct was
lawful; or
(B) had no reasonable cause to believe the individual's conduct was
unlawful.
II-1
<PAGE> 64
(b) A director's conduct with respect to an employee benefit plan for a
purpose the director reasonably believed to be in the interests of the
participants in and beneficiaries of the plan is conduct that satisfies the
requirement of subsection (a)(2)(B).
(c) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the director did not meet the standard of conduct
described in this section.
23-1-37-9 MANDATORY INDEMNIFICATION OF DIRECTOR AGAINST EXPENSE
Sec. 9. Unless limited by its articles of incorporation, a corporation
shall indemnify a director who was wholly successful, on the merits or
otherwise, in the defense of any proceeding to which the director was a party
because the director is or was a director of the corporation against reasonable
expenses incurred by the director in connection with the proceeding.
23-1-37-13 OFFICERS, EMPLOYEES OR AGENTS; INDEMNIFICATION AND ADVANCE OF
EXPENSE
Sec. 13. Unless a corporation's articles of incorporation provide
otherwise:
(1) an officer of the corporation, whether or not a director, is entitled
to mandatory indemnification under section 9 of this chapter, and is entitled to
apply for court-ordered indemnification under section 11 of this chapter, in
each case to the same extent as a director;
(2) the corporation may indemnify and advance expenses under this chapter
to an officer, employee, or agent of the corporation, whether or not a director,
to the same extent as to a director; and
(3) a corporation may also indemnify and advance expenses to an officer,
employee, or agent whether or not a director, to the extent, consistent with
public policy, that may be provided by its articles of incorporation, bylaws,
general or specific action of its board of directors, or contract.
23-1-37-15 INDEMNIFICATION RIGHTS UNDER ARTICLES OF INCORPORATION, BY-LAWS
OR RESOLUTIONS
Sec. 15. (a) The indemnification and advance for expenses provided for or
authorized by this chapter does not exclude any other rights to indemnification
and advance for expenses that a person may have under:
(1) a corporation's articles of incorporation or bylaws;
(2) a resolution of the board of directors or of the shareholders; or
(3) any other authorization, whenever adopted, after notice, by a majority
vote of all the voting shares then issued and outstanding.
(b) If the articles of incorporation, by-laws, resolutions of the board of
directors or of the shareholders, or other duly adopted authorization of
indemnification or advance for expenses limit indemnification or advance for
expenses, indemnification and advance for expenses are valid only to the extent
consistent with the articles, by-laws, resolutions of the board of directors or
of the shareholders, or other duly adopted authorization of indemnification or
advance for expenses.
(c) This chapter does not limit a corporation's power to pay or reimburse
expenses incurred by a director, officer, employee, or agent in connection with
the person's appearance as a witness in a proceeding at a time when the person
has not been made a named defendant or respondent to the proceeding.
In addition, the Company has purchased insurance policies which provide
coverage for its directors and officers (subject to exceptions and limitations
specified in the policies) against expenses (including attorney fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by the person in connection with such legal proceeding.
For the undertaking with respect to indemnification, see Item 17 below.
II-2
<PAGE> 65
Reference is made to the Underwriting Agreement, which is filed as Exhibit
1.1 to this Registration Statement, relating to the Company's obligations to
indemnify the underwriters.
Under each Trust Agreement, the Company will agree to indemnify the
Trustees of each Issuer or and predecessor Trustee of each Issuer, and to hold
the Trustees harmless against, any loss, damage, claims, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the 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 under the Trust Agreement.
ITEM 16. EXHIBITS
The following exhibits are filed herewith or incorporated by reference
herein as part of this Registration Statement:
<TABLE>
<S> <C>
1.1 Form of Underwriting Agreement.
3.1 Old National Bancorp's Articles of Incorporation, as amended
April 14, 1999.
3.2 Old National Bancorp's By-Laws, as amended (incorporated by
reference to Exhibit 3.2 of the Company's Quarterly Report
of Form 10-Q (Commission File No. 0-10888) for the quarter
ended March 31, 1999).
4.1 Indenture, dated as of , 1999, between Old
National Bancorp and Bank One Trust Company, NA, as trustee.
4.2 Certificate of Trust of ONB Capital Trust I.
4.3 Trust Agreement of ONB Capital Trust I.
4.4 Certificate of Trust of ONB Capital Trust II.
4.5 Trust Agreement of ONB Capital Trust II.
4.6 Certificate of Trust of ONB Capital Trust III.
4.7 Trust Agreement of ONB Capital Trust III.
4.8 Certificate of Trust of ONB Capital Trust IV.
4.9 Trust Agreement of ONB Capital Trust IV.
4.10 Form of Amended and Restated Trust Agreement of ONB Capital
Trust I, ONB Capital Trust II, ONB Capital Trust III and ONB
Capital Trust IV.
4.11 Form of Capital Security Certificate for ONB Capital Trust
I, ONB Capital Trust II, ONB Capital Trust III and ONB
Capital Trust IV (included as Exhibit B of Exhibit 4.10).
4.12 Form of Guarantee Agreement for ONB Capital Trust I, ONB
Capital Trust II, ONB Capital Trust III and ONB Capital
Trust IV.
5.1 Opinion of Krieg DeVault Alexander & Capehart, LLP as to
legality of the Junior Subordinated Debentures and the
Guarantees to be issued by Old National Bancorp.
5.2 Opinion of Richards, Layton & Finger P.A. as to legality of
the Capital Securities to be issued by ONB Capital Trust I.
5.3 Opinion of Richards, Layton & Finger P.A. as to legality of
the Capital Securities to be issued by ONB Capital Trust II.
5.4 Opinion of Richards, Layton & Finger P.A. as to legality of
the Capital Securities to be issued by ONB Capital Trust
III.
5.5 Opinion of Richards, Layton & Finger P.A. as to legality of
the Capital Securities to be issued by ONB Capital Trust IV.
8.1 Opinion of Krieg DeVault Alexander & Capehart, LLP as to
certain federal income tax matters.
12.1 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Arthur Anderson LLP.
23.2 Consent of Krieg DeVault Alexander & Capehart, LLP (included
in Exhibit 5.1).
23.3 Consent of Richards, Layton & Finger P.A. (included in
Exhibit 5.2).
</TABLE>
II-3
<PAGE> 66
<TABLE>
<S> <C>
23.4 Consent of Krieg DeVault Alexander & Capehart, LLP (included
in Exhibit 8.1).
25.1 Powers of Attorney.
26.1 Form T-1 Statement of Eligibility of Bank One Trust Company,
NA to act as
Trustee under the Indenture and as Guarantee Trustee under
the
Guarantees for the benefit of the holders of Capital
Securities of
ONB Capital Trust I, ONB Capital Trust II, ONB Capital Trust
III and
ONB Capital Trust IV.
26.2 Form T-1 Statement of Eligibility of Bank One Trust Company,
NA to act as
Property Trustee under the Amended and Restated Trust
Agreement of
ONB Capital Trust I.
26.3 Form T-1 Statement of Eligibility of Bank One Trust Company,
NA to act as
Property Trustee under the Amended and Restated Trust
Agreement of
ONB Capital Trust II.
26.4 Form T-1 Statement of Eligibility of Bank One Trust Company,
NA to act as
Property Trustee under the Amended and Restated Trust
Agreement of
ONB Capital Trust III.
26.5 Form T-1 Statement of Eligibility of Bank One Trust Company,
NA to act as
Property Trustee under the Amended and Restated Trust
Agreement of
ONB Capital Trust IV.
</TABLE>
ITEM 17. UNDERTAKING
The undersigned hereby undertake:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or the most recent
post-effective amendment thereto) which, individually or in the aggregate,
reflect a fundamental change in the information set forth in this
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or any
material change to such information in this registration statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by a
registrant pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
(2) that, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) to remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
II-4
<PAGE> 67
Each of the undersigned registrants hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of a
registrant's Annual Report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers, and controlling persons of each
Registrant pursuant to the provisions described in Item 15 above, or otherwise,
each Registrant has been advised that in the opinion of the Securities and
Exchange Commission, such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by each
Registrant of expenses incurred or paid by a director, officer or controlling
person of each Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, each Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
The undersigned hereby undertake that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-5
<PAGE> 68
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, Old
National Bancorp certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
registration statement or amendment thereto to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Evansville, State of
Indiana, on September 22, 1999.
OLD NATIONAL BANCORP
By: /s/ Ronald B. Lankford
------------------------------------
Ronald B. Lankford,
President and Chief Operating
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement or amendment thereto has been signed by the
following persons in the capacities indicated below as of September 22, 1999.
<TABLE>
<CAPTION>
NAME TITLE
---- -----
<C> <S>
/s/ James A. Risinger Chairman of the Board, Director and Chief Executive
- --------------------------------------------- Officer (Chief Executive Officer)
James A. Risinger
/s/ John S. Poelker Senior Vice President and Chief Financial Officer
- --------------------------------------------- (Principal Financial Officer and Principal Accounting
John S. Poelker Officer)
DAVID L. BARNING* Director
- ---------------------------------------------
David L. Barning
RICHARD J. BOND* Director
- ---------------------------------------------
Richard J. Bond
ALAN W. BRAUN* Director
- ---------------------------------------------
Alan W. Braun
WAYNE A. DAVIDSON* Director
- ---------------------------------------------
Wayne A. Davidson
LARRY E. DUNIGAN* Director
- ---------------------------------------------
Larry E. Dunigan
DAVID E. ECKERLE* Director
- ---------------------------------------------
David E. Eckerle
PHELPE L. LAMBERT* Director
- ---------------------------------------------
Phelpe L. Lambert
RONALD B. LANKFORD* President, Chief Operating Officer and Director
- ---------------------------------------------
Ronald B. Lankford
LUCIEN H. MEIS* Director
- ---------------------------------------------
Lucien H. Meis
LOUIS L. MERVIS* Director
- ---------------------------------------------
Louis L. Mervis
LAWRENCE D. PRYBIL* Director
- ---------------------------------------------
Lawrence D. Prybil
</TABLE>
II-6
<PAGE> 69
<TABLE>
<CAPTION>
NAME TITLE
---- -----
<C> <S>
JOHN N. ROYSE* Director
- ---------------------------------------------
John N. Royse
MARJORIE Z. SOYUGENC* Director
- ---------------------------------------------
Marjorie Z. Soyugenc
CHARLES D. STORMS* Director
- ---------------------------------------------
Charles D. Storms
</TABLE>
*By: /s/ JEFFRY L. KNIGHT
--------------------------------------------------
Attorney-in-Fact
Print Name: JEFFREY L. KNIGHT
-------------------------
II-7
<PAGE> 70
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, ONB
Capital Trust I certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
registration statement or amendment thereto to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Evansville, State of
Indiana, on September 22, 1999.
ONB CAPITAL TRUST I
By Old National Bancorp, as Depositor
By: /s/ Ronald B. Lankford
------------------------------------
Title: President and Chief Operating
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, ONB
Capital Trust II certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
registration statement or amendment thereto to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Evansville, State of
Indiana, on September 22, 1999.
ONB CAPITAL TRUST II
By Old National Bancorp, as Depositor
By: /s/ Ronald B. Lankford
------------------------------------
Title: President and Chief Operating
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, ONB
Capital Trust III certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
registration statement or amendment thereto to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Evansville, State of
Indiana, on September 22, 1999.
ONB CAPITAL TRUST III
By Old National Bancorp, as Depositor
By: /s/ Ronald B. Lankford
------------------------------------
Title: President and Chief Operating
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, ONB
Capital Trust IV certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
registration statement or amendment thereto to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Evansville, State of
Indiana, on September 22, 1999.
ONB CAPITAL TRUST IV
By Old National Bancorp, as Depositor
By: /s/ Ronald B. Lankford
------------------------------------
Title: President and Chief Operating
Officer
II-8
<PAGE> 71
EXHIBIT INDEX
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SEQUENTIALLY
EXHIBIT DESCRIPTION NUMBERED PAGES
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<C> <S> <C>
1.1 Form of Underwriting Agreement..............................
3.1 Registrant's Articles of Incorporation, as amended April 14,
1999........................................................
3.2 Registrant's By-laws, as amended (incorporated by reference
to Exhibit 3.2 of the Registrant's Quarterly Report on Form
10-Q (Commission File No. 0-10888) for the quarter ended
March 31, 1999).............................................
4.1 Indenture, dated as of , 1999, between Old
National Bancorp and Bank One Trust Company, NA, as
Trustee.....................................................
4.2 Certificate of Trust of ONB Capital Trust I.................
4.3 Trust Agreement of ONB Capital Trust I......................
4.4 Certificate of Trust of ONB Capital Trust II................
4.5 Trust Agreement of ONB Capital Trust II.....................
4.6 Certificate of Trust of ONB Capital Trust III...............
4.7 Trust Agreement of ONB Capital Trust III....................
4.8 Certificate of Trust of ONB Capital Trust IV................
4.9 Trust Agreement of ONB Capital Trust IV.....................
4.10 Form of Amended and Restated Trust Agreement of ONB Capital
Trust I, ONB Capital Trust II, ONB Capital Trust III and ONB
Capital Trust IV............................................
4.11 Form of Capital Security Certificate for ONB Capital Trust
I, ONB Capital Trust II, ONB Capital Trust III and ONB
Capital Trust IV (included as Exhibit B to Exhibit 4.10)....
4.12 Form of Guarantee Agreement for ONB Capital Trust I, ONB
Capital Trust II, ONB Capital Trust III and ONB Capital
Trust IV....................................................
5.1 Opinion of Krieg DeVault Alexander & Capehart, LLP as to
legality of the Junior Subordinated Debentures and the
Guarantees to be issued by Old National Bancorp.............
5.2 Opinion of Richards, Layton & Finger P.A. as to legality of
the Capital Securities to be issued by ONB Capital Trust
I...........................................................
5.3 Opinion of Richards, Layton & Finger P.A. as to legality of
the Capital Securities to be issued by ONB Capital Trust
II. ........................................................
5.4 Opinion of Richards, Layton & Finger P.A. as to legality of
the Capital Securities to be issued by ONB Capital Trust
III. .......................................................
5.5 Opinion of Richards, Layton & Finger P.A. as to legality of
the Capital Securities to be issued by ONB Capital Trust
IV. ........................................................
8.1 Opinion of Krieg DeVault Alexander & Capehart, LLP as to
certain federal income tax matters..........................
12.1 Computation in support of ratios of earnings to fixed
charges.....................................................
23.1 Consent of Arthur Anderson LLP..............................
23.2 Consent of Krieg DeVault Alexander & Capehart, LLP (included
in Exhibit 5.1).............................................
23.3 Consent of Richards, Layton & Finger P.A. (included in
Exhibit 5.2)................................................
23.4 Consent of Krieg DeVault Alexander & Capehart, LLP (included
in Exhibit 8.1).............................................
25.1 Powers of Attorney..........................................
26.1 Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of Bank One Trust Company,
NA as Trustee under the Indenture and under the Guarantees
for the benefit of the holders of Capital Securities of ONB
Capital Trust I, ONB Capital Trust II, ONB Capital Trust III
and ONB Capital Trust IV....................................
</TABLE>
<PAGE> 72
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EXHIBIT DESCRIPTION NUMBERED PAGES
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26.2 Form T-1 Statement of Eligibility of Bank One Trust Company,
NA to act as Property Trustee under the Amended and Restated
Trust Agreement for the benefit of the holders of Capital
Securities of ONB Capital Trust I...........................
26.3 Form T-1 Statement of Eligibility of Bank One Trust Company,
NA to act as Property Trustee under the Amended and Restated
Trust Agreement for the benefit of the holders of Capital
Securities of ONB Capital Trust II..........................
26.4 Form T-1 Statement of Eligibility of Bank One Trust Company,
NA to act as Property Trustee under the Amended and Restated
Trust Agreement for the benefit of the holders of Capital
Securities of ONB Capital Trust III.........................
26.5 Form T-1 Statement of Eligibility of Bank One Trust Company,
NA to act as Property Trustee under the Amended and Restated
Trust Agreement for the benefit of the holders of Capital
Securities of ONB Capital Trust IV..........................
</TABLE>
<PAGE> 1
EXHIBIT 1.1
[FORM OF UNDERWRITING AGREEMENT FOR
TRUST PREFERRED SECURITIES]
ONB CAPITAL TRUST [ ]
% TRUST PREFERRED SECURITIES, SERIES
(liquidation amount $ per preferred security) guaranteed
on a junior subordinated basis by Old National Bancorp
UNDERWRITING AGREEMENT
[Date]
To the Underwriters set forth
on Schedule II hereto
Ladies and Gentlemen:
ONB Capital Trust , a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), and Old National Bancorp, a multi-bank
holding company organized under the laws of the State of Indiana, as depositor
of the Trust and as guarantor (the "Company" and, together with the Trust, the
"Issuers"), propose subject to the terms and conditions stated herein, that the
Trust issue and sell to the several underwriters named in Schedule II hereto
(the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), the aggregate principal amount of % Trust Preferred
Securities, Series (liquidation amount $ per preferred security) set
forth in Schedule II hereto representing beneficial interests in the Trust (the
"Securities"), guaranteed on a junior subordinated basis by the Company as to
the payment of distributions, and as to payments on liquidation or redemption,
to the extent set forth in a guarantee agreement to be dated , 1999
(the "Guarantee") between the Company and Bank One Trust Company, NA, as trustee
(the "Guarantee Trustee"). The Trust is to purchase, with the proceeds of the
sale of the Securities to the Underwriters and the sale of its Common Securities
(liquidation amount $ per common security) (the "Common Securities") to the
Company, an aggregate of $ Corresponding Junior Subordinated Debentures (the
"Corresponding Junior Subordinated Debentures") of the Company, to be issued
pursuant to a securities resolution with respect to an indenture (the
"Indenture") dated as of , 1999 between the Company and Bank One
Trust Company, NA, as trustee (the "Corresponding Debt Trustee"). The payments
made by the Company on the Corresponding Junior Subordinated Debentures are
established at a level sufficient to permit the Trust, upon receipt of such
payments, to make payments on the Securities in accordance with their terms.
<PAGE> 2
Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference. Certain terms used
herein are defined in Section 17 hereof.
SECTION 1. Representations and Warranties. Each of the Issuers jointly
and severally represents and warrants to each Underwriter as of the date hereof
and as of the Closing Time referred to in Section 2(b) hereof, and agrees with
each Underwriter, as follows:
(a) The Issuers meet the requirements for use of Form S-3 under the Act
and have prepared and filed with the Commission a registration statement (the
file number of which is set forth in Schedule I hereto) on Form S-3, including a
related basic prospectus, for registration under the Act of the offering and
sale of the Securities. The Issuers may have filed one or more amendments
thereto, including a Preliminary Final Prospectus, each of which has previously
been furnished to you. The Issuers will 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 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 Issuers have included in such registration
statement, as amended at the Effective Date, all information (other than Rule
430A Information) required by the Act and the rules thereunder to be included in
such registration statement and the Final 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 Execution Time or, to the extent not completed at
the Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the Basic Prospectus and any Preliminary
Final Prospectus) as the Company has advised you, prior to the Execution Time,
will be included or made therein. The Registration Statement, at the Execution
Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will, and
when the Final Prospectus is first filed (if required) in accordance with Rule
424(b) and at the Closing Time (as defined herein), the Final Prospectus (and
any supplement thereto) will, comply in all material respects with the
applicable requirements of the Act, the Exchange Act and the Trust Indenture Act
and the respective rules thereunder; on the Effective Date and at the Execution
Time, the Registration Statement did not or will not contain any untrue
statement of a material
2
<PAGE> 3
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; on the
Effective Date and at the Closing Time the Trust Agreement (as defined below),
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;
and, on the Effective Date, the Final Prospectus, if not filed pursuant to Rule
424(b), will not, and on the date of any filing pursuant to Rule 424(b) and at
the Closing Time, the Final Prospectus (together with any supplement thereto)
will not, include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that the Issuers make no representations or warranties as to (i) that part of
the Registration Statement which shall constitute the Statement of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration Statement or
the Final Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of any Underwriter through the Representatives specifically for inclusion in the
Registration Statement or the Final Prospectus (or any supplement thereto).
(c) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act of the
State of Delaware with the power and authority to enter into and perform its
obligations under this Agreement, the Securities, the Common Securities and the
Trust Agreement (as defined below) and to own property and conduct its business
as described in the Final Prospectus, and has conducted and will conduct no
business other than the transactions contemplated by this Agreement and as
described in the Prospectus; the Trust is not a party to or bound by any
agreement or instrument other than this Agreement, the Amended and Restated
Trust Agreement dated as of , (the "Trust Agreement") between
the Company and the trustees named therein (the "Trustees") and the agreements
and instruments contemplated by the Trust Agreement and the Prospectus.
(d) The Common Securities have been duly authorized by the Trust and
upon delivery by the Trust to the Company against payment therefor as described
in the Prospectus, will be duly and validly issued and fully paid and
non-assessable beneficial interests in the Trust and will conform to the
description thereof contained in the Prospectus; the issuance of the Common
Securities is not subject to preemptive or other similar rights; and at the
Closing Time, all of the issued and outstanding Common Securities of the Trust
will be directly owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(e) The Securities have been duly authorized by the Trust, and, when
issued and delivered against payment therefor as provided herein, will be duly
and validly issued and, subject to the qualifications set forth herein, fully
paid and non-assessable beneficial interests in the Trust and will conform in
all material respects to the description thereof contained in the Final
Prospectus; the issuance of the Securities is not subject to preemptive or other
similar rights; and the holders of the Securities (the "Security holders") will
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 (subject to the obligations of the
Security holders under the Trust Agreement to make certain payments to the
3
<PAGE> 4
Trust to defray expenses such as any applicable transfer and stamp taxes and to
provide security or indemnity in connection with the replacement of destroyed,
lost or stolen certificates or in connection with directing the Property Trustee
under the Trust Agreement to exercise its rights and powers at the request of
Security holders).
(f) The Guarantee, the Corresponding Junior Subordinated Debentures,
the Trust Agreement and the Indenture (collectively, the "Company Agreements")
have each been duly authorized by the Company and when validly executed and
delivered by the Company and, in the case of the Guarantee, by the Guarantee
Trustee, in the case of Trust Agreement, by the Trustees and, in the case of the
Indenture, by the Corresponding Debt Trustee, and, in the case of Corresponding
Junior Subordinated Debentures, when validly issued by the Company and validly
authenticated and delivered by the Corresponding Debt Trustee, will constitute
valid and legally binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing; the Trust Agreement, the
Indenture and the Guarantee have been duly qualified under the Trust Indenture
Act, as amended; the Corresponding Junior Subordinated Debentures are entitled
to the benefits of the Indenture; and the Company Agreements will conform to the
descriptions thereof in the Prospectus.
(g) This Agreement has been duly authorized, executed and delivered by
each of the Issuers.
(h) The Company is a multi-bank holding company duly organized and
validly existing in good standing under the laws of the State of Indiana with
full corporate power and authority to enter into and perform its obligations
under this Agreement, the Trust Agreement, the Indenture, the Guarantee and the
Corresponding Junior Subordinated Debentures, and to purchase, own and hold the
Common Securities issued by the Trust.
(i) The Company has authorized capitalization as set forth in the Final
Prospectus, and all of the issued shares of capital stock of the company have
been duly and validly authorized and issued and are fully paid and
non-assessable; all the outstanding beneficial interests in the Designated Trust
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the descriptions thereof contained in the Final
Prospectus;
(j) Each "significant subsidiary" of the Company (as such term is
defined in Rule 1-02 of Regulation S-X (each, a "Subsidiary" and, collectively,
the "Subsidiaries," and each of which is listed on Schedule III hereto) has been
duly incorporated and is validly existing as a corporation in standing under the
laws of the jurisdiction of its incorporation, has power and authority
(corporate and other) to own, lease and operate its properties and to conduct
its business as described in the Final Prospectus, and 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 to so qualify or be in good standing would not have a material adverse
effect on the condition, financial or otherwise, or the earnings or business
affairs of the Company
4
<PAGE> 5
and its subsidiaries; and all of the issued and outstanding capital stock of
each Significant Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and all such shares owned by the Company, directly
or through subsidiaries, are owned free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or security interest;
(k) The consolidated historical financial statements, together with
related schedules and notes, included or incorporated by reference in the
Registration Statement and the Final Prospectus (and any amendment or supplement
thereto), comply as to form in all material respects with the requirements of
the Act and the Exchange Act. Such historical financial statements present
fairly the consolidated financial position of the Company and its subsidiaries
at the respective dates indicated and the results of their operations and their
cash flows for the respective periods indicated in accordance with generally
accepted accounting principles consistently applied throughout such periods.
(l) The Issuers have not distributed and, prior to the later to occur
of (i) the Closing Time and (ii) completion of the distribution of the
Securities, will not distribute any offering materials in connection with the
offering and sale of the Securities other than the Registration Statement, the
Preliminary Final Prospectus, the Final Prospectus or other materials, if any,
permitted by the Securities Act.
(m) None of the Company, the Trust or any Subsidiary is in violation of
its charter, by-laws or other organizational documents or in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the Company,
the Trust or any of the Subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or assets of the Company, the
Trust or any Subsidiary is subject (collectively, "Agreements and Instruments")
except for such defaults that would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"); and the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated herein and in the Registration Statement (including
the issuance and sale of the Securities and the use of the proceeds from the
sale of the Securities as described in the Prospectus under the caption "Use of
Proceeds") and compliance by each of the Trust and the Company with its
obligations hereunder have been duly authorized by all necessary corporate
action and do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company, the Trust or any Subsidiary pursuant to, the Agreements and Instruments
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor will such
action result in any violation of the provisions of the charter, by-laws or
other organizational documents of the Company, the Trust or any Subsidiary or
any applicable law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company, the Trust or any Subsidiary or any of
their assets, properties or operations. As used herein, a "Repayment Event"
means any event or condition which gives the
5
<PAGE> 6
holder of any note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company, the Trust
or any Subsidiary.
(n) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries or its or their property is pending or, to the best
knowledge of the Company, threatened that could reasonably be expected to have a
Material Adverse Effect, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(o) Arthur Andersen LLP, the Company's former auditors, who have
certified certain financial statements of the Company and its consolidated
subsidiaries and delivered their report with respect to the audited consolidated
financial statements and schedules included in the Final Prospectus, are
independent public accountants with respect to the Company within the meaning of
the Act and the applicable published rules and regulations thereunder.
PriceWaterhouseCoopers LLP, the Company's current auditors, are independent
public accountants with respect to the Company within the meaning of the Act and
the applicable published rules and regulations thereunder.
(p) The Company, the Trust and the Subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
respective businesses, and neither the Company, the Trust nor any such
Subsidiary has received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a Material Adverse Effect, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated in
the Final Prospectus (exclusive of any supplement thereto).
(q) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by each of the
Issuers of its obligations hereunder, in connection with the offering, issuance
or sale of the Securities hereunder or the consummation of the transactions
contemplated by this Agreement, except such as have been already obtained or
made or as may be required under the Act or the rules and regulations of the
Commission thereunder or state securities laws and except for the qualification
of the Trust Agreement, the Indenture and the Guarantee under the Trust
Indenture Act.
(r) The statements set forth in (i) the Basic Prospectus which forms a
part of the Final Prospectus under the captions "Description of Debt
Securities," "Description of Capital Securities," "Description of Guarantees,"
and "Relationship Among the Capital Securities, the Corresponding Junior
Subordinated Debentures and the Guarantees," and (ii) in the prospectus
supplement which forms a part of the Final Prospectus under the captions
"Certain Terms of Preferred Securities" and "Certain Terms of the Junior
Subordinated Debentures" insofar as they constitute a summary of the terms of
the Securities, Subordinated Debentures, the Guarantees and the Company
Agreements, and (x) in the Prospectus under the caption "Plan of Distribution"
6
<PAGE> 7
and (y) in the Prospectus as amended or supplemented under the caption
"Underwriting," insofar as they purport to describe the provisions of the laws
and documents referred to therein, in each case are accurate, complete and fair;
(s) The Company is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended (the "Bank Holding Company Act"),
and the regulations of the Board of Governors of the Federal Reserve System (the
"Federal Reserve"), and the deposit accounts of the Company's subsidiary banks
are insured by the Federal Deposit Insurance Corporation ("FDIC") to the fullest
extent permitted by law and the rules and regulations of the FDIC, and no
proceeding for the termination of such insurance are pending or threatened.
(t) Each of the Issuers is not, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will not be, an "investment company" or
an entity "controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 Act").
Any certificate signed by an officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
SECTION 2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
set forth in Schedule I hereto the principal amount of the Securities set forth
opposite such Underwriter's name in Schedule II hereto.
SECTION 3. Delivery and Payment. Delivery of and payment for the
Securities shall be made on the date and at the time specified in Schedule I
hereto or at such time on such later date not more than three Business Days
after the foregoing date as the Representatives shall designate, which date and
time may be postponed by agreement between the Representatives and the Company
or as provided in Section 9 hereof (such date and time of delivery and payment
for the Securities being herein called the "Closing Time"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall otherwise
instruct.
SECTION 4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
SECTION 5. Agreements. Each of the Issuers jointly and severally
covenants with each Underwriter as follows:
7
<PAGE> 8
(a) It will use its best efforts to cause the Registration Statement,
if not effective at the Execution Time, and any amendment thereof, to become
effective. Prior to the termination of the offering of the Securities, it will
not file any amendment of the Registration Statement or supplement (including
the Final Prospectus or any Preliminary Final Prospectus) to the Basic
Prospectus or any Rule 462(b) Registration Statement unless it has furnished you
a copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the foregoing
sentence, if the Registration Statement has become or becomes effective pursuant
to Rule 430A, or filing of the Final Prospectus is otherwise required under Rule
424(b), it will cause the Final Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to the Representatives of such timely filing. It will
promptly advise the Representatives (1) when the Registration Statement, if not
effective at the Execution Time, shall have become effective, (2) when the Final
Prospectus, and any supplement thereto, shall have been filed (if required) with
the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement shall have been filed with the Commission, (3) when, prior to
termination of the offering of the Securities, any amendment to the Registration
Statement shall have been filed or become effective, (4) of any request by the
Commission or its staff for any amendment of the Registration Statement, or any
Rule 462(b) Registration Statement, or for any supplement to the Final
Prospectus or for any additional information, (5) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
and (6) of the receipt by it of any notification with respect to the suspension
of the qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. It will use its
best efforts to prevent the issuance of any such stop order or the suspension of
any such qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of which
the Final Prospectus as then supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading, or if it shall be necessary to amend the Registration Statement
or supplement the Final Prospectus to comply with the Act or the Exchange Act or
the respective rules thereunder, it promptly will (1) notify the Representatives
of such event, (2) prepare and file with the Commission, subject to the second
sentence of paragraph (a) of this Section 5, an amendment or supplement which
will correct such statement or omission or effect such compliance and (3) supply
any supplemented Final Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, it will make generally available to its
security holders and to the Representatives an earnings statement or statements
of the Company and its subsidiaries which will satisfy the provisions of Section
11(a) of the Act and Rule 158 under the Act.
(d) It will furnish to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and to
8
<PAGE> 9
each other Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or dealer
may be required by the Act, as many copies of each Preliminary Final Prospectus
and the Final Prospectus and any supplement thereto as the Representatives may
reasonably request. It will pay the expenses of printing or other production of
all documents relating to the offering.
(e) It will arrange, if necessary, for the qualification of the
Securities for sale under the laws of such jurisdictions as the Representatives
may designate, will maintain such qualifications in effect so long as required
for the distribution of the Securities and will pay any fee of the National
Association of Securities Dealers, Inc., in connection with its review of the
offering; provided that in no event shall the Company be obligated to qualify to
do business in any jurisdiction where it is not now so qualified or to take any
action that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities, in any jurisdiction where
it is not now so subject.
(f) It will not take, directly or indirectly, any action designed to or
which has constituted or which might reasonably be expected to cause or result,
under the Exchange Act or otherwise, in stabilization or manipulation of the
price of any of its securities to facilitate the sale or resale of the
Securities.
(g) During the period of three years hereafter (i) the Company will
furnish to you, upon your request, from time to time, such information
concerning the Company as you may reasonably request, and (ii) the Trust will
furnish to you, upon your request, a copy of each report of the Trust mailed to
holders of Preferred securities or Common Securities.
(h) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 10 hereof or by notice given by you terminating this
Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement
shall be terminated by the Underwriters because of any failure or refusal on the
part of the Issuers to comply with the terms or fulfill any of the conditions of
this Agreement, the Company agrees to reimburse the Representatives for all
reasonable out-of-pocket expenses (including reasonable fees and expenses of
counsel for the Underwriters) incurred by you in connection therewith.
(i) It will cause the net proceeds received by the Trust from the sale
of the Securities to be used in the manner specified in the Final Prospectus (or
any supplement thereto) under "Use of Proceeds".
(j) It will use its best efforts to cause the listing of the Securities
on any such stock exchange or exchanges as are set forth in Schedule I hereto.
(k) It will not, without the prior written consent of Salomon Smith
Barney Inc., offer, sell, contract to sell, pledge, or otherwise dispose of, (or
enter into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Issuers or any
affiliate of the Issuers or any person in privity with the Issuers or any
affiliate of the Issuers) directly or indirectly, including the filing (or
participation in the filing) of a
9
<PAGE> 10
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act, any securities of
its with the characteristics and terms similar to the Securities or publicly
announce an intention to effect any such transaction until the Business Day set
forth on Schedule I hereto.
(l) During the period when the Final Prospectus is required to be
delivered under the Act or the Exchange Act, the Company will file or cause to
be filed all documents required to be filed with the Commission pursuant to the
Exchange Act within the time periods required by the Exchange Act.
SECTION 6. Payment of Expenses. The Issuers will pay or cause to be
paid the expenses set forth in Schedule I hereto
SECTION 7. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase the Securities shall be subject to the accuracy of
the representations and warranties on the part of the Company contained herein
as of the Execution Time and the Closing Time, to the accuracy of the statements
of the Company made in any certificates pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Representatives agree in writing to a later time, the
Registration Statement will become effective not later than (i) 6:00 PM New York
City time, on the date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York City time on such date or
(ii) 9:30 AM on the Business Day following the day on which the public offering
price was determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the Final Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, will be filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) At Closing Time, the Representatives shall have received the
favorable opinion, dated as of Closing Time, of (i) Krieg DeVault Alexander &
Capehart LLP, counsel for the Issuers, to the effect set forth in Exhibit A in
form and substance satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters
and addressed to the Underwriters and to such further effect as counsel to the
Underwriters may reasonably request. In giving such opinion such counsel may
rely, as to all matters governed by the laws of jurisdictions other than the law
of the State of Indiana and the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representatives. Such counsel may also state that, insofar
as such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company, the Trust and the
Company's Subsidiaries, certificates of representatives of the applicable
trustees and certificates of public officials.
10
<PAGE> 11
(c) At Closing Time, the Representatives shall have received the
favorable opinion, dated as of Closing Time, of Cleary, Gottlieb, Steen &
Hamilton, the counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters and addressed to the
Underwriters with respect to such matters as the Representatives may reasonably
request. In giving such opinion such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the State of New
York and the federal law of the United States and the General Corporation Law of
the State of Delaware, upon the opinions of counsel satisfactory to the
Representatives. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company, the Trust and the Company's
Subsidiaries, certificates of representatives of the applicable Trustees and
certificates of public officials.
(d) At Closing Time, the Representatives shall have received the
favorable opinion, dated as of Closing Time, of Richards, Layton & Finger, P.A.,
special Delaware counsel for the Issuers, in form and substance satisfactory to
counsel for the Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters and addressed to the Underwriters to
the effect set forth in Exhibit B hereto and to such further effect as counsel
to the Underwriters may reasonably request. In giving such opinion such counsel
may rely, as to all matters governed by the laws of jurisdictions other than the
federal law of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to the Representatives. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Trust, the Company and the Company's Subsidiaries, certificates of
representatives of the applicable trustees and certificates of public officials.
(e) At Closing Time, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the Final
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its Subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Representatives shall have
received a certificate of the President or a Vice President of the Company and
of the Chief Financial Officer or Corporate Controller of the Company, dated as
of Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) each of the Trust and the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to Closing Time, and (iv) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or are, to the knowledge of such
officers, contemplated by the Commission.
(f) The Trust shall have performed all of its obligations under this
Agreement which are to be performed by the terms hereof at or before the Closing
Time.
(g) At the time of the execution of this Agreement, the Representatives
shall have received from the Company's former independent public accountants,
Arthur Andersen, LLP, a letter dated such date, in form and substance
satisfactory to the Representatives (substantially in
11
<PAGE> 12
the form of Annex A hereto), together with signed or reproduced copies of such
letter for each of the other Underwriters and addressed to the Underwriters
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
(h) At Closing Time, the Representatives shall have received from
Arthur Andersen LLP, the Company's former independent public accountants a
letter, dated as of Closing Time, together with signed or reproduced copies of
such letter for each of the other Underwriters and addressed to the
Underwriters, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (g) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to
Closing Time.
(i) At the time of the execution of this Agreement, the Representatives
shall have received from the Company's independent public accountants,
PriceWaterhouseCoopers LLP, a letter dated such date, in form and substance
satisfactory to the Representatives (substantially in the form of Annex B
hereto), together with signed or reproduced copies of such letter for each of
the other Underwriters and addressed to the Underwriters containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to certain financial statements and
certain financial information contained in the Registration Statement and the
Prospectus.
(j) At Closing Time, the Representatives shall have received from
PriceWaterhouseCoopers LLP, the Company's independent public accountants a
letter, dated as of Closing Time, together with signed or reproduced copies of
such letter for each of the other Underwriters and addressed to the
Underwriters, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (i) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to
Closing Time.
(k) At Closing Time, the Securities shall be rated by
as set forth in Schedule I hereto. Since the date of
this Agreement, there shall not have occurred a downgrading in the rating
assigned to the Securities or any of the Company's debt securities by any
"nationally recognized statistical rating agency," as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the Act, and no such
organization shall have publicly announced that is has under surveillance or
review its rating of the Securities or any of the Company's other debt
securities.
(l) At Closing Time, the Securities shall have been approved for
listing on such exchange or exchanges as are listed on Schedule I hereto,
subject only to official notice of issuance.
(m) At Closing Time counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the purpose
of enabling them to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Issuers in connection with the issuance and
12
<PAGE> 13
sale of the Securities as herein contemplated shall be satisfactory in form and
substance to the Representatives and counsel for the Underwriters.
(n) If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Issuers at any time at or prior to
Closing Time and such termination shall be without liability of any party to any
other party except as provided in Section 6 and except that Sections 1, 8, 9 and
10 shall survive any such termination and remain in full force and effect.
SECTION 8. Indemnification. (a) Each of the Issuers agrees jointly and
severally to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Securities as originally filed or in any amendment thereof,
or in the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Issuers will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Issuers by or on behalf of
any Underwriter through the Representatives specifically for inclusion therein.
This indemnity agreement will be in addition to any liability which the Issuers
may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Issuers, each of their directors, each of their officers who
signs the Registration Statement, and each person who controls either of the
Issuers within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Issuers to each Underwriter, but only
with reference to written information relating to such Underwriter furnished to
the Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the statements
set forth in the last paragraph of the cover page regarding delivery of the
Securities and, under the heading "Underwriting" in the Final Prospectus, (i)
the list of Underwriters and their respective participation in the sale of the
Securities, (ii) the sentences related to concessions and reallowances and (iii)
the paragraph related to stabilization, syndicate covering transactions and
penalty bids in any Preliminary Final Prospectus and the Final Prospectus
constitute the only information furnished in writing by or on
13
<PAGE> 14
behalf of the several Underwriters for inclusion in any Preliminary Final
Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Issuers and the Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Issuers and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Issuers on the one hand and by the
Underwriters on the other from the offering of the Securities; provided,
however, that in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or commission
applicable
14
<PAGE> 15
to the Securities purchased by such Underwriter hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the Issuers and the Underwriters severally shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of the Issuers on the one hand and of the Underwriters on the
other in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Issuers shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by them, and benefits received by
the Underwriters shall be deemed to be equal to the total underwriting discounts
and commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information
provided by the Issuers on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Issuers
and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
either of the Issuers within the meaning of either the Act or the Exchange Act,
each officer of the Issuers who shall have signed the Registration Statement and
each director of the Issuers shall have the same rights to contribution as the
Issuers, subject in each case to the applicable terms and conditions of this
paragraph (d).
SECTION 9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule II hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule I hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Time shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing
15
<PAGE> 16
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
SECTION 10. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Trust, Company or any
Subsidiaries of the Company submitted pursuant hereto, shall remain operative
and in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or controlling person, or by or on behalf of the
Issuers, and shall survive delivery of the Securities to the Underwriters.
SECTION 11. Termination of Agreement.
(a) The Representatives may terminate this Agreement, by notice to the
Issuers, at any time at or prior to Closing Time (i) if there has been, since
the time of execution of this Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its Subsidiaries considered as one
enterprise or the Trust, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States or the international financial markets,
any outbreak of hostilities or escalation thereof or other calamity or crisis
the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or the Nasdaq
National Market System, or if trading generally on the American Stock Exchange
or the Nasdaq National Market System or in the New York Stock Exchange has been
suspended or materially limited (other than to provide for an orderly market),
or minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers, Inc. or
any other governmental authority, or (iv) if a banking moratorium has been
declared by either Federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof, and provided further that Sections 1, 8, 9 and 10
shall survive such termination and remain in full force and effect.
SECTION 12. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at the address set forth
on Schedule II; notices to the Issuers shall be directed to them at 420 Main
Street, Evansville, Indiana 47708, attention of the Corporate Secretary.
SECTION 13. Parties. This Agreement shall each inure to the benefit of
and be binding upon the Underwriters, the Issuers and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Issuers and their respective successors and the
16
<PAGE> 17
controlling persons and officers and directors referred to in Sections 8 and 9
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Issuers and
their respective successors, and said controlling persons and officers,
directors, trustees and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 14. Governing Law and Time. This agreement shall be governed by
and construed in accordance with the laws of the State of New York. Except as
otherwise set forth herein, specified times of day refer to New York City time.
SECTION 15. Effect of Headings. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
SECTION 16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended and the rules
and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"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 become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
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<PAGE> 18
"Final Prospectus" shall mean the prospectus supplement relating to the
Securities that was first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement referred
to in paragraph 1(a) above, including exhibits and financial statements, as
amended at the Execution Time (or, if not effective at the Execution Time,
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 Time, 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 Act.
"Rule 430A Information" shall mean information with respect to the
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
1(a) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended and the rules and regulations of the Commission promulgated
thereunder.
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<PAGE> 19
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Issuers and the Underwriters.
Very truly yours,
OLD NATIONAL BANCORP
By:
----------------------------------
Name:
Title:
ONB CAPITAL TRUST
By:
----------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first written above.
[NAME(S) OF REPRESENTATIVE(S)]
By: Salomon Smith Barney Inc.
By:
-------------------------------
Name:
Title:
For themselves and the other Under-
writers, if any, named in
Schedule I to the foregoing
Agreement
19
<PAGE> 20
SCHEDULE I
ONB CAPITAL TRUST
Underwriting Agreement dated:
Registration Statement No.:
Representative(s)
Title, Purchase Price and Description of Securities:
<TABLE>
<S> <C>
Title: % Capital Securities, Series .
Liquidation Amount at Maturity: $ (liquidation amount $ per preferred security).
Distributions: % per annum, from , , payable
[quarterly][semi-annually] on , ,
and , commencing , , , to holders of record on
the preceding , , or
, as the case may be.
</TABLE>
<TABLE>
<S> <C> <C>
Maturity:
Optional Redemption:
Sinking Fund:
Listing:
Rating:
Expenses:
Purchase Price: % of liquidation amount, plus accrued distributions[, if any,]
from , .
Expected Reoffering Price: % of liquidation amount, subject to change by the
[Representative[s] [Underwriters].
Closing: A.M. on , , at the offices of
, in [___________] [Clearing House (next day)] [Federal (same day)]
funds.
Settlement and Trading: [Physical certificated form.] [Book-Entry Only via the Depository
Trust Company ("DTC")]. The Securities [will] [will not] trade in
DTC's Same Day Funds Settlement System.]
</TABLE>
<PAGE> 21
Settlement System.]
Type of Offering:
Date referred to in Section 5(f) after
which the Company may offer or
sell debt securities issued or
guaranteed by the Company
without the consent of the
Representative(s):
Modification of items to be covered
by the letter from [NAME OF
ACCOUNTANTS] delivered pursuant to
Section 6(e) at the Execution Time:
Notices: Notices to be given to the Underwriters should be
directed to the Representatives as follows:
The respective numbers of the Securities to be purchased by each of the
Underwriters are set forth opposite their names in Schedule II hereto
<PAGE> 22
SCHEDULE II
ONB CAPITAL TRUST
Underwriters Principal Amount of
- ------------ Trust Preferred Securities
to be Purchased
--------------------------
Salomon Smith Barney Inc..................... $
-------------------------
Total..................... $
=========================
<PAGE> 23
SCHEDULE III
OLD NATIONAL BANCORP
List of Significant Subsidiaries
Old National Bank, Evansville, Indiana
<PAGE> 24
EXHIBIT A
FORM OF OPINION OF ISSUERS' COUNSEL TO BE DELIVERED
PURSUANT TO SECTION 5(b)
Capitalized terms used herein shall have the same definitions
as set forth in the underwriting agreement (the "Agreement") to which this
Exhibit A is attached.
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Indiana. The
Company has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under the Agreement.
(ii) Each Subsidiary set forth on Schedule III to the Agreement has
been duly incorporated and is validly existing as a corporation under the laws
of the jurisdiction of its incorporation, and has corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectus; except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock of each Subsidiary
has been duly authorized and validly issued, is fully paid and non-assessable
and, to the best of our knowledge, is owned by the Company, directly or through
Subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; to the best of our knowledge, 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.
(iii) The Agreement has been duly authorized, executed and delivered
by the Company.
(iv) The Guarantee, the Corresponding Junior Subordinated
Debentures, the Trust Agreement and the Indenture have each been duly authorized
by the Company and when validly executed and delivered by the Company and, in
the case of the Guarantee, by the Guarantee Trustee, in the case of Trust
Agreement, by the Trustees and, in the case of the Indenture, by the
Corresponding Debt Trustee, and, in the case of Corresponding Junior
Subordinated Debentures, when validly issued by the Company and validly
authenticated and delivered by the Corresponding Debt Trustee, will constitute
valid and legally binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law);
the Trust Agreement, the Indenture and the Guarantee have been duly qualified
under the Trust Indenture Act, as amended; the Corresponding Junior Subordinated
Debentures are entitled to the benefits of the Indenture; and the Company
Agreements conform in all material respects to the descriptions thereof in the
Prospectus.
(vi) The Registration Statement has been declared effective under
the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been
made in the manner and
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<PAGE> 25
within the time period required by Rule 424(b); and, to the best of our
knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued under the Act and no proceedings for that purpose have
been instituted or are pending or threatened by the Commission.
(vii) The Registration Statement, the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or supplement to
the Registration Statement and Prospectus, excluding the documents incorporated
by reference therein, as of their respective effective or issue dates (other
than the financial statements and supporting schedules included therein or
omitted therefrom and the Statements of Eligibility on Form T-1 of the
applicable trustees, as to which we express no opinion) appear on their face to
comply as to form in all material respects with the requirements of the Act and
the Trust Indenture Act.
(viii) The documents incorporated by reference in the Prospectus
(other than the financial statements and supporting schedules included therein
or omitted therefrom, as to which we express no opinion), when they became
effective or were filed with the Commission, as the case may be, appear on their
face to comply as to form in all material respects with the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder.
(ix) Neither the Company nor any Subsidiary is in violation of its
charter or by-laws and no default by the Company or any Subsidiary exists in the
due performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument that is described or referred to in the
Registration Statement or the Prospectus or filed or incorporated by reference
as an exhibit to the Registration Statement.
(x) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries or its or their property is pending or, to the best
knowledge of the Company, threatened that could reasonably be expected to have a
Material Adverse Effect, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the
Prospectus.
(xi) The Company, the Trust and the Subsidiaries possess all
licenses, certificates, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities necessary to
conduct their respective businesses, and neither the Company, the Trust nor any
such Subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect, whether or not arising
from transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectus.
(xii) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than under the Act and the Trust
Indenture Act, which have been obtained or made, or as may be required under the
securities or blue sky laws of the various states, as to which we
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<PAGE> 26
express no opinion) is necessary or required in connection with the due
authorization, execution and delivery of the Agreement or for the offering,
issuance, sale or delivery of the Securities.
(xiii) The execution, delivery and performance of the Agreement and
the Company Agreements and the consummation of the transactions contemplated in
the Agreement and in the Registration Statement (including the issuance and sale
of the Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use Of Proceeds") and compliance
by each of the Company and the Trust with its obligations under the Agreement
and the Company Agreements do not and will not, whether with or without the
giving of notice or lapse of time or both, conflict with or constitute a breach
of, or default or similar event under or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company or
any Subsidiary pursuant to any written contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other agreement or
instrument, known to us, to which the Company or any Subsidiary is a party or by
which it or any of them may be bound, or to which any of the property or assets
of the Company or any Subsidiary is subject (except for such conflicts, breaches
or defaults or liens, charges or encumbrances that would not have a Material
Adverse Effect), nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any Subsidiary, or any applicable
law, statute, rule, regulation, judgment, order, writ or decree, known to us, of
any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any Subsidiary or any of their respective
properties, assets or operations.
(xiv) Neither the Company nor the Trust is an "investment company"
or an entity "controlled" by an "investment company," as such terms are defined
in the 1940 Act.
(xv) The Company is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended (the "Bank Holding Company
Act"), and the regulations of the Board of Governors of the Federal Reserve
System (the "Federal Reserve"), and the deposit accounts of the Company's
subsidiary banks are insured by the Federal Deposit Insurance Corporation
("FDIC") to the fullest extent permitted by law and the rules and regulations of
the FDIC, and no proceeding for the termination of such insurance are pending or
threatened.
(xvi) The statements set forth in (i) the Prospectus under the
captions "Description of Debt Securities," "Description of Capital Securities,"
"Description of Guarantees," and "Relationship Among the Capital Securities, the
Corresponding Junior Subordinated Debentures and the Guarantees," and (ii) in
the Prospectus as amended or supplemented under the captions "Certain Terms of
Capital Securities" and "Certain Terms of the Junior Subordinated Debentures"
insofar as they constitute a summary of the terms of the Securities,
Subordinated Debentures, the Guarantees and the Company Agreements, and (x) in
the Prospectus under the caption "Underwriting" and (y) in the Prospectus as
amended or supplemented under the caption "Underwriting," insofar as they
purport to describe the provisions of the laws and documents referred to
therein, in each case are accurate, complete and fair.
(xvii) The statements made in the Prospectus under the caption "United
States Federal Income Taxation" to the extent they matters of law or legal
conclusions, have been reviewed by such
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<PAGE> 27
counsel and are accurate and correct in all material respects and fairly present
the information set forth therein.
(xviii) The Junior Subordinated Debentures will be treated for United
States federal income tax purposes as indebtedness of the Company.
(xix) The Trust will be treated for United States federal income tax
purposes as a grantor trust and not as an association taxable as a corporation.
We have participated in conferences with officers and other
representatives of the Issuers, representatives of the Underwriters and
representatives of the independent public accountants for the Issuers at which
conferences the contents of the Prospectus and the Registration Statement and
related matters were discussed and, although we have not independently verified,
are not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus (except as otherwise indicated above), we advise you
that, on the basis of the foregoing (relying as to materiality to the extent we
deem appropriate upon the opinions of officers and other representatives of the
Issuers), no facts have come to our attention that lead us to believe that the
Registration Statement or any amendment thereto, at the time such Registration
Statement or any such amendment became effective, 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 or that the
Prospectus, as of its date or as of the date hereof, contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being understood
that we express no comment with respect to the Forms T-1 or the financial
statements, including the notes thereto, or any other financial or statistical
data found in or derived from the internal accounting and other records of the
Company and its Subsidiaries set forth or referred to in the Registration
Statement or the Prospectus).
B-4
<PAGE> 28
EXHIBIT B
FORM OF OPINION OF DELAWARE COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(d)
Capitalized terms used herein shall have the same definitions
as set forth in the underwriting agreement (the "Agreement") to which this
Exhibit B is attached.
(i) The Trust is a duly formed and validly existing statutory
business trust in good standing under the Business Trust Act of the State of
Delaware with the business trust power and authority to enter into and perform
its obligations under this Agreement, the Securities, the Common Securities and
the Trust Agreement and to own property and conduct its business as described in
the Prospectus.
(ii) Under the Delaware Business Trust Act and the Trust Agreement,
the execution and delivery by the Trust of this Agreement, and the performance
by the Trust of its obligations hereunder, have been duly authorized by all
necessary business trust action on the part of the Trust.
(iii) The Trust Agreement constitutes a valid and binding obligation
of the Company and the Trustees, enforceable against the Company and the
Trustees, in accordance with its terms, subject, as to enforcement, to the
effect upon the Trust Agreement of (a) bankruptcy, insolvency, moratorium,
receivership, liquidation, fraudulent conveyance, reorganization and other
similar laws relating to or affecting the remedies and rights of creditors, (b)
general principles of equity (regardless of whether considered or applied in a
proceeding in equity or at law), (c) considerations of public policy or the
effect of applicable law relating to fiduciary duties, and (iv) principles of
course of dealing or course of performance and standards of good faith, fair
dealing, materiality or reasonableness that may be applied by a court to the
exercise of rights or remedies.
(iv) The Common Securities have been duly authorized for issuance by
the Trust and upon issuance and delivery by the Trust to the Company against
payment therefor as described in the Trust Agreement, will be duly and validly
issued and, subject to the qualifications set forth herein, fully paid and
non-assessable beneficial interests in the Trust; the issuance of the Common
Securities is not subject to preemptive or other similar rights under the Trust
Agreement or the Business Trust Act provide that such counsel may note that the
holders of Common Securities may be required to make payment or provide
indemnity or security as set forth in the Trust Agreement.
(v) The Securities have been duly authorized for issuance by the
Trust, and, when issued and delivered against payment therefor as provided
herein, will be duly and validly issued and, subject to the qualifications set
forth herein, fully paid and non-assessable beneficial interests in the Trust;
the issuance of the Securities is not subject to preemptive or other similar
rights under the Trust Agreement or the Business Trust Act; and the Security
holders will be
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<PAGE> 29
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; provided that such counsel need express no opinion as
to any holder of a Security that is, was or becomes a named Trustee of the
Trust. Such counsel may note that the holders of the Securities may be required
to make payment or provide indemnity or security as set forth in the Trust
Agreement.
(vi) The issuance and sale by the Trust of the Securities and the
Common Securities, the execution, delivery and performance by the Trust of the
Agreement, the consummation by the Trust of the transactions contemplated
therein and the compliance by the Trust with its obligations thereunder do not
violate (a) any of the provisions of the Certificate of Trust of the Trust or
the Trust Agreement or (b) any applicable Delaware law or Delaware
administrative regulation.
(vii) Assuming that the Trust derives no income from or connected
with sources within the State of Delaware and has no assets, activities (other
than having a Delaware trustee as required by the Delaware Business Trust Act
and the filing of documents with the Secretary of State of the State of
Delaware) or employees in the State of Delaware, no authorization, approval,
consent or order of any Delaware court or Delaware governmental authority or
Delaware agency is required to be obtained by the Trust solely as a result of
the issuance and sale of the Securities, the consummation by the Trust of the
transactions contemplated herein or the compliance by the Trust of its
obligations hereunder, except such as have been obtained and such as may be
required by the securities laws of the State of Delaware (as to which such
counsel need express no opinion);
(viii) Assuming that the Trust derives no income from or connected
with sources within the State of Delaware and has no assets, activities (other
than having a Delaware trustee as required by the Delaware Business Trust Act
and the filing of documents with the Secretary of State of the State of
Delaware) or employees in the State of Delaware, and assuming that the Trust is
treated as a grantor trust for federal income tax purposes and that the holders
of the Securities are viewed for federal income tax purposes as owners of either
all of, or their liquidation and accrued but unpaid share of, the Corresponding
Subordinated Debt Securities held by the Trust, the Security holders (other than
those holders of the Securities, or persons who are partners or S corporation
shareholders for federal income tax purposes in such holders of Securities, who
reside or are domiciled in the State of Delaware or who are otherwise subject to
income taxation in the State of Delaware) will have no liability for income
taxes imposed by the State of Delaware solely as a result of their participation
in the Trust, and the Trust will not be liable for any income tax imposed by the
State of Delaware (in rendering the opinion expressed in this paragraph (viii),
such counsel need express no opinion concerning the securities laws of the State
of Delaware).
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<PAGE> 30
ANNEX A/ANNEX B
FORM OF ACCOUNTANTS' COMFORT LETTER
We are independent public accountants with respect to the Company within the
meaning of the 1933 Act and the applicable published 1933 Act Regulations
(i) in our opinion, the audited financial statements and the
related financial statement schedules included or incorporated by reference in
the Registration Statement and the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and the
published rules and regulations thereunder;
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a reading
of the unaudited interim consolidated financial statements of the Company for
the three month periods ended and , the three and six
month periods ended and and the three and nine month
periods ended and , included or incorporated by
reference in the Registration Statement and the Prospectus (collectively, the
"10-Q Financials") , a reading of the unaudited interim consolidated financial
statements of the Company for the -month periods ended and
, included in the Registration Statement and the Prospectus (the
" -month financials") , a reading of the latest available unaudited interim
consolidated financial statements of the Company, a reading of the minutes of
all meetings of the stockholders and directors of the Company and its
subsidiaries and the and Committees of the Company's
Board of Directors and any subsidiary committees since day after end of last
audited period, inquiries of certain officials of the Company and its
subsidiaries responsible for financial and accounting matters, a review of
interim financial information in accordance with standards established by the
American Institute of Certified Public Accountants in Statement on Auditing
Standards No. 71, Interim Financial Information ("SAS 71"), with respect to the
description of relevant periods and such other inquiries and procedures as may
be specified in such letter, nothing came to our attention that caused us to
believe that:
(A) the 10-Q Financials incorporated by reference in the
Registration Statement and the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the 1934 Act
and the 1934 Act Regulations applicable to unaudited financial statements
included in Form 10-Q or any material modifications should be made to the 10-Q
Financials incorporated by reference in the Registration Statement and the
Prospectus for them to be in conformity with generally accepted accounting
principles;
(B) the -month financials included in the
Registration Statement and the Prospectus do not comply as to form in all
material respects with the applicable
AA-1
<PAGE> 31
accounting requirements of the 1933 Act and the 1933 Act Regulations applicable
to unaudited interim financial statements included in registration statements or
any material modifications should be made to the -month financials included
in the Registration Statement and the Prospectus for them to be in conformity
with generally accepted accounting principles;
(C) at and at a specified date not more
than five days prior to the date of this Agreement, there was any change in the
Shareholders' Equity of the Company and its subsidiaries or any decrease in the
Total Current Assets of the Company and its subsidiaries or any increase in the
Long -term Debt of the Company and its subsidiaries, in each case as compared
with amounts shown in the latest balance sheet included in the Registration
Statement, except in each case for changes, decreases or increases that the
Registration Statement discloses have occurred or may occur; or
(D) for the period from to and for
the period from to a specified date not more than five days prior
to the date of this Agreement, there was any decrease in Net Sales, Earnings
Before Extraordinary Loss or Net Earnings, in each case as compared with the
comparable period in the preceding year, except in each case for any decreases
that the Registration Statement discloses have occurred or may occur;
(iii) based upon the procedures set forth in clause (ii) above
and a reading of the Selected Financial Data included in the Registration
Statement and a reading of the financial statements from which such data were
derived, nothing came to our attention that caused us to believe that the
Selected Financial Data included in the Registration Statement do not comply as
to form in all material respects with the disclosure requirements of Item 301 of
Regulation S-K, that the amounts included in the Selected Financial Data are not
in agreement with the corresponding amounts in the audited consolidated
financial statements for the respective periods or that the financial statements
not included in the Registration Statement from which certain of such data were
derived are not in conformity with generally accepted accounting principles;
(iv) we have compared the information in the Registration
Statement under selected captions with the disclosure requirements of Regulation
S-K and, on the basis of limited procedures specified herein, nothing came to
our attention that caused us to believe that this information does not comply as
to form in all material respects with the disclosure requirements of Items 302,
402 and 503(d), respectively, of Regulation S-K;
(v) based upon the procedures set forth in clause (ii) above,
a reading of the unaudited financial statements of the Company for the most
recent period that have not been included in the Registration Statement and a
review of such financial statements in accordance with SAS No. 71, nothing came
to our attention that caused us to believe that the unaudited
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<PAGE> 32
amounts for Net Sales, Net Earnings or Shareholders' Equity for the most recent
period do not agree with the amounts set forth in the unaudited consolidated
financial statements for those periods or that such unaudited amounts were not
determined on a basis substantially consistent with that of the corresponding
amounts in the audited consolidated financial statements;
(vi) in addition to the procedures referred to in clause (ii)
above, we have performed other procedures, not constituting an audit, with
respect to certain amounts, percentages, numerical data and financial
information appearing in the Registration Statement, which are specified herein,
and have compared certain of such items with, and have found such items to be in
agreement with, the accounting and financial records of the Company.
AA-3
<PAGE> 1
EXHIBIT 3.1
ARTICLES OF INCORPORATION
OF
OLD NATIONAL BANCORP
ARTICLE I
NAME
The name of the Corporation is Old National Bancorp.
ARTICLE II
PURPOSES
The purposes for which the Corporation is formed are:
SECTION 1. To acquire control of Old National Bank in Evansville and to
operate as a bank holding company.
SECTION 2. GENERAL POWERS. To possess, exercise, and enjoy all rights,
powers and privileges conferred upon bank holding companies by the Bank Holding
Company Act of 1956 as amended and as hereafter amended or supplemented, and all
other rights and powers authorized by the laws of the State of Indiana, and the
laws of the United States of America applicable to bank holding companies and
the regulations of the Board of Governors of the Federal Reserve System.
SECTION 3. TO DEAL IN REAL PROPERTY. Subject to the limitations of
Section 2 above, to acquire by purchase, exchange, lease or otherwise, and to
hold, own, use, construct, improve, equip, manage, occupy, mortgage, sell,
lease, convey, exchange or otherwise dispose of, alone or in conjunction with
others, real estate and leaseholds of every kind, character and description
whatsoever and wheresoever situated, and any other interests therein, including,
but without limiting the generality thereof, buildings, factories, warehouses,
offices and structures of all kinds.
SECTION 4. CAPACITY TO ACT. Subject to limitations of Section 2 above,
to have the capacity to act possessed by natural personals and to perform such
acts as are necessary and advisable to accomplish the purposes, activities and
business of the Corporation.
SECTION 5. TO ACT AS AGENT. Subject to the limitations of Section 2
above, to act as agent or representative for any firm, association, corporation,
partnership, government or person, public or private, with respect to any
activity or business of the Corporation.
SECTION 6. TO MAKE CONTRACTS AND GUARANTEES. Subject to the limitations
of Section 2 above, to make, execute and perform, or cancel and rescind,
contracts of every kind and description, including guarantees and contracts of
suretyship, with any firm, association, corporation, partnership, government or
person, public or private.
<PAGE> 2
SECTION 7. TO BORROW FUNDS. Subject to the limitations of Section 2
above, to borrow moneys for any activity or business of the Corporation and,
from time to time, without limit as to amount, to draw, make, accept, endorse,
execute and issue promissory notes, drafts, bills of exchange, warrants, bonds,
debentures, notes, trust receipts, and other negotiable or non-negotiable
instruments and evidences of indebtedness, and to secure the payment thereof,
and the interest thereon, by mortgage, pledge, conveyance, or assignment in
trust of all or any part of the assets of the Corporation, real, personal or
mixed, including contract rights, whether at the time owned or thereafter
acquired, and to sell, exchange or otherwise dispose of such securities or other
obligations of the Corporation.
SECTION 8. TO DEAL IN ITS OWN SECURITIES. Subject to the limitations of
Section 2 above, to purchase, take, receive or otherwise acquire, and to hold,
own, pledge, transfer or otherwise dispose of shares of its own capital stock
and other securities. Purchases of the Corporation's own shares, whether direct
or indirect, may be made without shareholder approval only to the extent of
unreserved and unrestricted earned surplus available therefor.
ARTICLE III
PERIOD OF EXISTENCE
The period during which the Corporation shall continue is perpetual.
ARTICLE IV
RESIDENT AGENT AND PRINCIPAL OFFICE
SECTION 1. RESIDENT AGENT. The name and address of the Corporation's
Resident Agent for service of process is Jeff Knight, 420 Main Street,
Evansville, Indiana 47708.
SECTION 2. PRINCIPAL OFFICE. The post office address of the principal
office of the Corporation is 420 Main Street, Evansville, Indiana 47708.
ARTICLE V
SHARES OF STOCK
SECTION 1. NUMBER. The total number of shares of capital stock which
the Corporation has authority to issue is 77,000,000 shares, all of which shall
be divided into two classes of shares to be designated "Common Stock" and
"Preferred Stock," respectively, as follows:
75,000,000 shares of Common Stock, without par value; and
2,000,000 shares of Preferred Stock, without par value.
SECTION 2. TERMS AND VOTING RIGHTS OF CAPITAL STOCK. A statement of the
designations, relative
2
<PAGE> 3
rights, preferences, powers, qualifications, limitations and restrictions
granted to or imposed upon the respective classes of the shares of capital stock
or the holders thereof is as follows:
A. Series A Preferred Stock:
(a) Designation and Amount. The shares of such series shall be
designated as "Series A Preferred Stock" (the "Series A Preferred
Stock") and the number of shares constituting the Series A
Preferred Stock shall be 200,000. Such number of shares may be
increased or decreased by resolution of the Board of Directors;
provided, that no decrease shall reduce the number of shares of
Series A Preferred Stock to a number less than the number of
shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or
warrants or upon the conversion of any outstanding securities
issued by the Corporation convertible into Series A Preferred
Stock.
(b) Dividends and Distributions.
(i) Subject to the rights of the holders of any shares of any
series of Preferred Stock (or any other stock) ranking prior
and superior to the Series A Preferred Stock with respect to
dividends, the holders of shares of Series A Preferred Stock
shall be entitled to receive, when, as and if declared by
the Board of Directors out of funds legally available for
the purpose, quarterly dividends payable in cash on the
first day of March, June, September and December in each
year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of
a share or fraction of a share of Series A Preferred Stock,
in an amount (if any) per share (rounded to the nearest
cent) equal to the greater of (a) $1.00 or (b) subject to
the provision for adjustment hereinafter set forth, 100
times the aggregate per share amount of all cash dividends,
and 100 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions,
other than a dividend payable in shares of Common Stock, no
par value (the "Common Stock"), of the Corporation or a
subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock
since the immediately preceding Quarterly Dividend Payment
Date or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or
fraction of a share of Series A Preferred Stock. In the
event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount
to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event under Clause (b) of
the preceding sentence shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number
of shares of Common Stock that were outstanding immediately
after such event and the denominator of which is the number
of shares of Common Stock that were outstanding immediately
prior to such event.
3
<PAGE> 4
(ii) The Corporation shall declare a dividend or distribution on
the Series A Preferred Stock as provided in subparagraph
(i) of this Section 2(A)(b) immediately after it declares a
dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that,
in the event no dividend or distribution shall have been
declared on the Common Stock during the period between any
Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $1.00 per
share on the Series A Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
(iii) Dividends due pursuant to subparagraph (i) of this Section
2(A)(b) shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the
Quarterly Dividend Payment Date next preceding the date of
issue of such shares, unless the date of issue of such
shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such
shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the
determination of holders of shares of Series A Preferred
Stock entitled to receive a quarterly dividend and before
such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Series A Preferred Stock in
an amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may
fix a record date for the determination of holders of
shares of Series A Preferred Stock entitled to receive
payment of a dividend or distribution declared thereon,
which record date shall be not more than 60 days prior to
the date fixed for the payment thereof.
(c) Voting Rights. The holders of shares of Series A Preferred Stock
shall have the following voting rights.
(i) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall
entitled the holder thereof to 100 votes on all matters
submitted to a vote of the shareholders of the Corporation.
In the event the Corporation shall at any time declare or
pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then the number of votes per
share to which holders of shares of Series A Preferred
Stock were entitled immediately prior to such event shall
be adjusted by multiplying such number by a fraction, the
numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the
denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such
event.
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(ii) Except as otherwise provided herein, in any Articles
of Amendment of the Articles of Incorporation creating a
series of Preferred Stock or any similar stock, or by law,
the holders of shares of Series A Preferred Stock and the
holders of shares of Common Stock and any other capital
stock of the Corporation having general voting rights
shall vote together as one class on all matters submitted
to a vote of shareholders of the Corporation.
(iii) Except as set forth herein, or as otherwise provided
by law, holders of Series A Preferred Stock shall have no
voting rights.
(d) Certain Restrictions.
(i) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as
provided in Section 2(A)(b) are in arrears, thereafter and
until all accrued and unpaid dividends and distributions,
whether or not declared, on shares of Series A Preferred
Stock outstanding shall have been paid in full, the
Corporation shall not:
(A) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred
Stock;
(B) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred
Stock, except dividends paid ratably on the Series A
Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such
shares are then entitled; or
(C) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred
Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any
such junior stocks in exchange for shares of any stock
of the Corporation ranking junior (as to dividends and
upon dissolution, liquidation or winding up) to the
Series A Preferred Stock.
(ii) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for
consideration any shares of stock of the Corporation unless
the Corporation could, under subparagraph (i) of this
Section 2(A)(d), purchase or otherwise acquire such shares
at such time and in such manner.
(e) Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of Preferred
Stock and may be reissued as part of a new series of Preferred
Stock subject to the conditions and restrictions on issuance set
forth herein, in the Articles of Incorporation, or in any other
Articles of Amendment of the Articles of Incorporation creating a
series of Preferred Stock or any similar stock or as otherwise
required by law.
(f) Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution
shall be made (1) to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution
or winding up) to the Series A Preferred Stock unless, prior
thereto, the holders of shares of Series A Preferred Stock shall
have received $100.00 per share, plus an amount equal to accrued
and unpaid
5
<PAGE> 6
dividends and distributions thereon whether or not declared, to
the date of such payment, provided that the holders of Series A
Preferred Stock shall be entitled to receive an aggregate amount
per share, subject to the provision for adjustment hereinafter
set forth, equal to 100 times the aggregate amount to be
distributed per share to holders of shares of Common Stock plus
an amount equal to any accrued an unpaid dividends, or (2) to the
holders of shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with
the Series A Preferred Stock, except distributions made with the
Series A Preferred Stock and all such parity stock in proportion
to the total amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution or winding up. In the
event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock
then in each such case the aggregate amount set forth in the
preceding sentence to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event
shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(g) Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction
in which the shares of Common Stock are exchanged for or changed
into other stock or securities, cash and/or any other property,
then in any such case each share of Series A Preferred Stock
shall at the same time be similarly exchanged or changed into an
amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount of
stock, securities, cash and/or any other property (payable in
kind), as the case may be, into which or for which each share of
Common Stock is changed or exchanged. In the event the
Corporation shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater
or lesser number of shares of Common Stock, then in each such
case the amount set forth in the preceding sentence with respect
to the exchange or change of shares of Series A Preferred Stock
shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(h) No Redemption. The shares of Series A Preferred Stock shall not
be redeemable.
(i) Amendment. The Articles of Incorporation of the Corporation shall
not be amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series A
Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of at least (two-thirds) of the
outstanding shares of Series A Preferred Stock, voting together
as a single class.
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<PAGE> 7
(B) Preferred Stock.
Shares of Preferred Stock may be issued from time to time in one
or more additional series. Such shares of Preferred Stock may be
redeemed, purchased or otherwise acquired by the Corporation,
subject to any limitation or restriction, if any, as is contained
in the express terms of any series, and may be reissued except as
otherwise provided by law.
(C) Common Stock. Each share of Common Stock shall be equal to every
other share of Common Stock, and except as otherwise provided by
law or by these Articles of Incorporation (including the
provisions authorizing the Board of Directors to bestow voting
rights on any series of Preferred Stock), the holders of the
outstanding shares of Common Stock shall have and possess the
exclusive right to notice of shareholders? meetings and to vote
on all matters presented to shareholders and shall be entitled to
one vote for each share of Common Stock held of record by them on
all matters including elections of directors.
Subject to the rights of any series of Preferred Stock authorized
by the Board of Directors as provided by the Articles of
Incorporation, the holders of the outstanding shares of Common
Stock shall be entitled to dividends as and when declared by the
Board of Directors out of funds of the Corporation legally
available for the payment of dividends.
ARTICLE VI
REQUIREMENTS PRIOR TO DOING BUSINESS
The Corporation will not commence business until consideration of
the value of at least $1,000 (one thousand dollars) has been received for the
issuance of shares.
ARTICLE VII
DIRECTOR(S)
SECTION 1. NUMBER OF DIRECTORS. The initial Board of Directors is
composed of 23 members. The number of directors may be from time to time fixed
by the By-Laws of the Corporation at any number. In the absence of a By-Law
fixing the number of directors, the number shall be 23.
SECTION 2. QUALIFICATIONS OF DIRECTORS. Directors need not be
shareholders of the Corporation.
ARTICLE VIII
INCORPORATOR
The name and post office address of the incorporator of the Corporation is:
Number and
Name Street or Building City, State & Zip Code
---- ------------------ -------------------------
Robert Carlton 420 Main Street Evansville, Indiana 47708
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ARTICLE IX
PROVISIONS FOR REGULATION OF BUSINESS
AND CONDUCT OF AFFAIRS OF CORPORATION
SECTION 1. MEETINGS OF SHAREHOLDERS. Meetings of Shareholders of the
Corporation shall be held at such place, within or without the State of Indiana,
as may be specified in the notices or waivers of notices of such meetings.
SECTION 2. MEETINGS OF DIRECTORS. Meetings of Directors of the
Corporation shall be held at such place, within or without the State of Indiana,
as may be specified in the notices or waivers of notice of such meetings.
SECTION 3. CONSIDERATION FOR SHARES. Shares of stock of the Corporation
shall be issued or sold in such manner and for such amount of consideration as
may be fixed from time to time by the Board of Directors.
SECTION 4. BY-LAWS OF THE CORPORATION. The Board of Directors by a
majority vote of the actual number of Directors elected and qualified from time
to time shall have the power, without the assent or vote of the shareholders, to
make, alter, amend or repeal the By-Laws of the Corporation.
The Board of Directors may, by resolution adopted by a majority of the
actual number of Directors elected and qualified, from time to time, designate
from among its members an executive committee and one or more other committees,
each of which, to the extent provided in the resolution, the Articles of
Incorporation, or the By-Laws, may exercise all of the authority of the Board of
Directors of the Corporation, including, but not limited to, the authority to
issue and sell or approve any contract to issue and sell, securities or shares
of the Corporation or designate the terms of a series of a class of securities
or shares of the Corporation. The terms which may be affixed by each such
committee include, but are not limited to, the price, dividend rate, and
provisions of redemption, a sinking fund, conversion, voting, or preferential
rights or other features of securities or class or series of a class of shares.
Each such committee may have full power to adopt a final resolution which sets
forth those terms and to authorize a statement of such terms to be filed with
the Secretary of State. However, no such committee has the authority to declare
dividends or distributions, amend the Articles of Incorporation or the By-Laws,
approve a plan of merger or consolidation even if such plan does not require
shareholder approval, reduce earned or capital surplus, authorize or approve the
reacquisition of shares unless pursuant to a general formula or method specified
by the Board of Directors, or recommend to the shareholders a voluntary
dissolution of the Corporation or a revocation thereof. No member of any such
committee shall continue to be a member thereof after he ceases to be a Director
of the Corporation. The calling and holding of meetings of any such committee
and its method of procedure shall be determined by the Board of Directors. A
member of the Board of Directors shall not be liable for any action taken by any
such committee if he is not a member of that committee and has acted in good
faith and in a manner he reasonably believes is in the best interest of the
Corporation.
SECTION 5. CONSENT ACTION BY SHAREHOLDERS. Any action required by
statute to be taken at a meeting of the shareholders, or any action which may be
taken at a meeting of the shareholders, may be taken without a meeting if, prior
to such action, a consent in writing, setting forth the action so taken, shall
be signed by all of the shareholders entitled to vote with respect to the
subject matter thereof, and such written consent is filed with the minutes of
the proceedings of the shareholders.
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SECTION 6. CONSENT ACTION BY DIRECTORS. Any action required or
permitted to be taken at any meeting of the Board of Directors or any committee
thereof may be taken without a meeting, if prior to such action a written
consent to such action is signed by all members of the Board of Directors or
such committee, as the case may be, and such written consent is filed with the
minutes of proceedings of the Board of Directors or committee.
SECTION 7. INTEREST OF DIRECTORS IN CONTRACTS. Any contract or other
transaction between the Corporation or any corporation in which this Corporation
owns a majority of the capital stock shall be valid and binding, notwithstanding
that the directors or officers of this Corporation are identical or that some or
all of the directors or officers, or both, are also directors or officers of
such other corporation.
Any contract or other transaction between the Corporation and one or
more of its directors or members or employees, or between the Corporation and
any firm of which one or more of its directors are members or employees or in
which they are interested, or between the Corporation and any corporation or
association of which one or more of its directors are stockholders, members,
directors, officers, or employees or in which they are interested, shall be
valid for all purposes notwithstanding the presence of such director or
directors at the meeting of the Board of Directors of the Corporation which acts
upon, or in reference to, such contract or transaction and notwithstanding his
or their participation in such action, if the fact of such interest shall be
disclosed or known to the Board of Directors and the Board of Directors shall
authorize, approve and ratify such contract or transaction by a vote of a
majority of the directors present, such interested director or directors to be
counted in determining whether a quorum is present, but not to be counted in
calculating the majority of such quorum necessary to carry such vote. This
Section shall not be construed to invalidate any contract or other transaction
which would otherwise be valid under the common and statutory law applicable
thereto.
SECTION 8. INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES. Every
person who is or was a director, officer or employee of this Corporation or of
any other corporation for which he is or was serving in any capacity at the
request of this Corporation shall be indemnified by this Corporation against any
and all liability and expense that may be incurred by him in connection with or
resulting from or arising out of any claim, action, suit or proceeding, provided
that such person is wholly successful with respect thereto or acted in good
faith in what he reasonably believed to be in or not opposed to the best
interests of this Corporation or such other corporation, as the case may be,
and, in addition, in any criminal action or proceeding in which he had no
reasonable cause to believe that his conduct was unlawful. As used herein,
"claim, action, suit or proceeding" shall include any claim, action, suit or
proceeding (whether brought by or in the right of this Corporation or such other
corporation or otherwise), civil, criminal, administrative or investigative,
whether actual or threatened or in connection with an appeal relating thereto,
in which a director, officer or employee of this Corporation may become
involved, as a party or otherwise,
(i) by reason of his being or having been a director, officer of
employee of this Corporation or such other corporation or
arising out of his status as such or
(ii) by reason of any past or future action taken or not taken by
him in any such capacity, whether or not he continues to be
such at the time such liability or expense is incurred.
The terms "liability" and "expense" shall include, but shall not be limited to,
attorneys' fees and disbursements, amounts of judgments, fines or penalties, and
amounts paid in settlement by or on behalf of a director, officer or employee,
but shall not in any event include any liability or expenses on account of
9
<PAGE> 10
profits realized by him in the purchase or sale of securities of the Corporation
in violation of the law. The termination of any claim, action, suit or
proceeding, by judgment, settlement (whether with or without court approval) or
conviction or upon a plea of guilty or of nolo contendere, or its equivalent,
shall not create a presumption that a director, officer or employee did not meet
the standards of conduct set forth in this paragraph.
Any such director, officer or employee who has been wholly successful
with respect to any such claim, action, suit or proceeding shall be entitled to
indemnification as a matter of right. Except as provided in the preceding
sentence, any indemnification hereunder shall be made only if (i) the Board of
Directors acting by a quorum consisting of Directors who are not parties to or
who have been wholly successful with respect to such claim, action, suit or
proceeding shall find that the director, officer or employee has met the
standards of conduct set forth in the preceding paragraph; or (ii) independent
legal counsel shall deliver to the Corporation their written opinion that such
director, officer or employee has met such standards of conduct.
If several claims, issues or matters of action are involved, any such
person may be entitled to indemnifications as to some matters even though he is
not entitled as to other matters.
The Corporation may advance expenses to or, where appropriate, may at
its expense undertake the defense of any such director, officer or employee upon
receipt of an undertaking by or on behalf of such person to repay such expenses
if it should ultimately be determined that he is not entitled to indemnification
hereunder.
The provisions of this Section shall be applicable to claims, actions,
suits or proceedings made or commenced after the adoption hereof, whether
arising from acts or omissions to act during, before or after the adoption
hereof.
The rights of indemnification provided hereunder shall be in addition
to any rights to which any person concerned may otherwise be entitled by
contract or as a matter of law and shall inure to the benefit of the heirs,
executors and administrators of any such person.
The Corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the Corporation
or is or was serving at the request of the Corporation or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation against any liability asserted against him and incurred by
him in any capacity or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this Section or otherwise.
SECTION 9. DISTRIBUTIONS OUT OF CAPITAL SURPLUS. The Board of Directors
of the Corporation may from time to time distribute to its shareholders out of
the capital surplus of the Corporation a portion of its assets, in cash or
property, without the assent or vote of the shareholders, provided that with
respect to such a distribution the requirements of The Indiana General
Corporation Act other than shareholder approval are satisfied.
SECTION 10. POWERS OF DIRECTORS. In addition to the powers and the
authority granted by these Articles or by statute expressly conferred, the Board
of Directors of the Corporation is hereby authorized to exercise all powers and
to do all acts and things as may be exercised or done under the laws of the
State of
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Indiana by a corporation organized and existing under the provisions of The
Indiana General Corporation Act and not specifically prohibited or limited by
these Articles.
SECTION 11. VOTING RIGHTS ON BUSINESS COMBINATIONS. The affirmative
vote of the holders of not less than eighty percent (80%) of the outstanding
shares of the common stock of the Corporation shall be required to approve any
business combination (as hereinafter defined) which is not approved and
recommended by the vote of two-thirds (2/3) of the entire Board of Directors of
the Corporation. All other business combinations will require the affirmative
vote of a majority of the outstanding shares of common stock of the Corporation.
This Section 11 of Article IX shall not be altered, amended or repealed except
by the affirmative vote of the holders of not less than 80% of the outstanding
shares of common stock of the Corporation, given at a shareholders' meeting duly
called for that purpose, on a proposal adopted and recommended by the vote of
two-thirds (2/3) of the entire Board of Directors of the Corporation.
A "business combination" as utilized herein and in Sections 12 and 13
shall include:
(i) Any merger or consolidation of the Corporation with or into any
other corporation.
(ii) Any sale, lease, exchange, or other disposition of any material
part of the assets of the Corporation or any subsidiary thereof
to or with any other corporation, person, or other entity, or
(iii) any liquidation or dissolution of the Corporation or any
material subsidiary thereof or adoption of any plan with respect
thereto.
SECTION 12. CONSIDERATION OF NON-FINANCIAL FACTORS. In connection with
the exercise of its judgment in determining what is in the best interest of the
Corporation and its shareholders when evaluating a business combination (as
defined in Section 11) or a tender or exchange offer, the Board of Directors of
the Corporation shall, in addition to considering the adequacy of the amount to
be paid in connection with any such transaction, consider all of the following
factors and any other factors which it deems relevant:
(i) The social and economic effects of the transaction on the
Corporation and its subsidiaries, employees, depositors, loan and
other customers, creditors and other elements of the communities
in which the Corporation and its subsidiaries operate or are
located;
(ii) The business and financial condition and earnings prospects of
the acquiring person or persons, including, but not limited to,
debt service and other existing or likely financial obligations
of the acquiring person or persons, and the possible effect of
such conditions upon the Corporation and its subsidiaries and the
other elements of the communities in which the Corporation and
its subsidiaries operate or are located; and
(iii)The competence, experience, and integrity of the acquiring
person or persons and its or their management.
This Section 12 of Article IX shall not be altered, amended or repealed
except by the affirmative vote of the holders of not less than an eighty percent
(80%) of the outstanding common stock of the Corporation, given at a
shareholders' meeting duly called for that purpose, upon a proposal adopted by
the vote of two-thirds (2/3) of the entire Board of Directors of the
Corporation.
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SECTION 13. ACQUISITION OF ADDITIONAL SHARES BY CERTAIN SHAREHOLDERS.
Any person, whether an individual, partnership, corporation, group, or
otherwise, who, separately or in association with one or more persons, acquired
15% of the then outstanding common stock of the Corporation, in connection with
any further, direct or indirect acquisition in connection with a tender or
exchange offer, open market purchase or business combination, is required to
offer and pay for such additional shares a consideration which is at least equal
to the highest percent over market value paid to acquire shares of the
Corporation's common stock then held by such person or his associates. Any
purchase of shares of common stock made in derivation of this Section 13 of
Article IX shall be null and void.
This Section 13 of Article IX shall not be altered, amended or repealed
except by the affirmative vote of the holders of not less than eighty percent
(80%) of the outstanding common stock of the Corporation, given at a
shareholders' meeting duly called for that purpose, upon a proposal adopted by
the vote of two-thirds (2/3) of the entire Board of Directors of the
Corporation.
12
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Exhibit 4.1
[FORM OF INDENTURE]
================================================================================
OLD NATIONAL BANCORP
to
BANK ONE TRUST COMPANY, NA,
as Trustee
---------------
INDENTURE
Dated as of , 1999
---------------
================================================================================
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TABLE OF CONTENTS
<TABLE>
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. Definitions...........................................................................1
SECTION 1.2. Compliance Certificates and Opinions..................................................8
SECTION 1.3. Form of Documents Delivered to Trustee................................................9
SECTION 1.4. Acts of Holders; Record Dates.........................................................9
SECTION 1.5. Notices, Etc., to Trustee and Company................................................10
SECTION 1.6. Notice to Holders; Waiver............................................................11
SECTION 1.7. Conflict with Trust Indenture Act....................................................11
SECTION 1.8. Effect of Headings and Table of Contents.............................................11
SECTION 1.9. Successors and Assigns...............................................................11
SECTION 1.10. Separability Clause..................................................................12
SECTION 1.11. Benefits of Indenture................................................................12
SECTION 1.12. Governing Law........................................................................12
SECTION 1.13. Legal Holidays.......................................................................12
SECTION 1.14. Agreed Tax Treatment.................................................................12
ARTICLE II
SECURITY FORMS
SECTION 2.1. Forms Generally......................................................................13
SECTION 2.2. Form of Face of Security.............................................................13
SECTION 2.3. Form of Reverse of Security..........................................................19
SECTION 2.4. Form of Trustee's Certificate of Authentication......................................21
ARTICLE III
THE SECURITIES
SECTION 3.1. Amount Unlimited; Issuable in Series.................................................22
SECTION 3.2. Denominations........................................................................24
SECTION 3.3. Execution, Authentication, Delivery and Dating.......................................25
SECTION 3.4. Temporary Securities.................................................................26
SECTION 3.5 Global Securities....................................................................26
SECTION 3.6. Registration, Transfer and Exchange..................................................28
SECTION 3.7. Mutilated, Destroyed, Lost and Stolen Securities.....................................29
SECTION 3.8. Payment of Interest; Interest Rights Preserved.......................................29
SECTION 3.9. Persons Deemed Owners................................................................31
SECTION 3.10. Cancellation.........................................................................31
SECTION 3.11. Interest.............................................................................31
SECTION 3.12. Shortening of Stated Maturity........................................................32
SECTION 3.13. Right of Set-Off.....................................................................32
SECTION 3.14. CUSIP Number.........................................................................32
</TABLE>
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ARTICLE IV
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 4.1. Satisfaction and Discharge of Indenture..............................................33
SECTION 4.2. Defeasance and Discharge.............................................................34
SECTION 4.3. Covenant Defeasance..................................................................34
SECTION 4.4. Conditions to Legal Defeasance or Covenant Defeasance................................35
SECTION 4.5. Application of Trust Money...........................................................36
SECTION 4.6. Indemnity for U.S. Government Obligations............................................36
ARTICLE V
DEFAULTS AND REMEDIES
SECTION 5.1. Events of Default....................................................................37
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment...................................38
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee......................39
SECTION 5.4. Trustee May File Proofs of Claim.....................................................40
SECTION 5.5. Trustee May Enforce Claims Without Possession of Securities..........................41
SECTION 5.6. Application of Money Collected.......................................................41
SECTION 5.7. Limitation on Suits..................................................................41
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium and Interest;
Direct Action by Holders of Capital Securities......................................42
SECTION 5.9. Restoration of Rights and Remedies...................................................42
SECTION 5.10. Rights and Remedies Cumulative.......................................................42
SECTION 5.11. Delay or Omission Not Waiver.........................................................43
SECTION 5.12. Control by Holders...................................................................43
SECTION 5.13. Waiver of Past Defaults..............................................................43
SECTION 5.14. Undertaking for Costs................................................................44
ARTICLE VI
THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities..................................................44
SECTION 6.2. Notice of Defaults...................................................................45
SECTION 6.3. Certain Rights of Trustee............................................................45
SECTION 6.4. Not Responsible for Recitals or Issuance of Securities...............................46
SECTION 6.5. May Hold Securities..................................................................47
SECTION 6.6. Money Held in Trust..................................................................47
SECTION 6.7. Compensation and Reimbursement.......................................................47
SECTION 6.8. Disqualification; Conflicting Interests..............................................47
SECTION 6.9. Corporate Trustee Required; Eligibility..............................................48
SECTION 6.10. Resignation and Removal; Appointment of Successor....................................48
SECTION 6.11. Acceptance of Appointment by Successor...............................................49
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business..........................51
SECTION 6.13. Preferential Collection of Claims Against Company....................................51
SECTION 6.14. Appointment of Authenticating Agent..................................................51
</TABLE>
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ARTICLE VII
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders............................53
SECTION 7.2. Preservation of Information; Communications to Holders...............................53
SECTION 7.3. Reports by Trustee...................................................................53
SECTION 7.4. Reports by Company...................................................................54
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms.................................54
SECTION 8.2. Successor Corporation Substituted....................................................55
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without Consent of Holders...................................55
SECTION 9.2. Supplemental Indentures with Consent of Holders......................................56
SECTION 9.3. Execution of Supplemental Indentures.................................................58
SECTION 9.4. Effect of Supplemental Indentures....................................................58
SECTION 9.5. Conformity with Trust Indenture Act..................................................58
SECTION 9.6. Reference in Securities to Supplemental Indentures...................................58
ARTICLE X
COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest...........................................59
SECTION 10.2. Maintenance of Office or Agency......................................................59
SECTION 10.3. Money for Securities Payments to Be Held in Trust....................................59
SECTION 10.4. Statement by Officers as to Default..................................................61
SECTION 10.5. Covenants as to ONB Trusts...........................................................61
[SECTION 10.6. Payment of Expenses and Additional Amounts...........................................62
SECTION 10.7. Listing on an Exchange...............................................................63
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1. Applicability of Article.............................................................63
SECTION 11.2. Election to Redeem; Notice to Trustee................................................64
SECTION 11.3. Selection by Trustee of Securities to Be Redeemed....................................64
SECTION 11.4. Notice of Redemption.................................................................65
SECTION 11.5. Deposit of Redemption Price..........................................................65
SECTION 11.6. Securities Payable on Redemption Date................................................66
SECTION 11.7. Securities Redeemed in Part..........................................................66
SECTION 11.8 Special Event Redemption.............................................................66
ARTICLE XII
</TABLE>
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<TABLE>
<S> <C> <C>
SINKING FUNDS
SECTION 12.1. Applicability of Article.............................................................67
SECTION 12.2. Satisfaction of Sinking Fund Payments with Securities................................67
SECTION 12.3. Redemption of Securities for Sinking Fund............................................67
ARTICLE XIII
DEFERRAL OF INTEREST PAYMENT DATE
SECTION 13.1. Deferral of Interest Payment Date....................................................69
SECTION 13.2. Notice of Deferral...................................................................69
SECTION 13.3. Limitation of Transactions During Interest Payment Deferral Period...................70
ARTICLE XIV
SUBORDINATION OF SECURITIES
SECTION 14.2. Default on Senior Debt...............................................................71
SECTION 14.3. Liquidation; Termination; Bankruptcy.................................................71
SECTION 14.4. Subrogation..........................................................................72
SECTION 14.5. Trustee to Effectuate Subordination..................................................73
SECTION 14.6. Notice by the Company................................................................73
SECTION 14.7. Rights of the Trustee; Holders of Senior Debt........................................74
SECTION 14.8. Subordination May Not Be Impaired....................................................75
ARTICLE XV
MISCELLANEOUS
SECTION 15.1. Acknowledgement of Rights............................................................75
</TABLE>
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Old National Bancorp
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of , 1999
Trust Indenture
Act Section Indenture Section
ss. 310(a)(1).....................6.9
(a)(2).....................6.9
(a)(3).....................Not Applicable
(a)(4).....................Not Applicable
(b)........................6.8
...........................6.10
ss. 311(a)........................6.13(a)
(b)........................6.13(b)
(b)(2).....................7.3(a)(2)
...........................7.3(b)
ss. 312(a)........................7.1
...........................7.2(a)
(b)........................7.2(b)
(c)........................7.2(c)
ss. 313(a)........................7.3(a)
(b)........................7.3(b)
(c)........................7.3(a), 7.3(b)
(d)........................7.3(c)
ss. 314(a)........................7.4
(b)........................Not Applicable
(c)(1).....................1.2
(c)(2).....................1.2
(c)(3).....................Not Applicable
(d)........................Not Applicable
(e)........................1.2
ss. 315(a)........................6.1(a)
(b)........................6.2
...........................7.3(a)(6)
(c)........................6.1(b)
(d)........................6.1(c)
(d)(1).....................6.1(a)(1)
(d)(2).....................6.1(c)(2)
(d)(3).....................6.1(c)(3)
(e)........................5.14
ss. 316(a)........................1.1
(a)(1)(A)..................5.2
...........................5.12
(a)(1)(B)..................5.13
(a)(2).....................Not Applicable
(b)........................5.8
ss. 317(a)(1).....................5.3
(a)(2).....................5.4
(b)........................10.3
ss. 318(a)........................1.7
- ----------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
i
<PAGE> 7
INDENTURE, dated as of , 1999, between OLD NATIONAL BANCORP, a
multi-bank holding company duly organized and under the laws of the State of
Indiana (the "Company"), having its principal office at 420 Main Street,
Evansville, Indiana 47708, and BANK ONE TRUST COMPANY, NA, a national banking
association duly organized and existing under the laws of the United States of
America, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
junior subordinated debentures, notes or other evidences of indebtedness (the
"Securities"), to be issued in one or more series as in this Indenture provided,
including Securities issued to evidence loans made to the Company of the
proceeds from the issuance from time to time by one or more business trusts
(each, an "ONB Trust") of undivided preferred beneficial interests in the assets
of such ONB Trusts (the "Capital Securities") and undivided common beneficial
interests in the assets of such ONB Trusts (the "Common Securities" and,
together with the Capital Securities, the "Trust Securities"), and to provide
the terms and conditions upon which the Securities are to be authenticated,
issued and delivered; 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, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation; and
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(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified
in Section 1.4.
"Additional Amounts" has the meaning specified in Section 10.6.
"Additional Interest" means interest accrued (to the extent that the
payment of such interest shall be legally enforceable) on interest overdue and
unpaid at the rate of % per annum, compounded each Interest Payment Period
and calculated as set forth in Section 2.2 of this Security, from the dates on
which such interest would otherwise have been due and payable until paid or made
available for payment
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"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, and delivered to the Trustee.
"Business Day" means any day other than a Saturday, Sunday or any other
day on which banking institutions in New York, New York are authorized or
obligated by any applicable law to close.
"Capital Securities" means undivided beneficial interests in the assets
of an ONB Trust which rank, except upon the occurrence and continuation of an
Event of Default, pari passu with Common Securities issued by such ONB Trust.
2
<PAGE> 9
"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 Securities" means undivided beneficial interests in the assets
of an ONB Trust which rank, except upon the occurrence and continuation of an
Event of Default, pari passu with Capital Securities issued by such ONB Trust.
"Company" means the Person named as the "Company' in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President, a
Senior Vice President, its Chief Financial Officer or its Corporate Controller,
and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
the State of Illinois at which at any particular time its corporate trust
business shall be principally administered, which at the date hereof is located
at One North State Street, 9th Floor, Chicago, Illinois 60602.
"Covenant Defeasance" has the meaning specified in Section 4.3.
"Defaulted Interest" has the meaning specified in Section 3.8.
"Deferred Interest" has the meaning specified in Section 12.1.
"Delaware Trustee" has the meaning specified in the Trust Agreement of
the applicable ONB Trust.
"Depositary" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Exchange Act that is designated to act as Depositary
for such Securities as contemplated by Section 3.1.
"Direct Action" has the meaning specified in Section 14.1.
"Distributions" on Capital Securities of an ONB Trust has the meaning
set forth in the Trust Agreement of such ONB Trust.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor legislation.
3
<PAGE> 10
"Floating or Adjustable Rate Provision" means a formula or provision,
specified in a Board Resolution or an indenture supplemental hereto, providing
for the determination, whether pursuant to objective factors or pursuant to the
sole discretion of any Person (including the Company), and periodic adjustment
of the interest rate per annum borne by a Floating or Adjustable Rate Security.
"Floating or Adjustable Rate Security" means any Security which
provides for interest to be payable thereon at a rate per annum that may vary
from time to time over the term thereof in accordance with a Floating or
Adjustable Rate Provision.
"Global Security" means a Security that evidences all or part of the
Securities of any series and is authenticated and delivered to, and registered
in the name of, the Depositary for such Securities or a nominee thereof.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"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 pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 3.1.
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Interest Payment Deferral Period" has the meaning specified in Section
12.1.
"Interest Payment Period," when used with respect to any Security,
means the period specified in such Security as the period of accrual of interest
for such Security.
"Interest Rate" has the meaning specified in Section 3.11.
"Issuer Trustees" has the meaning set forth in the Trust Agreement of
the applicable ONB Trust.
"Legal Defeasance" has the meaning specified in Section 4.2.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President, a Senior Vice President, the Chief Financial Officer
or the Corporate Controller, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
4
<PAGE> 11
"ONB Trust" means each of ONB Capital Trust I, ONB Capital Trust II,
ONB Capital Trust III and ONB Capital Trust IV, each a Delaware statutory
business trust, or any other similar trust created for the purpose of issuing
preferred securities in connection with the issuances of Securities under this
Indenture.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
and
(iii) Securities which have been paid pursuant to Section 3.7 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company; provided
that in determining whether the Holders of the requisite principal amount of
the Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding; provided, however, that, in determining whether the Trustee
shall be protected in relying, upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded
and provided, further, that Securities held by the Property Trustee for the
benefit of the holders of the Capital Securities shall not be so
disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Securities
and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (or premium, if any) or interest on any Securities on behalf of the
Company.
5
<PAGE> 12
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.7 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Property Trustee" has the meaning set forth in the Trust Agreement of
the applicable ONB Trust.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Option Date" means, with respect to a series of Securities,
the date specified as contemplated by Section 3.1 on or after which, from time
to time, the Company, at its option, may redeem such series of Securities in
whole or in part.
"Redemption Price," when used with respect to any Security to be
redeemed, means such percentage of the principal amount of such Security that is
specified pursuant to Section 3.1 plus any accrued and unpaid interest thereon
to the Redemption Date.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified as such pursuant
to Section 3.1.
"Responsible Officer" means, with respect to the Trustee, any officer
within the Corporate Trust Office of the Trustee, including any vice-president,
any assistant vice-president, any assistant secretary, the treasurer, any
assistant treasurer or other officer of the Corporate Trust Office of the
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.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Beneficial Owner" means, with respect to a Book Entry
Interest, a person who is the beneficial owner of such Book Entry Interest, as
reflected on the books of the Depositary, or on the books of a Person
maintaining an account with such Depositary (directly as a Depositary
participant or as an indirect participant, in each case in accordance with the
rules of the Depositary).
6
<PAGE> 13
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Senior Debt" means, with respect to the Company, (i) the principal,
premium, if any, and interest in respect of (A) indebtedness of such obligor for
money borrowed and (B) indebtedness evidenced by securities, notes, debentures,
bonds or other similar instruments issued by such obligor; (ii) all capital
lease obligations of such obligor; (iii) all obligations of such obligor issued
or assumed as the deferred purchase price of property, all conditional sale
obligations of such obligor and all obligations of such obligor a trustee of an
ONB Trust under any conditional sale or title retention agreement or (but
excluding trade accounts payable in the ordinary course of business); (iv) all
obligations, contingent or otherwise, of such obligor in respect of any letters
of credit, banker's acceptance, security purchase facilities or similar credit
transactions; (v) all obligations in respect of interest rate swap, cap or other
agreements, interest rate future or option contracts, currency swap agreements,
currency future or option contracts and other similar agreements; (vi) all
obligations of the type referred to in clauses (i) through (v) of other Persons
for the payment of which such obligor is responsible or liable as obligor,
guarantor or otherwise; and (vii) all obligations of the type referred to in
clauses (i) through (vi) of other Persons secured by any lien on any property or
asset of such obligor or a trustee of an ONB Trust (whether or not such
obligation is assumed by such obligor), except for (A) any such indebtedness
that is by its terms subordinated to or pari passu with the Securities, and (B)
any indebtedness between or among such obligor and its Affiliates, including all
other debt securities and guarantees in respect of those debt securities, issued
to (1) any ONB Trust or a trustee of such ONB Trust or (2) any other trust, or a
trustee of such trust, partnership or other entity affiliated with the Company
which is a financing vehicle of the Company (a "Financing Entity") in connection
with the issuance by such Financing Entity of preferred securities or other
securities that rank pari passu with, or junior to, the Capital Securities.
"Special Event," with respect to an ONB Trust, has the meaning
specified in the Trust Agreement of such ONB Trust.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.8.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Termination Event" means, with respect to an ONB Trust, that as a
result of the occurrence and continuation of an Event of Default with respect to
such ONB Trust, such ONB Trust is to be dissolved in accordance with its Trust
Agreement.
"Trust Agreement" means, with respect to an ONB Trust, the amended and
restated trust agreement or any other governing instrument of such ONB Trust.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as in
force at the date as of which this instrument was executed, except as provided
in Section 9.5.
7
<PAGE> 14
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Underwriting Agreement" has the meaning set forth in the Trust
Agreement of the applicable ONB Trust.
"U.S. Government Obligations" has the meaning specified in Section 4.4.
SECTION 1.2. Compliance Certificates and Opinions
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officer's Certificate stating that all conditions precedent, if
any, 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, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include,
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) 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;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him 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 individual,
such condition or covenant has been complied with.
8
<PAGE> 15
SECTION 1.3. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given or
taken by Holders shall be embodied in and evidenced by one or more substantially
similar instruments signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders 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
Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(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 or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
9
<PAGE> 16
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every 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 Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series; provided, that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next succeeding paragraph.
If any record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date. Nothing in this paragraph shall be
construed to prevent the Company from setting a new record date for any action
for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action
by any Person be cancelled and of no effect). Promptly after any record date is
set pursuant to this paragraph, the Company, at its own expense, shall cause
notice of such record date and the proposed action by Holders to be given to the
Trustee in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 1.6.
The Trustee may set any date as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 5.2, (iii) any request to institute
proceedings referred to in Section 5.7(b), or (iv) any direction referred to in
Section 5.12, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date. Nothing in this
paragraph shall be construed to prevent the Trustee from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect). Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Company's
expense, shall cause notice of such record date and the proposed action by
Holders to be given to the Company in writing and to each Holder of Securities
of the relevant series in the manner set forth in Section 1.6.
SECTION 1.5. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
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<PAGE> 17
(a) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Administration; provided, however, that such instrument will be considered
properly given if submitted in an electronic format, i.e., by facsimile, e-mail
or otherwise upon receipt by a Responsible Officer, or
(b) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to it
at the address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company; provided, however, that such instrument will be
considered properly given if submitted by facsimile.
SECTION 1.6. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date and not earlier than the earliest date, prescribed for the
giving of such notice. In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
In any case where notice to Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other
Holders. Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 1.7. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
SECTION 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
11
<PAGE> 18
SECTION 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Debt and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law.
This Indenture and the Securities shall be governed by, and construed
and interpreted in accordance with, the law of the State of New York, without
regard for the conflicts of laws principles thereof.
SECTION 1.13. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be, except that, if such Business Day is in the next succeeding calendar year,
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.
SECTION 1.14. Agreed Tax Treatment.
Each Security issued hereunder shall provide that the Company and, by
its acceptance or acquisition of a Security or a beneficial interest therein,
the Holder of, and any Person that acquires a direct or indirect beneficial
interest in, such Security, intend and agree to treat such Security as debt of
the Company for United States Federal, state and local tax purposes and, with
respect to Securities of a series issued to an ONB Trust, to treat Capital
Securities of such ONB Trust (including but not limited to all payments and
proceeds with respect to such Capital Securities) as an undivided beneficial
ownership interest in the Securities (and payments and proceeds therefrom,
respectively) for United States federal, state and local tax purposes. The
provisions of this Indenture shall be interpreted to further this intention and
agreement of the parties.
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<PAGE> 19
ARTICLE II
SECURITY FORMS
SECTION 2.1. Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such 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 the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of such Securities. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, 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 Company Order contemplated by Section 3.3 for the
authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities may be produced in any manner as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 2.2. Form of Face of Security.
[IF THE SECURITY IS TO BE A GLOBAL SECURITY, INSERT - This Security is
a Global Security within the meaning of the Indenture hereinafter referred to
and is registered in the name of a Depositary or a nominee of a Depositary. This
Security is exchangeable for Securities registered in the name of a person other
than the Depositary or its nominee only in the limited circumstances described
in the Indenture, and no transfer of this Security (other than a transfer of
this Security as a whole by the Depositary to a nominee of the Depositary or by
a nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Security is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York) to the issuer
or its agent for registration of transfer, exchange or payment, and any Security
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of The Depository Trust Company and any payment
hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede &
Co., has an interest herein.]
No.
-----------
13
<PAGE> 20
OLD NATIONAL BANCORP
[INSERT TITLE OF SERIES OF SECURITY]
OLD NATIONAL BANCORP, a multi-bank holding company organized
under the laws of the State of Indiana (the "Company," which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to or registered assigns, the
principal sum of Dollars ($ ) on , [;
provided, that the Company may shorten the Stated Maturity of this Security to a
date not earlier than , at any time on one or more occasions,
subject to certain conditions specified in Section 3.12 of the Indenture], and
to pay interest on said principal sum from , , 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] [semi-annually]
[(subject to deferral as set forth herein)] in arrears on ,
, and of each year commencing ,
, at [If the Security is to bear interest at a fixed rate, insert a rate of
% per annum,] [If the Security is a Floating or Adjustable Rate Security, insert
a rate per annum [determined] in accordance with the [insert defined name of
Floating or Adjustable Rate Provision] set forth below] until the principal
hereof shall have become due and payable, and on any overdue principal and
premium, if any, 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] [semi-annually]. 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. In the event that any date on
which interest is payable on this Security is not a Business Day, then payment
of interest payable on such date will be made on the next succeeding day that is
a Business Day (and without any interest or other payment in respect of any such
delay), except that, if such Business Day is in the next succeeding calendar
year, 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. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities, 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. [IF PURSUANT TO THE
PROVISIONS OF THE INDENTURE THE SECURITIES ARE NO LONGER REPRESENTED BY A GLOBAL
SECURITY -- which shall be the close of business on the Business Day next
preceding such Interest Payment Date.] 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 Security (or one or more Predecessor Securities) 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 whereof shall be given to the
registered Holders of this series of Securities 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 on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. Payments on this Global
Security will be made to The Depository Trust Company, or to a successor
Depositary. [IF PURSUANT TO THE PROVISIONS OF
14
<PAGE> 21
THE INDENTURE THE SECURITIES ARE NO LONGER REPRESENTED BY A GLOBAL SECURITY
- --The principal of (and premium, if any) and the interest on this Security 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 Security Register.
Notwithstanding the foregoing, so long as the Holder of this Security is the
Property Trustee of an ONB Trust, the payment of the principal of (and premium,
if any) and interest on this Security will be made at such place and to such
account as may be designated by such Property Trustee.]
[At this point in the Security Form of any series of Floating or
Adjustable Rate Securities, the text of the Floating or Adjustable Rate
Provision relating thereto should be inserted.]
The Company shall have the right at any time during the term
of the Securities and from time to time to defer the payment of interest of such
Securities for up to consecutive [quarterly] [semi-annual] interest
payment periods (each, an "Interest Payment Deferral Period"), at the end of
which period the Company shall pay all interest then accrued and unpaid
(together with Additional Interest thereon at the rate of % per annum to
the extent that payment of such interest is enforceable under applicable law);
provided, that no such Interest Payment Deferral Period shall extend beyond the
maturity of the Securities; and provided, further, that during any such Interest
Payment Deferral Period (a) the Company shall not 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, (b) the Company
shall not make any payment of interest on or principal of (or premium, if any,
on), or repay, repurchase or redeem, any debt securities issued by the Company
which rank pari passu with or junior to the Securities, and (c) the Company
shall not make any payments on any guarantee with respect to any debt securities
of any of its Affiliates that ranks pari passu with or junior to the Securities
(other than payments under any guarantee relating to the Capital Securities);
provided, that the foregoing restrictions will not apply to (1) repurchases,
redemptions or other acquisitions of shares of capital stock of the Company in
connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of its employees, officers or directors, (2)
dividends or distributions payable on the common stock of the Company pursuant
to any dividend reinvestment or stock purchase plan, (3) payments under any
guarantee relating to the Capital Securities of an ONB Trust or (4) obligations
under any dividend reinvestment plan or stock purchase plan. Before the
termination of any Interest Payment Deferral Period, the Company may further
extend such Interest Payment Deferral Period, provided, that such Interest
Payment Deferral Period together with all such further extensions thereof shall
not exceed consecutive [quarterly] [semi-annual] interest payment periods.
At the termination of any Interest Payment Deferral Period and upon the payment
of all accrued and unpaid interest then due, the Company may commence a new
Interest Payment Deferral Period. No interest shall be due and payable during an
Interest Payment Deferral Period, except at the end thereof, but each
installment of interest that would otherwise have been due and payable during
such Interest Payment Deferral shall accrue Additional Interest (to the extent
that the payment of such interest shall be legally enforceable) at the rate of
% per annum, compounded [quarterly] [semi-annually] and calculated as set
forth in the first paragraph of this Security, from the dates on which amounts
would otherwise have been due and payable until paid or made available for
payment. The Company shall give the Holder of this Security and the Trustee
notice of its election to begin any Interest Payment Deferral Period at least
one Business Day prior to the next succeeding Interest Payment Date on which
interest on this Security would be payable but for such deferral [or so long as
such Securities are held by [insert name of applicable ONB Trust], at least one
Business Day prior to the earlier of (i) the next succeeding date on which
Distributions on the Capital Securities of such ONB Trust would be payable but
for such deferral, and (ii) the date on which the Property Trustee of such ONB
Trust is required to give notice to holders of such Capital Securities of the
record date or the date such Distributions are payable.]
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Debt of the Company, and this Security is
issued subject to the provisions of the Indenture with respect thereto. Each
Holder of this Security, by accepting the same, (a) agrees to and shall be
15
<PAGE> 22
The Company shall have the right at any time during the term
of the Securities and from time to time to defer the payment of interest of such
Securities for up to consecutive [quarterly] [semi-annual] interest
payment periods (each, an "Interest Payment Deferral Period"), at the end of
which period the Company shall pay all interest then accrued and unpaid
(together with Additional Interest thereon at the rate of % per annum to
the extent that payment of such interest is enforceable under applicable law);
provided, that no such Interest Payment Deferral Period shall extend beyond the
maturity of the Securities; and provided, further, that during any such Interest
Payment Deferral Period (a) the Company shall not 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, (b) the Company
shall not make any payment of interest on or principal of (or premium, if any,
on), or repay, repurchase or redeem, any debt securities issued by the Company
which rank pari passu with or junior to the Securities, and (c) the Company
shall not make any payments on any guarantee with respect to any debt securities
of any of its Affiliates that ranks pari passu with or junior to the Securities
(other than payments under any guarantee relating to the Capital Securities);
provided, that the foregoing restrictions will not apply to (1) repurchases,
redemptions or other acquisitions of shares of capital stock of the Company in
connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of its employees, officers or directors, (2)
dividends or distributions payable on the common stock of the Company pursuant
to any dividend reinvestment or stock purchase plan, (3) payments under any
guarantee relating to the Capital Securities of an ONB Trust or (4) obligations
under any dividend reinvestment plan or stock purchase plan. Before the
termination of any Interest Payment Deferral Period, the Company may further
extend such Interest Payment Deferral Period, provided, that such Interest
Payment Deferral Period together with all such further extensions thereof shall
not exceed consecutive [quarterly] [semi-annual] interest payment periods.
At the termination of any Interest Payment Deferral Period and upon the payment
of all accrued and unpaid interest then due, the Company may commence a new
Interest Payment Deferral Period. No interest shall be due and payable during an
Interest Payment Deferral Period, except at the end thereof, but each
installment of interest that would otherwise have been due and payable during
such Interest Payment Deferral shall accrue Additional Interest (to the extent
that the payment of such interest shall be legally enforceable) at the rate of
% per annum, compounded [quarterly] [semi-annually] and calculated as set
forth in the first paragraph of this Security, from the dates on which amounts
would otherwise have been due and payable until paid or made available for
payment. The Company shall give the Holder of this Security and the Trustee
notice of its election to begin any Interest Payment Deferral Period at least
one Business Day prior to the next succeeding Interest Payment Date on which
interest on this Security would be payable but for such deferral [or so long as
such Securities are held by [insert name of applicable ONB Trust], at least one
Business Day prior to the earlier of (i) the next succeeding date on which
Distributions on the Capital Securities of such ONB Trust would be payable but
for such deferral, and (ii) the date on which the Property Trustee of such ONB
Trust is required to give notice to holders of such Capital Securities of the
record date or the date such Distributions are payable.]
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Debt of the Company, and this Security is
issued subject to the provisions of the Indenture with respect thereto. Each
Holder of this Security, by accepting the same, (a) agrees to and shall be
16
<PAGE> 23
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 Debt of the Company, whether now outstanding or hereafter incurred, and
waives reliance by each such holder upon said provisions.
This Security 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 Security 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.
IN WITNESS WHEREOF, the Company has caused this instrument to
be executed.
Dated: _______________
OLD NATIONAL BANCORP
By:_________________________
Name:
Title:
By:_______________________
Name:
Title:
17
<PAGE> 24
SECTION 2.3. Form of Reverse of Security.
This Security is one of a duly authorized series of securities
of the Company (herein sometimes referred to as the "Securities"), specified in
the Indenture, all issued or to be issued in one or more series under and
pursuant to an Indenture dated as of , 1999 (the "Indenture"), duly
executed and delivered between the Company and Bank One Trust Company, NA, as
Trustee (the "Trustee"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the respective rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company, the holders of Senior Debt and the Holders of the
Securities. By the terms of the Indenture, the Securities are issuable in series
that may vary as to amount, date of maturity, rate of interest and in other
respects as provided in the Indenture. This series of Securities is limited in
aggregate principal amount to $ .
[Because of the occurrence and continuation of a Special
Event, in certain circumstances, this Security may become due and payable at
% of the principal amount thereof, together with any interest accrued
thereon (the "Redemption Price"). The Redemption Price shall be paid prior to
12:00 noon, New York City time, on the date of such redemption or at such
earlier time as the Company determines.]
[The Securities of this series are subject to redemption upon
not less than 30 days' nor more than 60 days' notice by mail, (1) on
in any year commencing with the year and ending with the year through
operation of the sinking fund for this series at a Redemption Price of ,
(2) at any time [on or after , ], as a whole or in part, at the
election of the Company, at a Redemption Price equal to % of the principal
amount, together, in the case of any such redemption (whether through operation
of the sinking fund or otherwise), with accrued interest to the Redemption Date,
but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.
Any redemption pursuant to this paragraph will be made upon not less than 30
days nor more than 60 days notice, at the . If the Securities are only
partially redeemed by the Company, the Securities will be redeemed pro rata or
by lot or by any other method utilized by the Trustee; provided, that if, at the
time of redemption, the Securities are registered as a Global Security, the
Depositary shall determine the principal amount of such Securities held by each
Security Beneficial Owner to be redeemed in accordance with its procedures.]
[Notwithstanding the foregoing, the Company may not, prior to
, redeem any Securities of this series as contemplated by clause (2) of
the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of monies borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than % per annum.] [The sinking fund
for this series provides for the redemption on in each year beginning
with the year and ending with the year of [not less than]
$ ("mandatory sinking fund") and not more than $ aggregate
principal amount of Securities of this series. Securities of this series
acquired or redeemed by the Company otherwise than through mandatory sinking
fund payments may be credited against subsequent mandatory sinking fund payments
otherwise required to be made in the inverse order in which they become due.]
18
<PAGE> 25
In the event of redemption of this Security in part only, a
new Security or Securities of this series for the unredeemed portion hereof will
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 Securities
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 Securities of each series affected 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 Securities; provided,
however, that no such supplemental indenture shall (i) extend the Stated
Maturity of any Securities of any series, or reduce the principal amount
thereof, or reduce the Interest Rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption thereof, without the
consent of the Holder of each Security so affected, or (ii) reduce the aforesaid
percentage of Securities, the Holders of which are required to consent to any
such supplemental indenture, without the consent of the Holders of each Security
then outstanding and affected thereby. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount of the
Securities of any series at the time outstanding affected thereby, on behalf of
all of the Holders of the Securities of such series, to waive any past default
in the performance of any of the covenants contained in the Indenture, or
established pursuant to the Indenture with respect to such series, and its
consequences, except a default in the payment of the principal of or premium, if
any, or interest on any of the Securities of such series. Any such consent or
waiver by the registered Holder of this Security (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such Holder and upon all
future Holders and owners of this Security and of any Security 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 Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Security at the time and place and at the
rate and in the money herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, this Security is transferable by the registered
Holder hereof on the Security Register of the Company, upon surrender of this
Security for registration of transfer at the office or agency of the Trustee in
the City and State of New York 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 Securities of authorized denominations
and for the same aggregate principal amount and series will be issued to the
designated transferee or transferees. No service charge will be made
19
<PAGE> 26
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
Security, the Company, the Trustee, any paying agent and the Security Registrar
may deem and treat the registered holder hereof as the absolute owner hereof
(whether or not this Security shall be overdue and notwithstanding any notice of
ownership or writing hereon made by anyone other than the Security Registrar)
for the purpose of receiving payment of or on account of the principal hereof
and premium, if any, and interest due hereon and for all other purposes, and
neither the Company nor the Trustee nor any paying agent nor any Security
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 Security, 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 Securities of this series are issuable only in registered
form without coupons in denominations of $ and any integral multiple
thereof.] [This Global Security is exchangeable for Securities in definitive
form only under certain limited circumstances set forth in the Indenture.
Securities of this series so issued are issuable only in registered form without
coupons in denominations of $ and any integral multiple thereof.] As
provided in the Indenture and subject to certain limitations [herein and]
therein set forth, Securities of this series [so issued] are exchangeable for a
like aggregate principal amount of Securities of this series of a different
authorized denomination, as requested by the Holder surrendering the same.
All terms used in this Security that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
SECTION 2.4. Form of Trustee's Certificate of Authentication.
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series of Securities
described in the within-mentioned Indenture.
BANK ONE TRUST COMPANY, NA,
as Trustee
By:_______________________
Authorized Signatory
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ARTICLE III
THE SECURITIES
SECTION 3.1. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series,
(a) the designation or title of the Securities of the series
(which shall distinguish the Securities of the series from all Securities of any
other series);
(b) the limit, if any, upon the aggregate principal amount of
the Securities of such series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.4, 3.6, 3.7, 9.6 or 11.7 and except for any
Securities that, pursuant to Section 3.3, are deemed never to have been
authenticated and delivered hereunder) provided, however, that the authorized
aggregate principal amount of such series may be increased above such amount by
a Board Resolution to such effect;
(c) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest;
(d) the Stated Maturity or Maturities on which the principal
of the Securities of such series is payable or the method of determination
thereof, and any dates on which or circumstances under which, the Company shall
have the right to extend or shorten such Stated Maturity or Maturities;
(e) the Interest Rate at which the Securities of the series
shall bear interest or the Floating or Adjustable Rate Provision pursuant to
which such rates shall be determined, the date or dates from which any such
interest shall accrue, the Interest Payment Dates on which any such interest
shall be payable, the Regular Record Date for the interest payable on any
Interest Payment Date (if such Interest Payment Dates or Regular Record Dates
differ from those provided herein), the manner in which interest payments are
made (if such manner differs from that provided herein) and the right, pursuant
to Section XIII or otherwise, of the Company to defer an Interest Payment Date;
(f) the Place of Payment and the place or places where the
Securities of such series may be presented for registration of transfer or
exchange, any restrictions that may be applicable to any such transfer or
exchange in addition to or in lieu of those set forth herein, and the place or
places where notices and demands to or upon the Company in respect of the
Securities of such series may be made;
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(g) in addition to the redemption rights provided herein, the
period or periods within which (including the Redemption Option Date for the
series) and the price or prices at which any Securities of the series may be
redeemed, in whole or in part, at the option of the Company and if other than by
a Board Resolution, the manner in which any election by the Company to redeem
such Securities shall be evidenced;
(h) the currency or composite currency of and denominations in
which Securities of the series shall be issuable;
(i) any other Events of Default applicable with respect to the
Securities of the series in addition to those provided in Section 5.1(a) through
(g);
(j) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the maturity date;
(k) any other covenant or warranty included for the benefit of
Securities of the series in addition to (and not inconsistent with) those
included in this Indenture for the benefit of Securities of all series, or any
other covenant or warranty included for the benefit of Securities of the series
in lieu of any covenant or warranty included in this Indenture for the benefit
of Securities of all series, or any provision that any covenant or warranty
included in this Indenture for the benefit of Securities of all series shall not
be for the benefit of Securities of the series, or any combination of such
covenants, warranties or provisions;
(l) the obligation or the right, if any, of the Company to
redeem, repay or purchase the Securities of such series pursuant to any sinking
fund, amortization or analogous provisions, or at the option of a Holder
thereof, and the period or periods within which, the price or prices at which,
the currency or currencies (including currency unit or units) in which and the
other terms and conditions upon which Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;
(m) the terms of any right to convert or exchange the
Securities of the series into any other securities or property of the Company;
(n) the price at which the Securities will be issued and any
index or indices used to determine the amount of payments of principal of and
premium, if any, on the Securities of such series or the manner in which such
amounts will be determined;
(o) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities and,
in such case, the respective Depositaries for such Global Securities, the form
of any legend or legends that shall be borne by any such Global Security in
addition to or in lieu of that set forth in Sections 2.2 and 2.3 and any
circumstances in addition to or in lieu of those set forth in Section 3.6 in
which any such Global Security may be exchanged in whole or in part for
Securities registered, and any transfer of such Global Security in whole or in
part may be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;
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(p) the appointment of any Paying Agent or agents for the
Securities of such series;
(q) if other than as set forth herein, the relative degree, if
any, to which the Securities of the series shall be senior to or be subordinated
to other series of Securities in right of payment, whether such other series of
Securities are Outstanding or not;
(r) such Securities are to be issued to an ONB Trust, the form
or forms of the Trust Agreement and Guarantee relating thereto;
(s) the additions or changes, if any, to this Indenture with
respect to the Securities of such series as shall be necessary to permit or
facilitate the issuance of the Securities of such series;
(t) the terms of any indemnification of the ONB Trust for any
taxes owed (if the terms of such indemnification differ from the those provided
in Section 10.6;
(u) the terms of Legal Defeasance or Covenant Defeasance or
any other defeasance pursuant to which the Company would be discharged from its
obligations hereunder and under the Securities by depositing sufficient cash
government securities to pay the principal (and premium, if any), interest and
any other sums due on the Securities of the series (if the terms of such
defeasance differ from those provided in Sections 4.2 and 4.3); and
(v) the provisions of this Indenture, if any, that shall not
apply to the series; and
(w) any other terms of the series (which additional terms
shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to such Board Resolution and set forth, or determined in the manner
provided, in the Officers' Certificate referred to above or in any such
indenture supplemental hereto.
If any of the terms of the Securities of a series are
established by action taken pursuant to a Board Resolution, 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 setting forth the terms of the
Securities of such series.
SECTION 3.2. Denominations.
The Securities of each series shall be issuable in registered
form without coupons and in such denominations as shall be specified as
contemplated by Section 3.1.
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SECTION 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its President or a Senior Vice President, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 2.1 and 3.1, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive at the time of the initial delivery by
the Company of Securities of such series to the Trustee for authentication, and
(subject to Section 6.1) shall be fully protected in relying upon, an Opinion of
Counsel stating:
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.1, that such form has
been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 3.1, that such terms
have been established in conformity with the provisions of this Indenture; and
(c) that such Securities, 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 enforceable in accordance with their
terms, subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting the enforcement or creditors'
rights and to general equity principles.
If such form or terms have been so established, the Trustee
shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
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No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture.
SECTION 3.4. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon receipt of a Company Order the Trustee
shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the directors or officers executing such
Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
Securities of that series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like aggregate principal amount of definitive Securities of the same
series and of like tenor of authorized denominations. Until so exchanged, the
temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
SECTION 3.5 Global Securities.
(a) Each Global Security issued under this Indenture shall be
registered in the name of the Depositary designated by the Company for such
Global Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global Security or a
nominee thereof unless (i) such Depositary advises the Trustee in writing that
such Depositary is no longer willing or able to properly discharge its
responsibilities as Depositary with respect to such Global Security, and the
Company is unable to locate a qualified successor, (ii) the Company executes and
delivers to the Trustee a Company Order stating that the Company elects to
terminate the book-entry system through the Depositary, or (iii) there shall
have occurred and be continuing an Event of Default.
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(c) If any Global Security is to be exchanged for other
Securities or cancelled in whole, it shall be surrendered by or on behalf of the
Depositary or its nominee to the Securities Registrar for exchange or
cancellation as provided in this Article III. If any Global Security is to be
exchanged for other Securities or cancelled in part, or if another Security is
to be exchanged in whole or in part for a beneficial interest in any Global
Security, then either (i) such Global Security shall be so surrendered for
exchange or cancellation as provided in this Article III or (ii) the principal
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 principal amount of
such other Security 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 Trustee, in accordance with the Applicable
Procedures, shall instruct the Depositary or its authorized representative to
make a corresponding adjustment to its records. Upon any such surrender or
adjustment of a Global Security by the Depositary, accompanied by registration
instructions, the Trustee shall, subject to subsection (b) of this Section 3.5
and as otherwise provided in this Article III, authenticate and deliver any
Securities issuable in exchange for such Global Security (or any portion
thereof) in accordance with the instructions of the Depositary. The 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 Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global Security
or any portion thereof, whether pursuant to this Article III, Section 9.6 or
11.6 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name of a
Person other than the Depositary for such Global Security or a nominee thereof.
(e) Securities distributed to holders of Book-Entry Capital
Securities (as defined in the Trust Agreement of the applicable ONB Trust) upon
the termination of an ONB Trust shall be distributed in the form of one or more
Global Securities registered in the name of a Depositary or its nominee, and
deposited with the Securities Registrar, as custodian for such Depositary, or
with such Depositary, for credit by the Depositary to the respective accounts of
the beneficial owners of the Securities represented thereby (or such other
accounts as they may direct). Securities distributed to holders of Capital
Securities other than Book-Entry Capital Securities upon the termination of an
ONB Trust shall not be issued in the form of a Global Security or any other form
intended to facilitate book-entry trading in beneficial interests in such
Securities.
(f) The Depositary or its nominee, as the registered owner of
a Global Security, shall be the Holder of such Global Security for all purposes
under this Indenture and the Securities, and owners of beneficial interests in a
Global Security shall hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner's beneficial interest in a Global Security shall be
shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or its Agent Members.
Neither the Trustee nor the Securities Registrar shall have any liability in
respect of any transfers effected by the Depositary.
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(g) The rights of owners of beneficial interests in a Global
Security shall be exercised only through the Depositary and shall be limited to
those established by law and agreements between such owners and the Depositary
and/or its Agent Members.
SECTION 3.6. Registration, Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration and transfer of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Subject to Section 3.11, upon surrender for registration of
transfer of any Security of any series at the office or agency of the Company in
a Place of Payment for Securities of that series, the Company shall execute, and
the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of like tenor of the same
series, of any authorized denominations and of a like aggregate principal
amount.
Subject to Section 3.10, at the option of the Holder,
Securities of any series may be exchanged for other Securities of like tenor of
the same series, of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4, 9.6 or 11.7 not involving any transfer.
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The Company shall not be required (a) to issue, register the
transfer of or exchange any Security of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of such series selected for redemption under Section
11.3 and ending at the close of business on the day of such mailing, or (b) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
SECTION 3.7. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (b) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its written request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, 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.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.8. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, except that unless otherwise provided in the Securities of such
series, interest
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payable on the Stated Maturity of the principal of a Security shall be paid to
the Person to whom principal is paid. The initial payment of interest on any
Security of any series that is issued between a Regular Record Date and the
related Interest Payment Date shall be payable as provided in such Security or
in the Board Resolution pursuant to Section 3.1 with respect to the related
series of Securities.
Interest on any Security of any series which is payable, but
is not punctually paid or duly provided for (other than Deferred Interest)
(herein called "Defaulted Interest"), on any Interest Payment Date 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
may be paid by the Company, at its election in each case, as provided in clause
(a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) 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 Security of such
series 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 be not more than 15 days and not 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 Holder of Securities of such series
at his address as it appears in the Security 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 so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
written 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 in its sole discretion.
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Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
For the purposes of determining the Holders who are entitled to participate in
any distribution on the Securities in respect of which a Regular Record Date or
a Special Record Date is not otherwise provided for in this Indenture, or for
the purpose of any other action (unless provided for pursuant to Section 3.1),
the Company may from time to time fix a date, not more than 90 days prior to the
date of the payment of distribution or other action, as the case may be, as a
record date for the determination of the identity of the Holders of record for
such purposes.
SECTION 3.9. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name any Security is registered as the
owner of such Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Section 3.8) interest on such Security and for
all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 3.10. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall be promptly cancelled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly cancelled
by the Trustee. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. Unless otherwise directed by a Company Order,
delivery of which must be delivered in a timely manner to prevent such
destruction, all cancelled Securities held by the Trustee shall be destroyed by
it, and, upon request, the Trustee shall deliver a certificate of such
destruction to the Company.
SECTION 3.11. Interest.
(a) Each Security will bear interest at the rate established
for the series of Securities of which such Security is a part pursuant to
Section 3.1 (the "Interest Rate") from and including the original date of
issuance of such Security 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
(including Deferred Interest and Defaulted Interest) at the Interest Rate,
compounded each Interest Payment Period, payable (subject to the provisions of
Article Four) on each Interest Payment Date commencing on the date established
for the series of Securities of which such Security is a part pursuant to
Section 3.1, to the Person in whose name such Security or any Predecessor
Security is registered, at the close of business on the Regular Record Date for
such interest installment, which, in respect of any Securities of which the
Property Trustee of any ONB Trust is the Holder or a Global Security, shall be
the close of business on the Business Day next preceding that Interest
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Payment Date. Notwithstanding the foregoing sentence, if the Capital Securities
of an ONB Trust are no longer in book-entry only form or, except if the
Securities originally issued to such ONB Trust are held by the Property Trustee
of such ONB Trust, the Securities of any series are not represented by a Global
Security, the Company may select a Regular Record Date for such interest
installment on such series of Securities which shall be any date more than 14
days but less than 60 days before an Interest Payment Date.
(b) The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months and will include
the first day but exclude the last day of such period. Except as provided in the
following sentence, the amount of interest payable for any period shorter than a
full quarterly period for which interest is computed, will be computed on the
basis of the actual number of days elapsed in each 30-day month. In the event
that any date on which interest is payable on the Securities of any series is
not a Business Day, then payment of interest payable on such date will be made
on the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business Day
is in the next succeeding calendar year, 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.
SECTION 3.12. Shortening of Stated Maturity.
If specified as contemplated by Section 2.1 or Section 3.1
with respect to the Securities of a particular series, the Company shall have
the right to shorten the Stated Maturity of the principal of the Securities of
such series at any time to any date not earlier than the first date on which the
Company has the right to redeem the Securities of such series. In the event that
the Company elects to shorten the Stated Maturity of the Securities of such
series, it shall given written notice to the Trustee.
SECTION 3.13. Right of Set-Off.
With respect to the Securities of a series initially issued to
an ONB Trust, notwithstanding anything to the contrary herein, the Company shall
have the right to set off any payment it is otherwise required to make in
respect of any such Security to the extent the Company has theretofore made, or
is concurrently on the date of such payment making, a payment under the
Guarantee Agreement relating to such Security or to a holder of Capital
Securities pursuant to an action undertaken under Section 5.8 of this Indenture.
SECTION 3.14. CUSIP Number.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption and other similar or related materials as a convenience to
Holders; provided, that any such notice or other materials may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of redemption or other materials
and that reliance may be placed only on the other identification numbers printed
on the Securities, and any such redemption shall not be affected by any defect
in or omission of such numbers.
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ARTICLE IV
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of
further effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and
delivered (other than (A) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.7 and (B) Securities for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 10.3) have been delivered to the Trustee
for cancellation; or
(ii) all such Securities not theretofore
delivered to the Trustee for cancellation
(A) have become due and payable,
(B) will become due and payable at their
Stated Maturity within one year, or
(C) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of subclause (ii)(A), (B) or (C) above, has
deposited or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
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Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.7, the
Company's obligation to pay the expenses of any ONB Trust under Section 10.6
(except upon the application of subclauses (a)(i) or (a)(ii)(A) above), the
obligations of the Trustee to any Authenticating Agent under Section 6.14, and,
if money shall have been deposited with the Trustee pursuant to subclause (ii)
of clause (a) of this Section, the obligations of the Trustee under Section 4.2
and the last paragraph of Section 10.3 shall survive.
SECTION 4.2. Legal Defeasance.
Unless specifically provided otherwise in a Board Resolution,
Officers' Certificate or indenture supplemental hereto provided pursuant to
Section 3.1, in addition to discharge of this Indenture pursuant to Sections 4.1
and 4.3, in the case of any series of Securities with respect to which an amount
sufficient to pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal (and
premium, if any) and interest, as certified pursuant to Section 4.4(a) can be
determined at the time of making the deposit referred to in such in a Board
Resolution, Officers' Certificate or indenture supplemental hereto provided
pursuant to Section 4.4(a), the Company shall be deemed to have paid and
discharged the entire indebtedness on all the Securities of such a series as
provided in this Section on and after the date the conditions set forth in
Section 4.4 are satisfied, and the provisions of this Indenture with respect to
the Securities of such series shall no longer be in effect, except as to (a)
rights of registration of transfer and exchange of Securities of such series,
(b) substitution of mutilated, defaced, destroyed, lost or stolen Securities of
such series, (c) rights of Holders of Securities of such series to receive,
solely from the trust fund described in Section 4.4(a), payments of principal
thereof and interest, if any, thereon upon the original stated due dates
therefor (but not upon acceleration), and remaining rights of the Holders of
Securities of such series to receive mandatory sinking fund payments, if any,
(d) the rights, obligations, duties and immunities of the Trustee hereunder, (e)
this Section 4.2, (f) the rights of the Holders of Securities of such series as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them) and (g) the Company's obligation to pay the
expenses of any ONB Trust under Section 10.6 (hereinafter called "Legal
Defeasance"), and the Trustee at the cost and expense of the Company, shall
execute proper instruments acknowledging the same. If the Company exercises its
Legal Defeasance option, a series may not be accelerated because of an Event of
Default.
SECTION 4.3. Covenant Defeasance.
Unless specifically provided otherwise in a Board Resolution,
Officers' Certificate or indenture supplemental hereto provided pursuant to
Section 3.1, in the case of any series of Securities with respect to which an
amount sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, as certified pursuant to Section
4.4(a), can be determined at the time of making the deposit referred to in such
Section 4.4(a), (a) the Company shall be released from its obligations under any
covenants specified in or pursuant to this Indenture, except as to (i) rights of
registration of transfer and exchange of Securities of such series, (ii)
substitution of mutilated, defaced, destroyed, lost or stolen Securities of such
series, (iii) rights of Holders of Securities of such series to receive, solely
from the trust fund described
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in Section 4.4(a), payments of principal thereof and interest, if any, thereon
upon the original stated due dates therefor (but not upon acceleration), and
remaining rights of the Holders of Securities of such series to receive
mandatory sinking fund payments, if any, (iv) the rights, obligations, duties
and immunities of the Trustee hereunder, (v) the rights of the Holders of
Securities of such series as beneficiaries hereof with respect to the property
so deposited with the Trustee payable to all or any of them and (vi) the
Company's obligation to pay the expenses of any ONB Trust under Section 10.6;
and (b) the occurrence of any event specified in Section 5.1(d) (with respect to
any of the covenants specified in or pursuant to this Indenture) and 5.1(g)
shall be deemed not to be or result in an Event of Default, in each case with
respect to the Outstanding Securities of such series as provided in this Section
on and after the date the conditions set forth in Section 4.4 are satisfied
(hereinafter called "Covenant Defeasance"), and the Trustee, at the cost and
expense of the Company, shall execute proper instruments acknowledging the same.
For this purpose, such Covenant Defeasance means that the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant (to the extent so specified in the
case of Section 5.1(d)), whether directly or indirectly by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document, but
the remainder of this Indenture and the Securities of such series shall be
unaffected thereby. If the Company exercises its Covenant Defeasance option, a
series may not be accelerated by reference to any restrictive covenants as to
which the Covenant Defeasance option applicable to such series has been so
exercised.
SECTION 4.4. Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 4.2 or 4.3 to the Outstanding Securities:
(a) the Company has irrevocably deposited or caused to be
irrevocably deposited with the Trustee or another trustee as funds in trust,
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of Securities of such series (i) cash in an amount, or (ii) direct
obligations of the United States of America or an agency or instrumentality
thereof, backed by the full faith and credit of the United States of America or
an agency or instrumentality thereof that are not callable at the issuer's
option ("U.S. Government Obligations"), maturing as to principal and interest,
if any, at such times and in such amounts as will insure the availability of
cash, or (iii) a combination thereof, in each case 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 and discharge (A)
the principal of and interest, if any, on all Securities of such series on each
date that such principal or interest, if any, is due and payable, and (B) any
mandatory sinking fund payments on the dates on which such payments are due and
payable in accordance with the terms of this Indenture and the Securities of
such series;
(b) in the case of Legal Defeasance under Section 4.2, the
Company has delivered to the Trustee an Opinion of Counsel based on the fact
that (i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (ii), since the date hereof, there has been
a change in the applicable United States federal income tax law, in either case
to the effect that, and such opinion shall confirm that, the Holders of the
Securities
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of such series will not recognize income, gain or loss for United States federal
income tax purposes as a result of such deposit, Legal Defeasance and discharge
and will be subject to United States federal income tax on the same amount and
in the same manner and at the same times, as would have been the case if such
deposit, Legal Defeasance and discharge had not occurred;
(c) in the case of Covenant Defeasance under Section 4.3, the
Company has delivered to the Trustee an Opinion of Counsel to the effect that,
and such opinion shall confirm that, the Holders of the Securities of such
series will not recognize income, gain or loss for United States federal income
tax purposes as a result of such deposit and Covenant Defeasance and will be
subject to United States federal income tax on the same amount and in the same
manner and at the same times, as would have been the case if such deposit and
Covenant Defeasance had not occurred;
(d) such Legal Defeasance or Covenant Defeasance will not
result in a breach or violation of, or constitute a default under, any agreement
or instrument to which the Company is a party or by which it is bound; and
(e) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent contemplated by this provision have been complied with.
SECTION 4.5. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
10.3, all money and U.S. Government Obligations deposited with the Trustee
pursuant to Section 4.4 shall be held in trust, and such money and all money
from such U.S. Government Obligations shall be applied by it, in accordance with
the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal (and premium, if any) and interest for whose payment such money
and U.S. Government Obligations has been deposited with the Trustee.
SECTION 4.6. Indemnity for U.S. Government Obligations.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 4.4 or the principal or interest
received in respect of such obligations other than any such tax, fee or other
charge that by law is for the account of the Holders of Outstanding Securities.
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ARTICLE V
DEFAULTS AND REMEDIES
SECTION 5.1. Events of Default.
"Event of Default," wherever used herein with respect to
Securities of any series, 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) default in the payment of interest upon any Security of
that series when it becomes due and payable, and continuance of such default for
a period of 30 days; it being understood that the occurrence of an Interest
Payment Deferral Period in accordance with the terms of such Security will not
constitute such a default; or
(b) default in the payment of the principal of (or premium, if
any) any Security of that series when those payments are due and payable,
whether at its Stated Maturity or upon acceleration or otherwise; or
(c) default in the deposit of any sinking fund payment, when
and as due by the terms of a Securities Resolution establishing that series, and
continuance of such default for a period of 30 days; or
(d) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this Indenture
solely for the benefit of Securities of any series other than that series), and
continuance of such default or breach for a period of 90 days after there has
been given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Securities of that series, 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 entry by a court having jurisdiction in the premises
of (i) a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (ii) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 90 consecutive days; or
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(f) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any applicable Federal
or State law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Company or of any
substantial part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate action by the
Company in furtherance of any such action; or
(g) any other Event of Default provided with respect to
Securities of that series.
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount of all of
the Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders); provided, that
in the case of Securities of a series issued to an ONB Trust, if, upon an Event
of Default, the Trustee or the Holders of not less than 25% in principal amount
of the Outstanding Securities of such series fail to declare the principal of
all the Outstanding Securities of such series to be immediately due and payable,
the holders of at least 25% in principal amount of the related series of Capital
Securities issued by such ONB Trust then outstanding shall have the right to
make such declaration by a notice in writing to the Company and the Trustee; and
upon any such declaration such principal amount (or specified amount) and
accrued interest shall become immediately due and payable. If an Event of
Default specified in Section 5.1(e) or 5.1(f) with respect to Securities of any
series at the time Outstanding occurs, the principal amount of all the
Securities of such series (or, if the Securities as may be specified by the
terms of that series) shall automatically, and without any declaration or other
action on the part of the trustee or any Holder, become immediately due and
payable. Payment of principal and interest on such Securities shall remain
subordinated to the extent provided in Article XIII notwithstanding that such
amount shall become immediately due and payable as herein provided.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of Securities representing a
majority in principal amount of the Outstanding Securities of that series or, in
the case of a declaration of acceleration with respect to Securities of a series
issued to an ONB Trust, the Holders of a majority in principal amount of the
related series of Capital Securities issued by such ONB Trust then outstanding,
by written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if:
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(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all overdue interest on all Securities of that
series,
(ii) the principal of (and premium, if any) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and interest thereon at
the rate or rates prescribed therefor in such Securities,
(iii) all overdue sinking fund payments with respect
to Securities of that series and interest thereon at the rate
or rates prescribed therefor in such Securities,
(iv) to the extent that payment of such interest is
lawful, Additional Interest, and
(v) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel (including reasonable legal fees and expenses);
(b) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 5.13; and
(c) such rescission would not conflict with any judgment or
decree of any governmental or regulatory authority.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(a) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default continues
for a period of 30 days,
(b) default is made in the payment of the principal of (or
premium, if any) any Security at the Maturity thereof, or
(c) default is made in the deposit of any sinking fund
payment, when and as due by the terms of a Security of any series;
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and for any sinking
fund payment and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any), on any
overdue interest and on any overdue sinking fund payment, at the rate or rates
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prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due unpaid,
may, in its discretion, prosecute such proceeding to judgment or final decree
and may enforce the same against the Company or any other obligor upon such
Securities and collect the monies adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings or other available remedy
as the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 5.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of any of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal or interest or any sinking
fund payment) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal (and premium, if any), and interest and sinking fund payments owing
and unpaid in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.7.
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Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of an Holder in any such proceeding.
SECTION 5.5. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such 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 the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.6. Application of Money Collected.
Subject to Article XIV, any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such money on
account of principal (or premium, if any), interest or sinking fund payments,
upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.7; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any), and interest on, and sinking fund payments
with respect to, the Securities 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 Securities for principal
(and premium, it any), and interest and sinking fund payments, respectively.
SECTION 5.7. Limitation on Suits.
No Holder of any Security of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of that
series;
(b) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
indemnity, reasonably satisfactory to the Trustee, against the costs, expenses
(including reasonable legal fees and expenses) and liabilities to be incurred in
compliance with such request;
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(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of all Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium and
Interest; Direct Action by Holders of Capital Securities.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 3.8) interest on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder. In the
case of Securities issued to an ONB Trust, any registered holder of the Capital
Securities issued by such ONB Trust shall have the right, upon the occurrence of
an Event of Default described in Section 5.1(a) or 5.1(b), to institute a suit
directly against the Company for enforcement of payment to such holder of
principal of (and premium, if any) and interest on the Securities having a
principal amount equal to the aggregate principal amount of such Capital
Securities held by such holder.
SECTION 5.9. Restoration of Rights and Remedies.
If the Trustee, any Holder or any holder of Capital Securities
issued by an ONB Trust has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee, such
Holder or such holder of Capital Securities, then and in every such case,
subject to any determination in such proceeding, the Company, the Trustee, such
Holder and such holder of Capital Securities shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee, such Holder and such holder of Capital Securities shall
continue as though no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.6, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or
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remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee, any Holder of any
Securities or any holder of Capital Securities issued by an ONB Trust to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee, the Holders or the holders of the Capital Securities may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee, the Holders or the holders of the Capital Securities, as the case may
be.
SECTION 5.12. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities of any series 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, with respect
to the Securities of such series; provided, that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series and, in the case of any
Securities initially issued to an ONB Trust, the holders of a majority in
aggregate principal amount of the Capital Securities issued by such ONB Trust,
may on behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to the Securities of such series and its
consequences, except a default
(a) in the payment of the principal of (or premium, if any),
or interest on, any Security of such series, or in the payment of any sinking
fund installment with respect to the Securities, or
(b) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
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SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his 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, suffered 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 shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
ARTICLE VI
THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default;
(i) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon 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 which 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.
(b) In case an Event of Default has occurred and is
continuing, 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 their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) 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) this subsection shall not be construed to limit the
effect of subsection (a) of this Section;
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(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, 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 Holders of a majority in
principal amount of the Outstanding Securities of any series
determined as provided in Section 5.12, 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 Securities of such series; and
(iv) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that
repayment of such funds or indemnity, reasonably satisfactory
to it, against such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 6.2. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series, as their names and addresses appear in
the Security Register, notice of such default hereunder actually known to a
Responsible Officer of the Trustee, unless such default shall have been cured or
waived; provided, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on any Security of such series or
in the payment of any sinking fund installment with respect to Securities of
such series, the Trustee shall be protected in withholding such notice if and so
long as a Responsible Officer of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of Securities of
such series; and provided, further, that in the case of any default of the
character specified in Section 5.1(d) with respect to Securities of such series,
no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, 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 Securities of such series.
SECTION 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the 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
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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 or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, conclusively rely upon an Officers' Certificate;
(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, suffered or omitted
by it 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 or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity, reasonably satisfactory
to it, against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) 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, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney; and
(g) 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.
SECTION 6.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
or any Authenticating Agent shall not be accountable for the use or application
by the Company of the Securities or the proceeds thereof.
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SECTION 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder 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 money received by it hereunder
except as otherwise agreed with the Company.
SECTION 6.7. Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Trustee from time to time such reasonable
compensation for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents, nominees, custodians and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 5.1(e) or 5.1(f) occurs, the expenses and
the compensation for the services are intended to constitutes expenses of
administration under the Bankruptcy Reform Act of 1978 or any successor statute.
The provisions of this Section 6.7 shall survive the termination of
this Indenture and the resignation or removal of the Trustee.
SECTION 6.8. Disqualification; Conflicting Interests.
(a) The Trustee for the Securities of any series issued
hereunder shall be subject to the provisions of Section 310(b) of the Trust
Indenture Act. Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the second to last paragraph of said
Section 310(b).
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(b) The Trustee Agreement and the Guarantee Agreement with
respect to each ONB Trust shall be deemed to be specifically described in this
Indenture for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
SECTION 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
a corporation or banking association organized and doing business under the laws
of the United States of America, any State thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to supervision or
examination by Federal or State authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervision or examining authority, then for the purposes of this Section, 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. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving 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 the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) The Company may remove the Trustee with respect to all
Securities if at any time
(i) the Trustee shall fail to comply with Section
310(b) of the Trust Indenture Act,
(ii) the Trustee shall cease to be eligible under
Section 6.9 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
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(iii) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation.
If no Event of Default has occurred and is continuing, the
Company also may remove the Trustee without cause; provided, that the Company
has provided the Trustee with three months' advance notice of such removal.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company, by
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 6.11, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series as their names and
addresses appear in the Security Register. Each notice shall include the name of
the successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such 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
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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) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which:
(i) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest
in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such
successor Trustee relates,
(ii) if the retiring Trustee is not retiring with
respect to the Securities of all series for which it is the
Trustee hereunder, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series as to which the
retiring Trustee is not retiring shall continue to be vested
in the retiring Trustee, and
(iii) 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 trusts 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; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided
therein and each 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 with
respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request
of the Company or any successor Trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates.
(c) Upon request of any such 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) or (b) of this Section, as the case may be.
(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.
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(e) The Trustee shall not be liable for the acts or
omissions to act of any successor Trustee.
SECTION 6.12. 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 all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities 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 Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor of the Securities), the Trustee shall be subject
to the provisions of the Trust Indenture Act regarding collection of claims
against the Company (or any other such obligor).
SECTION 6.14. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
3.6, and Securities 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. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent 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 an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
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Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment by first-class mail, postage prepaid, to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve, as
their names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.7.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon an alternative certificate of authentication in the following form:
"This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
[ ],
---------------
As Trustee
By
-------------------------------
As Authenticating Agent
By
-------------------------------
Authorized Officer"
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ARTICLE VII
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually not more than 15 days after each Regular
Record Date a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Securities of such series as of the
preceding June 30 or December 31, or as of such Regular Record Date, as the case
may be, 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,
in each case to the extent such information is in the possession or control of
the Company and has not been received by the Trustee in its capacity as
Securities Registrar.
SECTION 7.2. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 7.1 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided in
the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding
Securities, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any agent of either of them shall be held accountable by reason
of the disclosure of information as to the names and addresses of the Holders
made pursuant to the Trust Indenture Act.
SECTION 7.3. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act, at the times and in the manner provided
pursuant thereto.
(b) Reports so required to be transmitted at stated intervals
of not more than 12 months shall be transmitted no later than July 31 in each
calendar year, commencing with July 31, 2000 after the first issuance of
Securities under this Indenture.
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(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each securities exchange
upon which any Securities are listed and also with the Commission. The Company
will notify the Trustee when any Securities are listed on any securities
echoing.
SECTION 7.4. Reports by Company.
The Company shall file with the Trustee and with the
Commission, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided in the Trust Indenture
Act; provided, that any such information, documents or reports required to be
filed with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act shall be filed with the Trustee within 15 days after the same is
required to be filed with the Commission. Notwithstanding that the company may
not be required to remain subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act, the Company shall continue to file with the
commission and provide the Trustee with the annual reports and the information,
documents and other reports which are specified in Sections 13 and 15(d) of the
Exchange Act. The Company also shall comply with the other provisions of Trust
Indenture Act Section 314(a).
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, and no Person shall consolidate with or merge into
the Company or convey, transfer or lease its properties and assets substantially
as an entirety to the Company, unless:
(a) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an
entirety, shall be a corporation organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest on all
the Securities and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(b) all required approvals of any regulatory body having
jurisdiction over the transaction shall have been obtained by the Company;
(c) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be continuing; and
(d) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease
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and such supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied
with.
SECTION 8.2. Successor Company Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 8.1, the successor corporation formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture and the Securities.
Such successor Person may cause to be executed, and may issue
either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder that theretofore shall not have been signed by the
Company and delivered to the Trustee; and, upon the order of such successor
Person instead of the Company and subject to all terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities that previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication
pursuant to such provisions and any Securities that such successor Person
thereafter shall cause to be executed and delivered to the Trustee on its behalf
for the purpose pursuant to such provisions. All the Securities so issued shall
in all respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture.
In case of any such consolidation, merger, sale, conveyance or
lease, such changes in phraseology and form may be made in the Securities
thereafter to be issued as may be appropriate.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of the Company
contained herein and in the Securities, pursuant to Article VIII; or
(b) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series
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of Securities, stating that such covenants are expressly being included solely
for the benefit of one or more specified series) or to surrender any right or
power herein conferred upon the Company; or
(c) to add any additional Events of Default for the benefit
of the Holders of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly being included
solely for the benefit of one or more specified series); or
(d) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become effective
only when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision; or
(e) to secure the Securities; or
(f) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 3.1; or
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.11(b); or
(h) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions arising under
this Indenture, provided such action shall not adversely affect the interests of
the Holders of Securities of any series or, in the case of the Securities of a
series issued to an ONB Trust and for so long as any of the corresponding series
of Capital Securities issued by such ONB Trust are outstanding, the holders of
such Capital Securities, in any material respect; or
(i) to comply with the requirements of the Commission in
order to effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
SECTION 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, that, in
the case of a series issued to an ONB Trust, so long as any of the related
Capital Securities of such ONB Trust remains outstanding, no supplemental
indenture shall be entered into that adversely affects the holders of such
Capital Securities in any material respect, and no termination of this Indenture
shall occur without the
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prior consent of the holders of not less than a majority in aggregate
liquidation amount of such Capital Securities then outstanding unless and until
the principal (and premium, if any) of the Securities of such series and all
accrued and unpaid interest thereon have been paid in full; and provided
further, that, in the case a series of Securities issued to a ONB Trust, so long
as any of the related Capital Securities of such ONB Trust remain outstanding,
no supplemental indenture shall be entered into that affects the right of
holders of Capital Securities described under Section 5.8 without the prior
written consent of the holders of each such Capital Security then outstanding
unless and until the principal (and premium, if any) of the Securities of such
series and all accrued and unpaid interest thereon have been paid in full.
However, without the consent of each Holder of an Outstanding Security affected
thereby, no such supplemental indenture shall
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or change the currency
in which any such amounts are payable, or reduce the principal amount thereof or
the rate of interest thereon (including any change in the Floating or Adjustable
Rate Provision pursuant to which such rate is determined that would reduce that
rate for any period) or any premium payable upon the redemption thereof, or
change any Place of Payment where, or the coin or currency in which, any
Security or any premium or the interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date), or modify the provisions of this Indenture with respect to the
subordination of the Securities in a manner adverse to the Holders,
(b) modify this Indenture in any way that materially
adversely affects the right of Holders to convert or exchange any Security,
(c) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(d) modify any of the provisions of this Section or Section
5.13, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Security affected thereby;
provided, further, that if the Securities of such series are held by an ONB
Trust or a trustee of such trust, such supplemental indenture shall not be
effective until the holders of a majority in principal amount of Capital
Securities of such ONB Trust shall have consented to such supplemental
indenture; provided, further, that if the consent of the Holder of each
Outstanding Securities is required, such supplemental indenture shall not be
effective until each holder of the Capital Securities of the applicable ONB
Trust shall have consented to such supplemental indenture.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities or any
corresponding series of Capital Securities of an ONB
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Trust that holds the Securities of any series, or which modifies the rights of
the Holders of Securities of such series or the holders of such corresponding
series of Capital Securities with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or holders of Capital Securities of any other
such corresponding series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.3. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 6.1) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby to the extent provided therein.
SECTION 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.6. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
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ARTICLE X
COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities of that series in accordance
with the terms of the Securities of such series and this Indenture, and will
duly comply with all other terms, agreements and conditions contained in, or
made in the Indenture for the benefit of, the Securities of such series.
SECTION 10.2. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. 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, surrenders, 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, surrenders, notices and
demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 10.3. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Securities of
that series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, prior to each due date of the principal of
(and premium, if any) or interest on any Securities of that series, deposit with
a Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
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The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest on the Securities of that
series;
(c) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent; and
(d) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts 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.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Security of any series and remaining
unclaimed for three years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
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SECTION 10.4. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance, observance and
fulfillment of any of the terms, provisions and conditions of this Indenture,
and if the Company shall be in default, specifying all such defaults and the
nature and status thereof of which they may have knowledge. For the purpose of
this Section 10.4, compliance shall be determined without regard to any grace
period or requirement of notice provided pursuant to the terms of this
Indenture.
SECTION 10.5. Covenants as to ONB Trusts.
(a) If at any time (i) there shall have occurred any event (A)
of which the Company has actual knowledge that with the giving of notice or the
lapse of time, or both, would constitute an Event of Default with respect to the
Securities of such series, and (B) which the Company shall not have taken
reasonable steps to cure, (ii) if the Securities of such series are held by an
ONB Trust, the Company shall be in default with respect to its payment of any
obligations under the Guarantee Agreement relating to the Capital Securities
issued by such ONB Trust, or (iii) the Company shall have given notice of its
election to begin a Interest Payment Deferral Period with respect to the
Securities of such series as provided herein and shall not have rescinded such
notice, or such Interest Payment Deferral Period, or any extension thereof,
shall be continuing, the Company covenants and agrees with each Holder of
Securities of each series that it shall not:
(1) declare or pay any dividends or distributions on,
or redeem, purchase, acquire or make a liquidation payment
with respect to, any shares of the Company's capital stock;
(2) make any payment of principal of or interest or
premium, if any, on or repay, repurchase or redeem any debt
securities of the Company that rank pari passu in all respects
with or junior in interest to the Securities of such series;
or
(3) make any payment on any guarantee with respect to
any debt securities of the Company that rank pari passu in all
respect with or junior in interest to the Securities of such
series.
The restrictions set forth in subsections (1) - (3) above will not apply to (a)
repurchases, redemptions or acquisitions of shares of capital stock of the
Company in connection with the issuance of capital stock of the Company under
any employment contract or benefit plan for the directors, officers or employees
of the Company, (b) dividends or distributions payable in the capital stock of
the Company, (c) any payment obligations under any guarantee relating to the
Capital Securities of an ONB Trust and (d) obligations of the Company under any
dividend reinvestment plan or stock purchase plan.
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(b) For so long as any Capital Securities of an ONB Trust
remain outstanding, the Company also covenants that it will (i) maintain 100%
direct or indirect ownership of the Common Securities of such ONB Trust;
provided, however, that any permitted successor of the Company hereunder may
succeed to the Company's ownership of such Common Securities, (ii) not
voluntarily dissolve, wind up or liquidate such ONB Trust, except in connection
with a distribution of Securities upon a Special Event, or in connection with
certain mergers, consolidations or amalgamations, (iii) use its reasonable
efforts to cause such ONB Trust to (A) remain a business trust, except in
connection with a distribution of Securities to the holders of Capital
Securities as provided in the Trust Agreement of such ONB Trust, the redemption
of all of the Capital Securities and in connection with certain mergers,
consolidations or amalgamations permitted by the Trust Agreement of such ONB
Trust, and (B) otherwise continue to be classified as a grantor trust for United
States federal income tax purposes and (iv) not knowingly take any action that
would cause such ONB Trust to not be classified as a grantor trust or not to be
taxable as a corporation for United States federal income tax purposes.
SECTION 10.6. Payment of Expenses and Additional Amounts.
(a) In connection with the offering, sale and issuance of
each series of Securities to the Property Trustee of an ONB Trust and in
connection with the sale of Capital Securities by such ONB Trust, the Company,
in its capacity as borrower with respect to such Securities, shall:
(i) pay all costs and expenses relating to the
offering, sale and issuance of such Securities, including
commissions to the underwriters payable pursuant to the
applicable Underwriting Agreement and compensation of the
Trustee under this Indenture in accordance with the provisions
of Section 6.7;
(ii) pay all costs and expenses of such ONB Trust
(including, but not limited to, costs and expenses relating to
the organization of the trust, the offering, sale and issuance
of the Capital Securities of such ONB Trust (including
commissions to the underwriters in connection therewith), the
fees and expenses of the Property Trustee, the Issuer Trustees
and the Delaware Trustee of such ONB Trust, the costs and
expenses relating to the operation, maintenance and
termination of such ONB Trust and the enforcement by such
Property Trustee of the rights of the holders of the Capital
Securities of such ONB Trust, including without limitation,
costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and
computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and
telephone and other telecommunications expenses and costs and
expenses incurred in connection with the acquisition,
financing, and disposition of assets of such ONB Trust);
(iii) be primarily liable for any indemnification
obligations arising with respect to the Trust Agreement of
such ONB Trust; and
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(iv) pay any and all taxes (other than United States
withholding taxes in respect of amounts paid on the Securities held by
such ONB Trust) and all liabilities, costs and expenses with respect to
such taxes of such ONB Trust.
(b) Upon termination of this Indenture or any series of
Securities or the removal or resignation of the Trustee pursuant to Section
6.10, the Company shall pay to the Trustee all amounts accrued and owing to the
Trustee to the date of such termination, removal or resignation. Upon
termination of the Trust Agreement of any ONB Trust or the removal or
resignation of the Delaware Trustee or the Property Trustee, as the case may be,
pursuant to Section 5.6 of the Trust Agreement of such ONB Trust, the Company
shall pay to such Delaware Trustee or such Property Trustee, as the case may be,
all amounts accrued and owing to such Delaware Trustee or such Property Trustee,
as the case may be, to the date of such termination, removal or resignation.
(c) If, at any time an ONB Trust 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 the Company will pay such additional amounts on the Securities
of such series as shall be required so that the net amounts received and
retained by such ONB Trust after paying such taxes, duties, assessments or other
governmental charges will be equal to the amounts such ONB Trust would have
received had no such taxes, duties, assessments or other government charges been
imposed (the "Additional Amounts"). Whenever in this Indenture or the Securities
there is a reference in any context to the payment of principal of or interest
on the Securities, such mention shall be deemed to include mention of the
payments of the Additional Amounts provided for in this paragraph to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof pursuant to the provisions of this paragraph and express mention
of the payment of Additional Amounts (if applicable) in any provisions hereof
shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made: provided, however, that the
deferral of the payment of interest pursuant to Article XIII or the Securities
shall not defer the payment of any Additional Amounts that may be due and
payable.
SECTION 10.7. Listing on an Exchange.
If Securities of any series are to be issued as a Global
Security in connection with the distribution of such Securities to the holders
of the Capital Securities of an ONB Trust upon a Termination Event with respect
to such ONB Trust, the Company will use its best efforts to list such series of
Securities on the New York Stock Exchange or on such other securities exchange
as the Capital Securities of such ONB Trust are then listed.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1. Applicability of Article.
Securities of each series are redeemable before their
respective Stated Maturities in accordance with their respective terms and
(except as otherwise specified as contemplated by Section 3.1 for Securities of
any series) in accordance with this Article.
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SECTION 11.2. Election to Redeem; Notice to Trustee.
(a) Subject to the provisions of subsection (b) of this
Section 11.2 and to the other provisions of this Article XI, except as otherwise
may be specified in this Indenture or, with respect to any series of Securities,
as otherwise specified as contemplated by Section 3.1 for the Securities of such
series, the Company shall have the right to redeem any series of Securities, in
whole or in part, from time to time, on or after the Redemption Option Date for
such series at the Redemption Price. The election of the Company to redeem any
Securities redeemable at the election of the Company shall be evidenced by a
Board Resolution. In case of any redemption at the election of the Company of
less than all the Securities of any series, the Company shall, at least 30 days,
but not more than 60 days, prior to the Redemption Date fixed by the Company,
notify the Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
(b) If a partial redemption of any series of Securities would
result in the delisting of the Capital Securities of the ONB Trust that
purchased such Securities from any national securities exchange or other
organization on which the Capital Securities of such ONB Trust are then listed,
the Company shall not be permitted to effect such partial redemption and may
only redeem such series of Securities in whole.
SECTION 11.3. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series; provided,
that if at the time of redemption such Securities are registered as a Global
Security, the Depositary shall determine, in accordance with its procedures, the
principal amount of such Securities held by each Security Beneficial Owner to be
redeemed.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
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SECTION 11.4. Notice of Redemption.
Notice of redemption shall be given 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 Securities to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities of such series
to be redeemed,
(d) that on the Redemption Date, the Redemption Price
will become due and payable upon each such Security to be redeemed and that
interest thereon will cease to accrue on and after said date,
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price,
(f) that the redemption is for a sinking fund, if such is
the case, and
(g) such other provisions as may be required in respect
of the terms of a particular series of Securities.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company and shall
be irrevocable. The notice if mailed in the manner provided above shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Security designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
SECTION 11.5. Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
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SECTION 11.6. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon presentation and
surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest to the Redemption Date; provided, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.8.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
The Redemption Price shall be paid prior to 12:00 noon, New
York City 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 City time,
on the date such Redemption Price is to be paid.
SECTION 11.7. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment for Securities of that series (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series, of like tenor and of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
SECTION 11.8. Special Event Redemption.
If a Special Event with respect to an ONB Trust has occurred
and is continuing, the Company may redeem the corresponding Securities held by
such ONB Trust, in whole but not in part, at any time within 90 days thereafter.
If the applicable ONB Trust is the holder of all outstanding corresponding
Securities, the proceeds of the redemption will be used by the ONB Trust to
redeem the corresponding Capital Securities and the Common Securities, at the
liquidation amount per capital security specified in the Trust Agreement of such
ONB Trust plus unpaid distributions to the date of redemption; provided,
however, that if the Company can eliminate, within a 90 day period, the Special
Event by taking some 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 applicable ONB Trust or the holders of the Capital Securities
or the Common Securities, the Company must pursue that action instead of
redemption. The Company will have no right to redeem the Securities while the
applicable ONB Trust or the Property
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Trustee is pursuing any similar action based on its obligations under the Trust
Agreement of such ONB Trust.
ARTICLE XII
SINKING FUNDS
SECTION 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 3.1 for the Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 12.2. Each sinking fund payment shall be
applied to the redemption of Securities as provided for by the terms of
Securities of such series.
SECTION 12.2. Satisfaction of Sinking Fund Payments with Securities.
Unless the form or terms of any series of Securities shall
provide otherwise, the Company (a) may deliver to the Trustee Outstanding
Securities of a series (other than any previously called for redemption) [and
(b) may apply as a credit Securities of a series which have been redeemed either
at the election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Securities, in each case] in satisfaction of all or any part
of any sinking fund payment with respect to any Securities of such series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such Securities; provided, that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
SECTION 12.3. Redemption of Securities for Sinking Fund.
Not less than [90] days prior to each sinking fund payment
date for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 12.2 and will also deliver to the Trustee any
Securities to be so delivered. Such Officers' Certificate shall be irrevocable
and upon its delivery the Company shall be obligated to make the cash payment or
payments therein referred to, if any, on or before the succeeding sinking fund
payment date. In the case of the failure of the Company to deliver such
Officers' Certificate (or, as required by this Indenture and the Securities) by
the due date
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therefor, the sinking fund payment due on the succeeding sinking fund payment
date for such series shall be paid entirely in cash and shall be sufficient to
redeem the principal amount of the Securities of such series subject to a
mandatory sinking fund payment without the right to deliver or credit securities
as provided in Section 12.2 and without the right to make the optional sinking
fund payment with respect to such series at such time.
Any sinking fund payment or payments (mandatory or optional)
made in cash plus any unused balance of any preceding sinking fund payments made
with respect to the Securities of any particular series shall be applied by the
Trustee (or by the Company if the Company is acting as its own Paying Agent) on
the sinking fund payment date on which such payment is made (or, if such payment
is made before a sinking fund payment date, on the sinking fund payment date
immediately following the date of such payment) to the redemption of Securities
of such series at the Redemption Price specified in such Securities with respect
to the sinking fund. Any sinking fund moneys not so applied or allocated by the
Trustee (or, if the Company is acting as its own Paying Agent, segregated and
held in trust by the Company as provided in Section 10.3) for such series and
together with such payment (or such amount so segregated) shall be applied in
accordance with the provisions of this Section 12.3. Any and all sinking fund
moneys with respect to the Securities of any particular series held by the
Trustee (or, if the Company is acting as its own Paying Agent, segregated and
held in trust as provided in Section 10.3) on the last sinking fund payment date
with respect to Securities of such series and not held for the payment or
redemption of particular Securities of such series shall be applied by the
Trustee (or by the Company if the Company is acting as its own Paying Agent),
together with other moneys, if necessary, to be deposited (or segregated)
sufficient for the purpose, to the payment of the principal of the Securities of
such series at Maturity. The Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 11.3 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 11.4. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Section 11.6. On or before each sinking fund
payment date, the Company shall pay to the Trustee (or, if the Company is acting
as its own Paying Agent, the Company shall segregate and hold in trust as
provided in Section 10.3) in cash a sum in the currency in which Securities of
such series are payable (except as provided pursuant to Section 3. 1) equal to
the principal (and premium, if any) and any interest accrued to the Redemption
Date for Securities or portions thereof to be redeemed on such sinking fund
payment date pursuant to this Section 12.3.
Neither the Trustee nor the Company shall redeem any
Securities of a series with sinking fund moneys or mail any notice of redemption
of Securities of such series by operation of the sinking fund for such series
during the continuance of a default in payment of interest, if any, on any
Securities of such series or of any Event of Default (other than an Event of
Default occurring as a consequence of this paragraph) with respect to the
Securities of such series, except that if the notice of redemption shall have
been provided in accordance with the provisions hereof, the Trustee (or the
Company, if the Company is then acting as its own Paying Agent) shall redeem
such Securities if cash sufficient for that purpose shall be deposited with the
Trustee (or segregated by the Company) for that purpose in accordance with the
terms of this Article XII. Except as aforesaid, any moneys in the sinking fund
for such series at the time when any such default or Event of Default shall
occur and any moneys thereafter paid into such sinking fund shall, during the
continuance of such default or Event of Default, be held as security
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for the payment of the Securities and coupons, if any, of such series; provided,
however, that in case such default or Event of Default shall have been cured or
waived herein, such moneys shall thereafter be applied on the next sinking fund
payment date for the Securities of such series on which such moneys may be
applied pursuant to the provisions of this Section 12.3.
ARTICLE XIII
DEFERRAL OF INTEREST PAYMENT DATE
SECTION 13.1. Deferral of Interest Payment Date.
The Company shall have the right, at any time and from time to
time during the term of the Securities of any series, to defer payments of
interest by extending the interest payment period of all Securities of such
series for a period of a number of consecutive quarters specified in the Trust
Agreement of the applicable ONB Trust (the "Interest Payment Deferral Period"),
during which Interest Payment Deferral Period no interest shall be due and
payable on Securities of such series; provided, that no Interest Payment
Deferral Period may extend beyond the Maturity of such Securities. To the extent
permitted by applicable law, interest, the payment of which has been deferred
because of the deferral of the interest payment date pursuant to this Section
13.1, will bear Additional Interest thereon for each Interest Payment Period of
the Interest Payment Deferral Period. At the end of any Interest Payment
Deferral Period with respect to any series of Securities, the Company shall pay
all interest accrued and unpaid on such Securities, including any Additional
Interest (together, the "Deferred Interest") that shall be payable to the
Holders of Securities of such Series in whose names such Securities are
registered in the Security Register on the first record date after the end of
such Interest Payment Deferral Period. Before the termination of any Interest
Payment Deferral Period, the Company may further extend such period up to the
limit provided in the Trust Agreement of the applicable ONB Trust. Upon the
termination of any Interest Payment Deferral Period with respect to any series
of Securities and upon the payment of all Deferred Interest then due, the
Company may commence a new Interest Payment Deferral Period with respect to such
series of Securities, subject to the foregoing requirements. No interest on a
series of Securities shall be due and payable during an Interest Payment
Deferral Period with respect thereto, except at the end thereof; provided, that
the Company may prepay at any time all or any portion of the interest accrued
during any Interest Payment Deferral Period.
SECTION 13.2. Notice of Deferral.
(a) If the Property Trustee of an ONB Trust is the only Holder
of Securities of a series at the time the Company defers an Interest Payment
date with respect thereto, the Company shall give written notice to the Issuer
Trustees of such ONB Trust and to the Trustee of such Interest Payment Deferral
Period one Business Day before the earlier of (i) the next succeeding date on
which Distributions on the Capital Securities issued by such ONB Trust would be
payable, if not for such Interest Payment Deferral Period, or (ii) the date such
ONB Trust is required to give notice of the record date, or the date such
Distributions are payable, to the New York Stock Exchange or other applicable
self-regulatory organization or to holders of the Capital Securities issued by
such ONB Trust, but in any event at least one Business Day before such record
date.
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(b) If the Property Trustee of an ONB Trust is not the only
Holder of Securities of a series at the time the Company selects an Interest
Payment Deferral Period with respect thereto, the Company shall give written
notice to the Holders of Securities of such series and the Trustee of its
selection of such Interest Payment Deferral Period 10 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 New York Stock Exchange or other applicable
self-regulatory organization or to Holders of Securities of such series.
(c) The Interest Payment Period in which any notice is given
pursuant to paragraphs (a) or (b) of this Section 13.2 shall be counted as one
of the consecutive Interest Payment Periods permitted in the maximum Interest
Payment Deferral Period with respect to any series of Securities permitted under
Section 1.3.
SECTION 13.3. Limitation of Transactions During Interest Payment Deferral
Period.
If with respect to any series of Securities the Company shall
exercise its right to defer payments of interest thereon as provided in Section
13.1, the Company shall not (a) declare or pay any dividend in, make any
distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock, (b) the Company
shall not make any payment of interest on, principal of or premium, if any, on,
or repay, repurchase or redeem, any debt securities issued by the Company which
rank pari passu with or junior to the Securities of such series (including the
Securities of any other series) or (c) make any payment on any guarantee with
respect to any debt securities of the Company that rank pari passu in all
respect with or junior interest to the Securities of such series, except in the
limited situations described in Section 10.5.
ARTICLE XIV
SUBORDINATION OF SECURITIES
SECTION 14.1. Agreement to Subordinate.
The Company covenants and agrees, and each Holder of
Securities issued hereunder by such Holder's acceptance thereof likewise
covenants and agrees, that all Securities shall be issued subject to the
provisions of this Article XIV; and each Holder of a Security, 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, premium, if
any, and interest on all Securities 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 of the Company, whether
outstanding at the date of this Indenture or thereafter incurred.
No provision of this Article XIV shall prevent the occurrence
of any default or Event of Default hereunder.
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SECTION 14.2. Default on Senior Debt.
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 Debt of the Company, as the case may be, or in the event that the
maturity of any Senior Debt of the Company, as the case may be, 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 premium, if any, or interest on, the Securities or to acquire any of the
Securities (except sinking fund payments made in Securities acquired by the
Company prior to such default).
In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee, by any Holder or by any Paying Agent (or, if
the Company is acting as its own Paying Agent, money for any such payment is
segregated and held in trust) when such payment is prohibited by the preceding
paragraph of this Section 14.2, before all Senior Debt of the Company is paid in
full, or provision is made for such payment in money in accordance with its
terms, such payment shall be held in trust for the benefit of, and shall be paid
over or delivered to, the holders of Senior Debt of the Company or their
respective representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Debt may have been issued, as their
respective interests may appear, ratably according to the aggregate amount
remaining unpaid on account of the principal, premium, interest or any other
payment due on the Senior Debt held or represented by each, for application to
the payment of all Senior Debt of the Company, as the case may be, remaining
unpaid to the extent necessary to pay such Senior Debt 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 Debt, but only
to the extent that the holders of the Senior Debt (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 Debt and only the
amounts specified in such notice to the Trustee shall be paid to the holders of
Senior Debt.
SECTION 14.3. Liquidation; Termination; Bankruptcy.
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 termination, winding-up, liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due upon all Senior Debt 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 (and premium, if any) or interest on the Securities; and upon
any such termination, winding-up, 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 the Securities
or the Trustee would be entitled to receive, except for the provisions of this
Article XIV, 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 Securities or by the Trustee under this
Indenture if received by them or it, directly to the holders of Senior Debt of
the Company (pro rata to such holders on the basis of the respective amounts of
Senior Debt held by such holders, as calculated by the Company) or their
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representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Debt may have
been issued, as their respective interests may appear, to the extent necessary
to pay such Senior Debt 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
Debt, before any payment or distribution is made to the Holders of Securities or
to the Trustee.
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, by any Holder or by any Paying Agent (or, if the Company is acting
as its own Paying Agent, money for any such payment is segregated and held in
trust) before all Senior Debt 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 Debt or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Debt may have been issued, as their respective
interests may appear, ratably according to the aggregate amount remaining unpaid
on account of the principal, premium, interest or any other payment due on the
Senior Debt held or represented by each, as calculated by the Company, for
application to the payment of all Senior Debt of the Company, as the case may
be, remaining unpaid to the extent necessary to pay such Senior Debt 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
Debt.
For purposes of this Article XIV, 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 XIV with respect
to the Securities to the payment of all Senior Debt of the Company, as the case
may be, that may at the time be outstanding, provided that (i) such Senior Debt
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 Debt 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
termination 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 VIII shall not be deemed a
termination, winding-up, liquidation or reorganization for the purposes of this
Section 14.3 if such other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in Article
VIII. Nothing in Section 14.2 or in this Section 14.3 shall apply to claims of,
or payments to, the Trustee under or pursuant to Section 6.7.
SECTION 14.4. Subrogation.
Subject to the payment in full of all Senior Debt of the
Company, the rights of the Holders of the Securities shall be subrogated to the
rights of the holders of such indebtedness to receive payments or distributions
of cash, property or securities of the Company, as the case may be, applicable
to such Senior Debt until the principal of (and premium, if any) and interest on
the
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Securities shall be paid in full; and, for the purposes of such subrogation,
no payments or distributions to the holders of such Senior Debt of any cash,
property or securities to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article XIV, and no payment
over pursuant to the provisions of this Article XIV to or for the benefit of the
holders of such Senior Debt by Holders of the Securities or the Trustee, shall,
as between the Company, its creditors other than Holders of Senior Debt of the
Company, and the holders of the Securities, be deemed to be a payment by the
Company to or on account of such Senior Debt. It is understood that the
provisions of this Article XIV are and are intended solely for the purposes of
defining the relative rights of the Holders of the Securities, on the one hand,
and the holders of such Senior Debt on the other hand.
Nothing contained in this Article XIV or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior Debt of the Company, and
the Holders of the Securities, the obligation of the Company, which is absolute
and unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any) and interest on the Securities 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 the Securities and creditors
of the Company, as the case may be, other than the holders of Senior Debt of the
Company, as the case may be, nor shall anything herein or therein prevent the
Trustee or the Holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under the Indenture, subject to the
rights, if any, under this Article XIV of the holders of such Senior Debt in
respect of cash, property or securities of the Company, as the case may be,
received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article XIV, the Trustee, subject to the provisions of
Section 6.1, and the Holders of the Securities shall be entitled to conclusively
rely upon any order or decree made by any court of competent jurisdiction in
which such termination, 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 Securities, for the purposes
of ascertaining the Persons entitled to participate in such distribution, the
holders of Senior Debt 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
XIV.
SECTION 14.5. Trustee to Effectuate Subordination.
Each Holder of Securities 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 XIV and appoints the Trustee such Holder's attorney-in-fact for any
and all such purposes.
SECTION 14.6. Notice by the Company.
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 the
Securities pursuant to the provisions of this Article
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XIV. Notwithstanding the provisions of this Article XIV 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 the Securities pursuant to the provisions of
this Article XIV, 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 Debt or their representative or representatives 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 14.6 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 limitation, the payment of
the principal of (or premium, if any) or interest on any Security), 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.
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 Debt of the Company, as the
case may be (or a trustee on behalf of such holder), to establish that such
notice has been given by a holder of such Senior Debt 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 Debt to participate in any payment or distribution
pursuant to this Article XIV, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of such
Senior Debt 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 XIV, 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.
SECTION 14.7. Rights of the Trustee; Holders of Senior Debt.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article XIV in respect of any Senior Debt at
any time held by it, to the same extent as any other holder of Senior Debt, and
nothing in this Indenture shall deprive the Trustee of any of its rights as such
holder.
With respect to the holders of Senior Debt 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 XIV, and no implied
covenants or obligations with respect to the holders of such Senior Debt 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 Debt and, subject to the
provisions of Section 6.1, the Trustee shall not be liable to any holder of such
Senior Debt if it shall pay over or deliver to Holders of Securities, the
Company or any other Person money or assets to which any holder of such Senior
Debt shall be entitled by virtue of this Article XIV or otherwise.
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SECTION 14.8. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior Debt 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, as the case may be, or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by the Company, as the case may be,
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.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt 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
the Securities, without incurring responsibility to the Holders of the
Securities and without impairing or releasing the subordination provided in this
Article XIV or the obligations hereunder of the Holders of the Securities to the
holders of such Senior Debt, 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 Debt, or otherwise amend or supplement in any manner such
Senior Debt or any instrument evidencing the same or any agreement under which
such Senior Debt is outstanding; (ii) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing such Senior Debt;
(iii) release any Person liable in any manner for the collection of such Senior
Debt; and (iv) exercise or refrain from exercising any rights against the
Company, as the case may be, and any other Person.
ARTICLE XV
MISCELLANEOUS
SECTION 15.1. Acknowledgement of Rights.
The Company acknowledges that, with respect to any Securities
held by an ONB Trust or a trustee of such Trust, if the Property Trustee of such
ONB Trust fails to enforce its rights under this Indenture as the Holder of the
series of Securities held as the assets of such ONB Trust, any holder of Capital
Securities of such ONB Trust 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 has
occurred and is continuing and such event is attributable to the failure of the
Company to pay interest or principal on the applicable series of Securities 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
Capital Securities issued by the ONB Trust which is, or the Property Trustee of
which is, the Holder of such Securities may directly institute a proceeding for
enforcement of payment to such holder of the principal of or interest on the
applicable series of Securities having a principal amount equal to the aggregate
liquidation amount of the Capital Securities of such holder (a "Direct Action")
on or after the respective due date specified of such holder on or after the
respective due date specified in the applicable series of Securities.
Notwithstanding any payments made to such holder of Capital Securities by the
Company in connection with a Direct
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Action, the Company shall remain obligated to pay the principal of or interest
on the series of Securities held by an ONB Trust or the Property Trustee of an
ONB Trust, and the Company shall be subrogated to the rights of the holder of
such Capital Securities to the extent of any payments made by the Company to
such holder in any Direct Action.
****
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This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
OLD NATIONAL BANCORP
By
------------------------------------------------
Name:
Title:
Attest:
---------------------------
Name:
Title:
BANK ONE TRUST COMPANY, NA,
As Trustee
By
------------------------------------------------
Name:
Title:
Attest:
---------------------------
Name:
Title:
77
<PAGE> 1
EXHIBIT 4.2
CERTIFICATE OF TRUST OF
ONB CAPITAL TRUST I
THIS Certificate of Trust of ONB CAPITAL TRUST I (the "Trust")
is being duly executed and filed on behalf of the Trust by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del.C. ss. 3801 et seq.) (the "Act").
1. Name. The name of the business trust formed by this
Certificate of Trust is ONB Capital Trust I.
2. Delaware Trustee. The name and business address of the
trustee of the Trust in the State of Delaware are Bank One Delaware, Inc., Three
Christiana Center, 201 North Walnut Street, Wilmington, Delaware 19801,
Attention: Legal Dept./First USA.
3. Effective Date. This Certificate of Trust shall be
effective upon filing with the Secretary of State.
IN WITNESS WHEREOF, the undersigned have duly executed this
Certificate of Trust in accordance with Section 3811(a)(1) of the Act.
BANK ONE DELAWARE, INC., as Delaware trustee
By: /s/ Sandra L. Caruba
Name: Sandra L. Caruba
Title: Vice President
BANK ONE TRUST COMPANY, NA, as Property
Trustee
By: /s/ Sandra L. Caruba
Name: Sandra L. Caruba
Title: Vice President
<PAGE> 1
EXHIBIT 4.3
TRUST AGREEMENT, dated as of September 15, 1999, among OLD
NATIONAL BANCORP, a multi-bank holding company organized under the laws of
Indiana, (including any successors or assigns, the "Depositor"), BANK ONE TRUST
COMPANY, NA, a national banking association organized under the laws of the
United States (the "Property Trustee"), and BANK ONE DELAWARE, INC., a Delaware
corporation (the "Delaware Trustee") (the Property Trustee and the Delaware
Trustee referred to collectively as the "Issuer Trustees"). The Depositor and
Issuer Trustees hereby agree as follows:
1. The trust created hereby shall be known as "ONB Capital
Trust I," in which name the Issuer Trustees, or the Depositor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets
over to the Property Trustee the sum of $10. The Property Trustee hereby
acknowledges receipt of such amount in trust from the Depositor, which amount
shall constitute the initial trust estate. The Property Trustee hereby declares
that it will hold the trust estate in trust for the Depositor. It is the
intention of the parties hereto that the Trust created hereby constitute a
business trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code
ss. 3801 et seq. (the "Business Trust Act"), and that this document constitute
the governing instrument of the Trust. The Issuer Trustees are hereby authorized
and directed to execute and file a certificate of trust in the office of the
Secretary of State of the State of Delaware in the form attached hereto. The
Trust is hereby established by the Depositor and the Issuer Trustees for the
purpose of (i) issuing and selling preferred securities ("Preferred Securities")
representing undivided beneficial interests in the assets of the Trust in
exchange for cash and investing the proceeds thereof in Junior Subordinated
Debentures of the Depositor (the "Debentures"), (ii) issuing and selling common
securities ("Common Securities" and, together with the Preferred Securities,
"Trust Securities") representing undivided beneficial interests in the assets of
the Trust to the Depositor in exchange for cash and investing the proceeds
thereof in additional Debentures and (iii) engaging in such other activities as
are necessary, convenient or incidental thereto.
3. Concurrent with the first issuance of any Trust Securities
by the Trust, the Depositor and the Issuer Trustees intend to enter into an
amended and restated Trust Agreement, satisfactory to each such party, to
provide for the contemplated operation of the Trust created hereby and the
issuance of the Preferred Securities and the Common Securities referred to
therein. Prior to the execution and delivery of such amended and restated Trust
Agreement, the Issuer Trustees shall not have any duty or obligation hereunder
or with respect to the trust estate.
4. The Depositor and the Property Trustee hereby authorize and
direct the Depositor, as the Depositor of the Trust, (i) to file with the
Securities and Exchange Commission (the "Commission") and execute, in each case
on behalf of the Trust, (a) the Registration Statement on Form S-3 (the "1933
Act Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended, of the Preferred Securities of the
Trust and possibly certain other securities and (b) a Registration Statement on
Form 8-A (the "1934 Act Registration Statement") (including all pre-effective
and post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under the Securities Exchange
<PAGE> 2
Act of 1934, as amended; (ii) to file with The New York Stock Exchange or any
other national stock exchange (each, an "Exchange") and execute on behalf of the
Trust one or more listing applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any of the
Exchanges; (iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities under the securities or blue sky
laws of such jurisdictions as the Depositor, on behalf of the Trust, may deem
necessary or desirable; and (iv) to execute on behalf of the Trust that certain
Underwriting Agreement relating to the Preferred Securities, among the Trust,
the Depositor and the Underwriter named therein, substantially in the form
included as an exhibit to the 1933 Act Registration Statement. In connection
with the filings referred to above, the Depositor hereby constitutes and
appoints John S. Poelker, Jeffrey L. Knight and Christopher A. Wolking, and each
of them, as its true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the Depositor or in the Depositor's name,
place and stead, in any and all capacities, to sign the 1933 Act Registration
Statement, the 1934 Act Registration Statement and any and all amendments
(including post-effective amendments) to the 1933 Act Registration Statement and
the 1934 Act Registration Statement and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Commission, the
Exchange and administrators of state securities or blue sky laws, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor might or could
to in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or any of them, or their respective substitute or substitutes, shall
do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of trustees initially shall be two (2) and
thereafter the number of trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor which may increase
or decrease the number of trustees; provided, however, that the number of
trustees shall in no event be less than one (1); and provided, further, however,
that to the extent required by the Business Trust Act, one trustee shall either
be a natural person who is a resident of the State of Delaware or, if not a
natural person, an entity which has its principal place of business in the State
of Delaware and meets any other requirements imposed by applicable law. Subject
to the foregoing, the Depositor is entitled to appoint or remove without cause
any trustee at any time. Any trustee may resign upon 30 days prior notice to the
Depositor.
7. The recitals contained in this Trust Agreement shall be
taken as statements of the Depositor, and the Issuer Trustees do not assume any
responsibility for their correctness. The Issuer Trustees make no
representations as to the value or condition of the property of the Trust or any
part thereof. The Issuer Trustees make no representations as to the validity or
sufficiency of this Trust Agreement.
8. (a) The Issuer Trustees (the "Fiduciary Indemnified
Persons") shall not be liable, responsible or accountable in damages or
otherwise to the Trust, the Depositor or any
<PAGE> 3
holder of the Trust Securities (the Trust, the Depositor and any holder of the
Trust Securities being a "Covered Person") for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by the Fiduciary
Indemnified Persons in good faith on behalf of the Trust and in a manner the
Fiduciary Indemnified Persons reasonably believed to be within the scope of
authority conferred on the Fiduciary Indemnified Persons by this Trust Agreement
or by law, except that the Fiduciary Indemnified Persons shall be liable for any
such loss, damage or claim incurred by reason of the Fiduciary Indemnified
Person's negligence or bad faith with respect to such acts or omissions.
(b) The Fiduciary Indemnified Persons shall be fully protected
in relying in good faith upon the records of the Trust and upon such
information, opinions, reports or statements presented to the Trust by any
person as to matters the Fiduciary Indemnified Persons 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 Trust, including
information, opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other facts pertinent to the
existence and amount of assets from which distributions to holders of Trust
Securities might properly be paid.
9. The Depositor agrees, to the fullest extent permitted by
applicable law,
(a) to indemnify and hold harmless each Fiduciary Indemnified
Person, or any of its officers, directors, shareholders, employees,
representatives or agents, from and against any loss, damage, liability, tax,
penalty, expense or claim of any kind or nature whatsoever incurred by the
Fiduciary Indemnified Persons by reason of the creation, operation or
termination of the Trust in a manner the Fiduciary Indemnified Persons
reasonably believed to be within the scope of authority conferred on the
Fiduciary Indemnified Persons by this Trust Agreement, except that no Fiduciary
Indemnified Persons shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by the Fiduciary Indemnified Persons by reason of
negligence or willful misconduct with respect to such acts or omissions; and
(b) to advance expenses (including legal fees) incurred by a
Fiduciary Indemnified Person in defending any claim, demand, action, suit or
proceeding shall, from time to time, prior to the final disposition of such
claim, demand, action, suit or proceeding, upon receipt by the Trust of an
undertaking by or on behalf of such Fiduciary Indemnified Persons to repay such
amount if it shall be determined that such Fiduciary Indemnified Person is not
entitled to be indemnified as authorized in the preceding subsection.
10. The provisions of Section 9 shall survive the termination
of this Trust Agreement or the earlier resignation or removal of the Fiduciary
Indemnified Persons.
11. The Trust may terminate without issuing any Trust
Securities at the election of the Depositor.
12. The Delaware Trustee shall not have any of the powers or
duties of the Issuer Trustees set forth herein, except as required under the
Business Trust Act. The Delaware Trustee shall be an Issuer Trustee hereunder
for the sole and limited purpose of fulfilling the
<PAGE> 4
requirements of 3807(a) of the Business Trust Act.
13. This Trust Agreement and the rights of the parties
hereunder shall be governed by and interpreted in accordance with the laws of
the State of Delaware and all rights and remedies shall be governed by such laws
without regard to the principles of conflict of laws.
[SIGNATURE PAGE FOLLOWS]
<PAGE> 5
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
OLD NATIONAL BANCORP, as Depositor
By: /s/ RONALD B. LANKFORD
--------------------------------
Name: Ronald B. Lankford
Title: President and Chief Operating
Officer
BANK ONE TRUST COMPANY, N.A., as
Property Trustee
By: /s/ SANDRA L. CARUBA
--------------------------------
Name: Sandra L. Caruba
Title: Vice President
BANK ONE DELAWARE, INC., as Delaware
Trustee
By: /s/ SANDRA L. CARUBA
--------------------------------
Name: Sandra L. Caruba
Title: Vice President
<PAGE> 1
EXHIBIT 4.4
CERTIFICATE OF TRUST OF
ONB CAPITAL TRUST II
THIS Certificate of Trust of ONB CAPITAL TRUST II (the "Trust") is
being duly executed and filed on behalf of the Trust by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del.C. ss. 3801 et seq.) (the "Act").
1. Name. The name of the business trust formed by this Certificate of
Trust is ONB Capital Trust II.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware are Bank One Delaware, Inc., Three Christiana
Center, 201 North Walnut Street, Wilmington, Delaware 19801, Attention: Legal
Dept./First USA.
3. Effective Date. This Certificate of Trust shall be effective upon
filing with the Secretary of State.
IN WITNESS WHEREOF, the undersigned have duly executed this Certificate
of Trust in accordance with Section 3811(a)(1) of the Act.
BANK ONE DELAWARE, INC., as Delaware trustee
By: /s/ Sandra L. Caruba
----------------------------
Name: Sandra L. Caruba
Title: Vice President
BANK ONE TRUST COMPANY, NA, as Property
Trustee
By: /s/ Sandra L. Caruba
----------------------------
Name: Sandra L. Caruba
Title: Vice President
<PAGE> 1
EXHIBIT 4.5
TRUST AGREEMENT, dated as of September 15, 1999, among OLD NATIONAL
BANCORP, a multi-bank holding company organized under the laws of Indiana,
(including any successors or assigns, the "Depositor"), BANK ONE TRUST COMPANY,
NA, a national banking association organized under the laws of the United States
(the "Property Trustee"), and BANK ONE DELAWARE, INC., a Delaware corporation
(the "Delaware Trustee") (the Property Trustee and the Delaware Trustee referred
to collectively as the "Issuer Trustees"). The Depositor and Issuer Trustees
hereby agree as follows:
1. The trust created hereby shall be known as "ONB Capital Trust II,"
in which name the Issuer Trustees, or the Depositor to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Property Trustee the sum of $10. The Property Trustee hereby acknowledges
receipt of such amount in trust from the Depositor, which amount shall
constitute the initial trust estate. The Property Trustee hereby declares that
it will hold the trust estate in trust for the Depositor. It is the intention of
the parties hereto that the Trust created hereby constitute a business trust
under Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code ss. 3801 et seq.
(the "Business Trust Act"), and that this document constitute the governing
instrument of the Trust. The Issuer Trustees are hereby authorized and directed
to execute and file a certificate of trust in the office of the Secretary of
State of the State of Delaware in the form attached hereto. The Trust is hereby
established by the Depositor and the Issuer Trustees for the purpose of (i)
issuing and selling preferred securities ("Preferred Securities") representing
undivided beneficial interests in the assets of the Trust in exchange for cash
and investing the proceeds thereof in Junior Subordinated Debentures of the
Depositor (the "Debentures"), (ii) issuing and selling common securities
("Common Securities" and, together with the Preferred Securities, "Trust
Securities") representing undivided beneficial interests in the assets of the
Trust to the Depositor in exchange for cash and investing the proceeds thereof
in additional Debentures and (iii) engaging in such other activities as are
necessary, convenient or incidental thereto.
3. Concurrent with the first issuance of any Trust Securities by the
Trust, the Depositor and the Issuer Trustees intend to enter into an amended and
restated Trust Agreement, satisfactory to each such party, to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Preferred Securities and the Common Securities referred to therein. Prior to the
execution and delivery of such amended and restated Trust Agreement, the Issuer
Trustees shall not have any duty or obligation hereunder or with respect to the
trust estate.
4. The Depositor and the Property Trustee hereby authorize and direct
the Depositor, as the Depositor of the Trust, (i) to file with the Securities
and Exchange Commission (the "Commission") and execute, in each case on behalf
of the Trust, (a) the Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended, of the Preferred Securities of the
Trust and possibly certain other securities and (b) a Registration Statement on
Form 8-A (the "1934 Act Registration Statement") (including all pre-effective
and post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under the Securities Exchange
<PAGE> 2
Act of 1934, as amended; (ii) to file with The New York Stock Exchange or any
other national stock exchange (each, an "Exchange") and execute on behalf of the
Trust one or more listing applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any of the
Exchanges; (iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities under the securities or blue sky
laws of such jurisdictions as the Depositor, on behalf of the Trust, may deem
necessary or desirable; and (iv) to execute on behalf of the Trust that certain
Underwriting Agreement relating to the Preferred Securities, among the Trust,
the Depositor and the Underwriter named therein, substantially in the form
included as an exhibit to the 1933 Act Registration Statement. In connection
with the filings referred to above, the Depositor hereby constitutes and
appoints John S. Poelker, Jeffrey L. Knight and Christopher A. Wolking, and each
of them, as its true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the Depositor or in the Depositor's name,
place and stead, in any and all capacities, to sign the 1933 Act Registration
Statement, the 1934 Act Registration Statement and any and all amendments
(including post-effective amendments) to the 1933 Act Registration Statement and
the 1934 Act Registration Statement and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Commission, the
Exchange and administrators of state securities or blue sky laws, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor might or could
to in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or any of them, or their respective substitute or substitutes, shall
do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees initially shall be two (2) and thereafter the
number of trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Depositor which may increase or decrease the
number of trustees; provided, however, that the number of Trustees shall in no
event be less than one (1); and provided, further, however, that to the extent
required by the Business Trust Act, one Trustee shall either be a natural person
who is a resident of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of Delaware and
meets any other requirements imposed by applicable law. Subject to the
foregoing, the Depositor is entitled to appoint or remove without cause any
trustee at any time. Any trustee may resign upon 30 days prior notice to the
Depositor.
7. The recitals contained in this Trust Agreement shall be taken as
statements of the Depositor, and the Issuer Trustees do not assume any
responsibility for their correctness. The Issuer Trustees make no
representations as to the value or condition of the property of the Trust or any
part thereof. The Issuer Trustees make no representations as to the validity or
sufficiency of this Trust Agreement.
8. (a) The Issuer Trustees (the "Fiduciary Indemnified Persons") shall
not be liable, responsible or accountable in damages or otherwise to the Trust,
the Depositor or any
<PAGE> 3
holder of the Trust Securities (the Trust, the Depositor and any holder of the
Trust Securities being a "Covered Person") for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by the Fiduciary
Indemnified Persons in good faith on behalf of the Trust and in a manner the
Fiduciary Indemnified Persons reasonably believed to be within the scope of
authority conferred on the Fiduciary Indemnified Persons by this Trust Agreement
or by law, except that the Fiduciary Indemnified Persons shall be liable for any
such loss, damage or claim incurred by reason of the Fiduciary Indemnified
Person's negligence or bad faith with respect to such acts or omissions.
(b) The Fiduciary Indemnified Persons shall be fully protected
in relying in good faith upon the records of the Trust and upon such
information, opinions, reports or statements presented to the Trust by any
person as to matters the Fiduciary Indemnified Persons 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 Trust, including
information, opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other facts pertinent to the
existence and amount of assets from which distributions to holders of Trust
Securities might properly be paid.
9. The Depositor agrees, to the fullest extent permitted by applicable
law,
(a) to indemnify and hold harmless each Fiduciary Indemnified
Person, or any of its officers, directors, shareholders, employees,
representatives or agents, from and against any loss, damage, liability, tax,
penalty, expense or claim of any kind or nature whatsoever incurred by the
Fiduciary Indemnified Persons by reason of the creation, operation or
termination of the Trust in a manner the Fiduciary Indemnified Persons
reasonably believed to be within the scope of authority conferred on the
Fiduciary Indemnified Persons by this Trust Agreement, except that no Fiduciary
Indemnified Persons shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by the Fiduciary Indemnified Persons by reason of
negligence or willful misconduct with respect to such acts or omissions; and
(b) to advance expenses (including legal fees) incurred by a
Fiduciary Indemnified Person in defending any claim, demand, action, suit or
proceeding shall, from time to time, prior to the final disposition of such
claim, demand, action, suit or proceeding, upon receipt by the Trust of an
undertaking by or on behalf of such Fiduciary Indemnified Persons to repay such
amount if it shall be determined that such Fiduciary Indemnified Person is not
entitled to be indemnified as authorized in the preceding subsection.
10. The provisions of Section 9 shall survive the termination of this
Trust Agreement or the earlier resignation or removal of the Fiduciary
Indemnified Persons.
11. The Trust may terminate without issuing any Trust Securities at the
election of the Depositor.
12. The Delaware Trustee shall not have any of the powers or duties of
the Issuer Trustees set forth herein, except as required under the Business
Trust Act. The Delaware Trustee shall be an Issuer Trustee hereunder for the
sole and limited purpose of fulfilling the
<PAGE> 4
requirements of 3807(a) of the Business Trust Act.
13. This Trust Agreement and the rights of the parties hereunder shall
be governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to the principles of conflict of laws.
[SIGNATURE PAGE FOLLOWS]
<PAGE> 5
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
OLD NATIONAL BANCORP, as Depositor
By: /s/ RONALD B. LANKFORD
--------------------------------
Name: Ronald B. Lankford
Title: President and Chief Operating
Officer
BANK ONE TRUST COMPANY, N.A., as
Property Trustee
By: /s/ SANDRA L. CARUBA
--------------------------------
Name: Sandra L. Caruba
Title: Vice President
BANK ONE DELAWARE, INC., as Delaware
Trustee
By: /s/ SANDRA L. CARUBA
--------------------------------
Name: Sandra L. Caruba
Title: Vice President
<PAGE> 1
EXHIBIT 4.6
CERTIFICATE OF TRUST OF
ONB CAPITAL TRUST III
THIS Certificate of Trust of ONB CAPITAL TRUST III (the
"Trust") is being duly executed and filed on behalf of the Trust by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del.C. ss. 3801 et seq.) (the "Act").
1. Name. The name of the business trust formed by this
Certificate of Trust is ONB Capital Trust III.
2. Delaware Trustee. The name and business address of the
trustee of the Trust in the State of Delaware are Bank One Delaware, Inc., Three
Christiana Center, 201 North Walnut Street, Wilmington, Delaware 19801,
Attention: Legal Dept./First USA.
3. Effective Date. This Certificate of Trust shall be
effective upon filing with the Secretary of State.
IN WITNESS WHEREOF, the undersigned have duly executed this
Certificate of Trust in accordance with Section 3811(a)(1) of the Act.
BANK ONE DELAWARE, INC., as Delaware trustee
By: /s/ Sandra L. Caruba
---------------------
Name: Sandra L. Caruba
Title: Vice President
BANK ONE TRUST COMPANY, NA, as Property Trustee
By: /s/ Sandra L. Caruba
---------------------
Name: Sandra L. Caruba
Title: Vice President
<PAGE> 1
EXHIBIT 4.7
TRUST AGREEMENT, dated as of September 15, 1999, among OLD
NATIONAL BANCORP, a multi-bank holding company organized under the laws of
Indiana, (including any successors or assigns, the "Depositor"), BANK ONE TRUST
COMPANY, NA, a national banking association organized under the laws of the
United States (the "Property Trustee"), and BANK ONE DELAWARE, INC., a Delaware
corporation (the "Delaware Trustee") (the Property Trustee and the Delaware
Trustee referred to collectively as the "Issuer Trustees"). The Depositor and
Issuer Trustees hereby agree as follows:
1. The trust created hereby shall be known as "ONB Capital
Trust III," in which name the Issuer Trustees, or the Depositor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets
over to the Property Trustee the sum of $10. The Property Trustee hereby
acknowledges receipt of such amount in trust from the Depositor, which amount
shall constitute the initial trust estate. The Property Trustee hereby declares
that it will hold the trust estate in trust for the Depositor. It is the
intention of the parties hereto that the Trust created hereby constitute a
business trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code
ss. 3801 et seq. (the "Business Trust Act"), and that this document constitute
the governing instrument of the Trust. The Issuer Trustees are hereby authorized
and directed to execute and file a certificate of trust in the office of the
Secretary of State of the State of Delaware in the form attached hereto. The
Trust is hereby established by the Depositor and the Issuer Trustees for the
purpose of (i) issuing and selling preferred securities ("Preferred Securities")
representing undivided beneficial interests in the assets of the Trust in
exchange for cash and investing the proceeds thereof in Junior Subordinated
Debentures of the Depositor (the "Debentures"), (ii) issuing and selling common
securities ("Common Securities" and, together with the Preferred Securities,
"Trust Securities") representing undivided beneficial interests in the assets of
the Trust to the Depositor in exchange for cash and investing the proceeds
thereof in additional Debentures and (iii) engaging in such other activities as
are necessary, convenient or incidental thereto.
3. Concurrent with the first issuance of any Trust Securities
by the Trust, the Depositor and the Issuer Trustees intend to enter into an
amended and restated Trust Agreement, satisfactory to each such party, to
provide for the contemplated operation of the Trust created hereby and the
issuance of the Preferred Securities and the Common Securities referred to
therein. Prior to the execution and delivery of such amended and restated Trust
Agreement, the Issuer Trustees shall not have any duty or obligation hereunder
or with respect to the trust estate.
4. The Depositor and the Property Trustee hereby authorize and
direct the Depositor, as the Depositor of the Trust, (i) to file with the
Securities and Exchange Commission (the "Commission") and execute, in each case
on behalf of the Trust, (a) the Registration Statement on Form S-3 (the "1933
Act Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended, of the Preferred Securities of the
Trust and possibly certain other securities and (b) a Registration Statement on
Form 8-A (the "1934 Act Registration Statement") (including all pre-effective
and post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under the Securities Exchange
<PAGE> 2
Act of 1934, as amended; (ii) to file with The New York Stock Exchange or any
other national stock exchange (each, an "Exchange") and execute on behalf of the
Trust one or more listing applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any of the
Exchanges; (iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities under the securities or blue sky
laws of such jurisdictions as the Depositor, on behalf of the Trust, may deem
necessary or desirable; and (iv) to execute on behalf of the Trust that certain
Underwriting Agreement relating to the Preferred Securities, among the Trust,
the Depositor and the Underwriter named therein, substantially in the form
included as an exhibit to the 1933 Act Registration Statement. In connection
with the filings referred to above, the Depositor hereby constitutes and
appoints John S. Poelker, Jeffrey L. Knight and Christopher A. Wolking, and each
of them, as its true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the Depositor or in the Depositor's name,
place and stead, in any and all capacities, to sign the 1933 Act Registration
Statement, the 1934 Act Registration Statement and any and all amendments
(including post-effective amendments) to the 1933 Act Registration Statement and
the 1934 Act Registration Statement and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Commission, the
Exchange and administrators of state securities or blue sky laws, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor might or could
to in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or any of them, or their respective substitute or substitutes, shall
do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of trustees initially shall be two (2) and
thereafter the number of trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor which may increase
or decrease the number of trustees; provided, however, that the number of
trustees shall in no event be less than one (1); and provided, further, however,
that to the extent required by the Business Trust Act, one trustee shall either
be a natural person who is a resident of the State of Delaware or, if not a
natural person, an entity which has its principal place of business in the State
of Delaware and meets any other requirements imposed by applicable law. Subject
to the foregoing, the Depositor is entitled to appoint or remove without cause
any trustee at any time. Any trustee may resign upon 30 days prior notice to the
Depositor.
7. The recitals contained in this Trust Agreement shall be
taken as statements of the Depositor, and the Issuer Trustees do not assume any
responsibility for their correctness. The Issuer Trustees make no
representations as to the value or condition of the property of the Trust or any
part thereof. The Issuer Trustees make no representations as to the validity or
sufficiency of this Trust Agreement.
8. (a) The Issuer Trustees (the "Fiduciary Indemnified
Persons") shall not be liable, responsible or accountable in damages or
otherwise to the Trust, the Depositor or any
<PAGE> 3
holder of the Trust Securities (the Trust, the Depositor and any holder of the
Trust Securities being a "Covered Person") for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by the Fiduciary
Indemnified Persons in good faith on behalf of the Trust and in a manner the
Fiduciary Indemnified Persons reasonably believed to be within the scope of
authority conferred on the Fiduciary Indemnified Persons by this Trust Agreement
or by law, except that the Fiduciary Indemnified Persons shall be liable for any
such loss, damage or claim incurred by reason of the Fiduciary Indemnified
Person's negligence or bad faith with respect to such acts or omissions.
(b) The Fiduciary Indemnified Persons shall be fully protected
in relying in good faith upon the records of the Trust and upon such
information, opinions, reports or statements presented to the Trust by any
person as to matters the Fiduciary Indemnified Persons 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 Trust, including
information, opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other facts pertinent to the
existence and amount of assets from which distributions to holders of Trust
Securities might properly be paid.
9. The Depositor agrees, to the fullest extent permitted by
applicable law,
(a) to indemnify and hold harmless each Fiduciary Indemnified
Person, or any of its officers, directors, shareholders, employees,
representatives or agents, from and against any loss, damage, liability, tax,
penalty, expense or claim of any kind or nature whatsoever incurred by the
Fiduciary Indemnified Persons by reason of the creation, operation or
termination of the Trust in a manner the Fiduciary Indemnified Persons
reasonably believed to be within the scope of authority conferred on the
Fiduciary Indemnified Persons by this Trust Agreement, except that no Fiduciary
Indemnified Persons shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by the Fiduciary Indemnified Persons by reason of
negligence or willful misconduct with respect to such acts or omissions; and
(b) to advance expenses (including legal fees) incurred by a
Fiduciary Indemnified Person in defending any claim, demand, action, suit or
proceeding shall, from time to time, prior to the final disposition of such
claim, demand, action, suit or proceeding, upon receipt by the Trust of an
undertaking by or on behalf of such Fiduciary Indemnified Persons to repay such
amount if it shall be determined that such Fiduciary Indemnified Person is not
entitled to be indemnified as authorized in the preceding subsection.
10. The provisions of Section 9 shall survive the termination
of this Trust Agreement or the earlier resignation or removal of the Fiduciary
Indemnified Persons.
11. The Trust may terminate without issuing any Trust
Securities at the election of the Depositor.
12. The Delaware Trustee shall not have any of the powers or
duties of the Issuer Trustees set forth herein, except as required under the
Business Trust Act. The Delaware Trustee shall be an Issuer Trustee hereunder
for the sole and limited purpose of fulfilling the requirements of 3807(a) of
the Business Trust Act.
13. This Trust Agreement and the rights of the parties
hereunder shall be governed by and interpreted in accordance with the laws of
the State of Delaware and all rights and remedies shall be governed by such laws
without regard to the principles of conflict of laws.
[SIGNATURE PAGE FOLLOWS]
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
OLD NATIONAL BANCORP, as Depositor
By: /s/ RONALD B. LANKFORD
--------------------------------
Name: Ronald B. Lankford
Title: President and Chief Operating
Officer
BANK ONE TRUST COMPANY, N.A., as
Property Trustee
By: /s/ SANDRA L. CARUBA
--------------------------------
Name: Sandra L. Caruba
Title: Vice President
BANK ONE DELAWARE, INC., as Delaware
Trustee
By: /s/ SANDRA L. CARUBA
--------------------------------
Name: Sandra L. Caruba
Title: Vice President
<PAGE> 1
EXHIBIT 4.8
CERTIFICATE OF TRUST OF
ONB CAPITAL TRUST IV
THIS Certificate of Trust of ONB CAPITAL TRUST IV (the
"Trust") is being duly executed and filed on behalf of the Trust by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del.C. ss. 3801 et seq.) (the "Act").
1. Name. The name of the business trust formed by this
Certificate of Trust is ONB Capital Trust IV.
2. Delaware Trustee. The name and business address of the
trustee of the Trust in the State of Delaware are Bank One Delaware, Inc., Three
Christiana Center, 201 North Walnut Street, Wilmington, Delaware 19801,
Attention: Legal Dept./First USA.
3. Effective Date. This Certificate of Trust shall be
effective upon filing with the Secretary of State.
IN WITNESS WHEREOF, the undersigned have duly executed this
Certificate of Trust in accordance with Section 3811(a)(1) of the Act.
BANK ONE DELAWARE, INC., as Delaware trustee
By: /s/ Sandra L. Caruba
------------------------------------
Name: Sandra L. Caruba
Title: Vice President
BANK ONE TRUST COMPANY, NA, as Property
Trustee
By: /s/ Sandra L. Caruba
------------------------------------
Name: Sandra L. Caruba
Title: Vice President
<PAGE> 1
EXHIBIT 4.9
TRUST AGREEMENT, dated as of September 15, 1999, among OLD
NATIONAL BANCORP, a multi-bank holding company organized under the laws of
Indiana, (including any successors or assigns, the "Depositor"), BANK ONE TRUST
COMPANY, NA, a national banking association organized under the laws of the
United States (the "Property Trustee"), and BANK ONE DELAWARE, INC., a Delaware
corporation (the "Delaware Trustee") (the Property Trustee and the Delaware
Trustee referred to collectively as the "Issuer Trustees"). The Depositor and
Issuer Trustees hereby agree as follows:
1. The trust created hereby shall be known as "ONB Capital
Trust IV," in which name the Issuer Trustees, or the Depositor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets
over to the Property Trustee the sum of $10. The Property Trustee hereby
acknowledges receipt of such amount in trust from the Depositor, which amount
shall constitute the initial trust estate. The Property Trustee hereby declares
that it will hold the trust estate in trust for the Depositor. It is the
intention of the parties hereto that the Trust created hereby constitute a
business trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code
ss. 3801 et seq. (the "Business Trust Act"), and that this document constitute
the governing instrument of the Trust. The Issuer Trustees are hereby authorized
and directed to execute and file a certificate of trust in the office of the
Secretary of State of the State of Delaware in the form attached hereto. The
Trust is hereby established by the Depositor and the Issuer Trustees for the
purpose of (i) issuing and selling preferred securities ("Preferred Securities")
representing undivided beneficial interests in the assets of the Trust in
exchange for cash and investing the proceeds thereof in Junior Subordinated
Debentures of the Depositor (the "Debentures"), (ii) issuing and selling common
securities ("Common Securities" and, together with the Preferred Securities,
"Trust Securities") representing undivided beneficial interests in the assets of
the Trust to the Depositor in exchange for cash and investing the proceeds
thereof in additional Debentures and (iii) engaging in such other activities as
are necessary, convenient or incidental thereto.
3. Concurrent with the first issuance of any Trust Securities
by the Trust, the Depositor and the Issuer Trustees intend to enter into an
amended and restated Trust Agreement, satisfactory to each such party, to
provide for the contemplated operation of the Trust created hereby and the
issuance of the Preferred Securities and the Common Securities referred to
therein. Prior to the execution and delivery of such amended and restated Trust
Agreement, the Issuer Trustees shall not have any duty or obligation hereunder
or with respect to the trust estate.
4. The Depositor and the Property Trustee hereby authorize and
direct the Depositor, as the Depositor of the Trust, (i) to file with the
Securities and Exchange Commission (the "Commission") and execute, in each case
on behalf of the Trust, (a) the Registration Statement on Form S-3 (the "1933
Act Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended, of the Preferred Securities of the
Trust and possibly certain other securities and (b) a Registration Statement on
Form 8-A (the "1934 Act Registration Statement") (including all pre-effective
and post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under the Securities Exchange Act of 1934,
<PAGE> 2
as amended; (ii) to file with The New York Stock Exchange or any other national
stock exchange (each, an "Exchange") and execute on behalf of the Trust one or
more listing applications and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to cause
the Preferred Securities to be listed on any of the Exchanges; (iii) to file
and execute on behalf of the Trust such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and other
papers and documents as shall be necessary or desirable to register the
Preferred Securities under the securities or blue sky laws of such
jurisdictions as the Depositor, on behalf of the Trust, may deem necessary or
desirable; and (iv) to execute on behalf of the Trust that certain Underwriting
Agreement relating to the Preferred Securities, among the Trust, the Depositor
and the Underwriter named therein, substantially in the form included as an
exhibit to the 1933 Act Registration Statement. In connection with the filings
referred to above, the Depositor hereby constitutes and appoints John S.
Poelker, Jeffrey L. Knight and Christopher A. Wolking, and each of them, as its
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for the Depositor or in the Depositor's name, place and
stead, in any and all capacities, to sign the 1933 Act Registration Statement,
the 1934 Act Registration Statement and any and all amendments (including
post-effective amendments) to the 1933 Act Registration Statement and the 1934
Act Registration Statement and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Commission, the Exchange and
administrators of state securities or blue sky laws, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor might or could
to in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or any of them, or their respective substitute or substitutes, shall
do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of trustees initially shall be two (2) and
thereafter the number of trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor which may increase
or decrease the number of trustees; provided, however, that the number of
trustees shall in no event be less than one (1); and provided, further, however,
that to the extent required by the Business Trust Act, one trustee shall either
be a natural person who is a resident of the State of Delaware or, if not a
natural person, an entity which has its principal place of business in the State
of Delaware and meets any other requirements imposed by applicable law. Subject
to the foregoing, the Depositor is entitled to appoint or remove without cause
any trustee at any time. Any trustee may resign upon 30 days prior notice to the
Depositor.
7. The recitals contained in this Trust Agreement shall be
taken as statements of the Depositor, and the Issuer Trustees do not assume any
responsibility for their correctness. The Issuer Trustees make no
representations as to the value or condition of the property of the Trust or any
part thereof. The Issuer Trustees make no representations as to the validity or
sufficiency of this Trust Agreement.
8. (a) The Issuer Trustees (the "Fiduciary Indemnified
Persons") shall not be liable, responsible or accountable in damages or
otherwise to the Trust, the Depositor or any holder of the Trust Securities
<PAGE> 3
holder of the Trust Securities (the Trust, the Depositor and any holder of the
Trust Securities being a "Covered Person") for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by the Fiduciary
Indemnified Persons in good faith on behalf of the Trust and in a manner the
Fiduciary Indemnified Persons reasonably believed to be within the scope of
authority conferred on the Fiduciary Indemnified Persons by this Trust Agreement
or by law, except that the Fiduciary Indemnified Persons shall be liable for any
such loss, damage or claim incurred by reason of the Fiduciary Indemnified
Person's negligence or bad faith with respect to such acts or omissions.
(b) The Fiduciary Indemnified Persons shall be fully protected
in relying in good faith upon the records of the Trust and upon such
information, opinions, reports or statements presented to the Trust by any
person as to matters the Fiduciary Indemnified Persons 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 Trust, including
information, opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other facts pertinent to the
existence and amount of assets from which distributions to holders of Trust
Securities might properly be paid.
9. The Depositor agrees, to the fullest extent permitted by
applicable law,
(a) to indemnify and hold harmless each Fiduciary Indemnified
Person, or any of its officers, directors, shareholders, employees,
representatives or agents, from and against any loss, damage, liability, tax,
penalty, expense or claim of any kind or nature whatsoever incurred by the
Fiduciary Indemnified Persons by reason of the creation, operation or
termination of the Trust in a manner the Fiduciary Indemnified Persons
reasonably believed to be within the scope of authority conferred on the
Fiduciary Indemnified Persons by this Trust Agreement, except that no Fiduciary
Indemnified Persons shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by the Fiduciary Indemnified Persons by reason of
negligence or willful misconduct with respect to such acts or omissions; and
(b) to advance expenses (including legal fees) incurred by a
Fiduciary Indemnified Person in defending any claim, demand, action, suit or
proceeding shall, from time to time, prior to the final disposition of such
claim, demand, action, suit or proceeding, upon receipt by the Trust of an
undertaking by or on behalf of such Fiduciary Indemnified Persons to repay such
amount if it shall be determined that such Fiduciary Indemnified Person is not
entitled to be indemnified as authorized in the preceding subsection.
10. The provisions of Section 9 shall survive the termination
of this Trust Agreement or the earlier resignation or removal of the Fiduciary
Indemnified Persons.
11. The Trust may terminate without issuing any Trust
Securities at the election of the Depositor.
12. The Delaware Trustee shall not have any of the powers or
duties of the Issuer Trustees set forth herein, except as required under the
Business Trust Act. The Delaware Trustee shall be an Issuer Trustee hereunder
for the sole and limited purpose of fulfilling the
<PAGE> 4
(the Trust, the Depositor and any holder of the Trust Securities being a
"Covered Person") for any loss, damage or claim incurred by reason of any act
or omission performed or omitted by the Fiduciary Indemnified Persons in good
faith on behalf of the Trust and in a manner the Fiduciary Indemnified Persons
reasonably believed to be within the scope of authority conferred on the
Fiduciary Indemnified Persons by this Trust Agreement or by law, except that
the Fiduciary Indemnified Persons shall be liable for any such loss, damage or
claim incurred by reason of the Fiduciary Indemnified Person's negligence or
bad faith with respect to such acts or omissions.
(b) The Fiduciary Indemnified Persons shall be fully protected
in relying in good faith upon the records of the Trust and upon such
information, opinions, reports or statements presented to the Trust by any
person as to matters the Fiduciary Indemnified Persons 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 Trust, including
information, opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other facts pertinent to the
existence and amount of assets from which distributions to holders of Trust
Securities might properly be paid.
9. The Depositor agrees, to the fullest extent permitted by
applicable law,
(a) to indemnify and hold harmless each Fiduciary Indemnified
Person, or any of its officers, directors, shareholders, employees,
representatives or agents, from and against any loss, damage, liability, tax,
penalty, expense or claim of any kind or nature whatsoever incurred by the
Fiduciary Indemnified Persons by reason of the creation, operation or
termination of the Trust in a manner the Fiduciary Indemnified Persons
reasonably believed to be within the scope of authority conferred on the
Fiduciary Indemnified Persons by this Trust Agreement, except that no Fiduciary
Indemnified Persons shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by the Fiduciary Indemnified Persons by reason of
negligence or willful misconduct with respect to such acts or omissions; and
(b) to advance expenses (including legal fees) incurred by a
Fiduciary Indemnified Person in defending any claim, demand, action, suit or
proceeding shall, from time to time, prior to the final disposition of such
claim, demand, action, suit or proceeding, upon receipt by the Trust of an
undertaking by or on behalf of such Fiduciary Indemnified Persons to repay such
amount if it shall be determined that such Fiduciary Indemnified Person is not
entitled to be indemnified as authorized in the preceding subsection.
10. The provisions of Section 9 shall survive the termination
of this Trust Agreement or the earlier resignation or removal of the Fiduciary
Indemnified Persons.
11. The Trust may terminate without issuing any Trust
Securities at the election of the Depositor.
12. The Delaware Trustee shall not have any of the powers or
duties of the Issuer Trustees set forth herein, except as required under the
Business Trust Act. The Delaware Trustee shall be an Issuer Trustee hereunder
for the sole and limited purpose of fulfilling the requirements of 3807(a) of
the Business Trust Act.
<PAGE> 5
13. This Trust Agreement and the rights of the parties
hereunder shall be governed by and interpreted in accordance with the laws of
the State of Delaware and all rights and remedies shall be governed by such laws
without regard to the principles of conflict of laws.
[SIGNATURE PAGE FOLLOWS]
<PAGE> 6
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
OLD NATIONAL BANCORP, as Depositor
By: /s/ RONALD B. LANKFORD
-----------------------------------------
Name: Ronald B. Lankford
Title: President and Chief Operating Officer
BANK ONE TRUST COMPANY, N.A., as Property
Trustee
By: /s/ SANDRA L. CARUBA
-----------------------------------------
Name: Sandra L. Caruba
Title: Vice President
BANK ONE DELAWARE, INC., as Delaware Trustee
By: /s/ SANDRA L. CARUBA
-----------------------------------------
Name: Sandra L. Caruba
Title: Vice President
<PAGE> 1
EXHIBIT 4.10
[FORM OF AMENDED AND RESTATED TRUST AGREEMENT]
----------------------------------------------------------------------------
AMENDED AND RESTATED TRUST AGREEMENT
among
OLD NATIONAL BANCORP,
as Depositor,
BANK ONE TRUST COMPANY, NA,
as Property Trustee,
BANK ONE DELAWARE, INC.,
as Delaware Trustee
and
THE SEVERAL HOLDERS OF THE TRUST SECURITIES
dated as of , 1999
ONB CAPITAL TRUST
----------------------------------------------------------------------------
<PAGE> 2
Certain Sections of this Trust Agreement Relating
to Section 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Sections of this
Act Section Trust Agreement
Section 310(a)(1).................................... 8.7(a), 8.7(b)
(a)(2)............................................... 8.7(a)
(a)(3)............................................... 8.9
(a)(4)............................................... 8.5, 2.7
(a)(ii)(b)........................................... 8.8
Section 311(a)....................................... 8.13
(b).................................................. 8.13
Section 312(a)....................................... 5.7
(b).................................................. 5.7
(c).................................................. 5.7
Section 313(a)....................................... 8.14(a)
(a)(4)............................................... 8.14(a)
(b).................................................. 8.14(a)
(c).................................................. 8.14(a), 10.8
Section 314(a)....................................... 8.15
(b).................................................. Not Applicable
(c)(1)............................................... 8.16
(c)(2)............................................... 8.16
(c)(3)............................................... Not Applicable
(d).................................................. Not Applicable
(e).................................................. 1.1, 8.16
Section 315(a)....................................... 8.1(a), (c), 8.3(a)
(b).................................................. 8.2, 10.8
(c).................................................. 8.1(a)
(d).................................................. 1, 8.3
(e).................................................. Not Applicable
Section 316(a)....................................... Not Applicable
(a)(1)(A)............................................ Not Applicable
(a)(1)(B)............................................ Not Applicable
(a)(2)............................................... Not Applicable
(b).................................................. 5.14
(c).................................................. 6.7
Section 317(a)(1).................................... Not Applicable
(a)(2)............................................... Not Applicable
(b).................................................. 5.9, 8.2
Section 318(a)....................................... 10.10
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed to
be a part of the Trust Agreement.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
ARTICLE I
DEFINED TERMS
<S> <C>
Section 1.1. Definitions.....................................................................................1
ARTICLE II
ESTABLISHMENT OF THE TRUST
Section 2.1. Name...........................................................................................10
Section 2.2. Office of the Delaware Trustee; Principal Place of Business of the Trust.......................10
Section 2.3. Initial Contribution of Trust Property; Organizational Expenses................................10
Section 2.4. Issuance of the Preferred Securities...........................................................11
Section 2.5. Issuance of the Common Securities; Subscription and Purchase of Debentures.....................11
Section 2.6. Declaration of Trust...........................................................................11
Section 2.7. Authorization to Enter into Certain Transactions...............................................12
Section 2.8. Assets of Trust................................................................................15
Section 2.9. Title to Trust Property........................................................................15
ARTICLE III
PAYMENT ACCOUNT
Section 3.1. Payment Account................................................................................16
ARTICLE IV
CERTAIN TERMS OF THE TRUST SECURITIES
Section 4.1. Distributions..................................................................................16
Section 4.2. Redemption.....................................................................................17
Section 4.3. Subordination of Common Securities.............................................................19
Section 4.4. Payment Procedures.............................................................................20
Section 4.5. Tax Returns and Reports........................................................................20
Section 4.6. Payments under Indenture or Pursuant to Direct Actions.........................................20
ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 5.1. Initial Ownership..............................................................................21
Section 5.2. The Trust Securities Certificates..............................................................21
Section 5.3. Execution and Delivery of Trust Securities Certificates........................................21
Section 5.4. Book-Entry Preferred Securities................................................................22
Section 5.5. Registration of Transfer and Exchange of Preferred Securities Certificates.....................23
Section 5.6. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates.............................24
Section 5.7. Persons Deemed Holders.........................................................................25
</TABLE>
<PAGE> 4
<TABLE>
<S> <C>
Section 5.8. Access to List of Holders' Names and Addresses................................................25
Section 5.9. Maintenance of Office or Agency...............................................................25
Section 5.10. Appointment of Paying Agent...................................................................25
Section 5.11. Ownership of Common Securities by Depositor...................................................26
Section 5.12. Notices to Clearing Agency....................................................................26
Section 5.13. Rights of Holders.............................................................................26
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
Section 6.1. Limitations on Voting Rights..................................................................28
Section 6.2. Notice of Meetings............................................................................29
Section 6.3. Meetings of the Holders of Preferred Securities...............................................30
Section 6.4. Voting Rights.................................................................................30
Section 6.5. Proxies, etc..................................................................................30
Section 6.6. Holder Action by Written Consent..............................................................30
Section 6.7. Record Date for Voting and Other Purposes.....................................................31
Section 6.8. Acts of Holders...............................................................................31
Section 6.9. Inspection of Records.........................................................................32
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.1. Representations and Warranties of the Issuer Trustees.........................................32
Section 7.2. Representations and Warranties of Depositor...................................................33
ARTICLE VIII
THE ISSUER TRUSTEES; THE ADMINISTRATORS
Section 8.1. Certain Duties and Responsibilities...........................................................34
Section 8.2. Certain Notices...............................................................................36
Section 8.3. Certain Rights of Property Trustee............................................................36
Section 8.4. Not Responsible for Recitals or Issuance of Securities........................................38
Section 8.5. May Hold Securities...........................................................................39
Section 8.6. Compensation; Indemnity; Fees.................................................................39
Section 8.7. Corporate Property Trustee Required; Eligibility of Issuer Trustees and Administrators........40
Section 8.8. Conflicting Interests.........................................................................40
Section 8.9. Co-Trustees and Separate Trustee..............................................................41
Section 8.10. Resignation and Removal of Issuer Trustees, Appointment of Successor..........................42
Section 8.11. Acceptance of Appointment by Successor........................................................43
Section 8.12. Merger, Conversion, Consolidation or Succession to Business...................................44
Section 8.13. Preferential Collection of Claims Against Depositor or Trust..................................44
Section 8.14. Reports by the Property Trustee...............................................................44
Section 8.15. Reports to the Property Trustee...............................................................44
Section 8.16. Evidence of Compliance with Conditions Precedent..............................................44
</TABLE>
ii
<PAGE> 5
<TABLE>
<S> <C>
Section 8.17. Number of Issuer Trustees.....................................................................45
Section 8.18. Delegation of Power by Administrators.........................................................45
Section 8.19. Appointment and Removal of Administrators.....................................................45
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
Section 9.1. Termination Upon Expiration Date...............................................................46
Section 9.2. Early Termination..............................................................................46
Section 9.3. Termination....................................................................................46
Section 9.4. Liquidation....................................................................................47
Section 9.5. Mergers, Consolidations, Conversions, Amalgamations or Replacements of the Trust...............48
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1. Limitation of Rights of Holders...............................................................49
Section 10.2. Amendment.....................................................................................49
Section 10.3. Separability..................................................................................50
Section 10.4. Governing Law.................................................................................50
Section 10.5. Payments Due on Non-Business Day..............................................................51
Section 10.6. Successors....................................................................................51
Section 10.7. Headings......................................................................................51
Section 10.8. Reports, Notices and Demands..................................................................52
Section 10.9. Agreement Not to Petition.....................................................................52
Section 10.10.Trust Indenture Act; Conflict with Trust Indenture Act........................................52
Section 10.11.Acceptance of Terms of Trust Agreement, Guarantee and Indenture...............................53
</TABLE>
iii
<PAGE> 6
AMENDED AND RESTATED TRUST AGREEMENT, dated as of , 1999,
among (i) Old National Bancorp, a multi-bank holding company organized under
the laws of the State of Indiana (including any successors or assigns, the
"Depositor"), (ii) Bank One Trust Company, NA, a national banking association
organized under the laws of the United States, as property trustee (the
"Property Trustee" and, in its separate corporate capacity and not in its
capacity as Property Trustee, the "Bank"), (iii) Bank One Delaware, Inc., a
Delaware corporation, as Delaware trustee (the "Delaware Trustee") (the
Property Trustee and the Delaware Trustee referred to collectively as the
"Issuer Trustees") and (iv) the several Holders, as hereinafter defined.
W I T N E S S E T H:
WHEREAS, the Depositor and the Delaware Trustee have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by entering into a Trust Agreement, dated as of , 1999 (the
"Original Trust Agreement"), and by the execution and filing with the Secretary
of State of the State of Delaware of the Certificate of Trust, filed on ,
1999, attached as Exhibit A; and
WHEREAS, the Depositor and the Issuer Trustees desire to amend and
restate the Original Trust Agreement in its entirety as set forth herein to
provide for, among other things, (i) the issuance of the Common Securities by
the Trust to the Depositor, (ii) the issuance and sale of the Preferred
Securities by the Trust pursuant to the Underwriting Agreement, (iii) the
acquisition by the Trust from the Depositor of all of the right, title and
interest in the Debentures and (iv) the appointment of the Administrators;
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other parties
and for the benefit of the Holders, hereby amends and restates the Original
Trust Agreement in its entirety and agrees as follows:
ARTICLE I
DEFINED TERMS
Section 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States generally
accepted accounting principles;
<PAGE> 7
(d) 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
(e) 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 Amounts" has the meaning specified in Section 10.6 of the
Indenture.
"Additional Interest" means, with respect to Trust Securities of a
given Liquidation Amount or a given period, the amount of Additional Interest
(as defined in the Indenture) paid by the Depositor on a Like Amount of
Debentures for such period.
"Administrator" means each Person appointed in accordance with Section
8.19 solely in such Person's capacity as Administrator of the Trust created and
continued hereunder and not in such Person's individual capacity, or such
Administrator's successor in interest in such capacity, or any successor
administrator appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Book-Entry Preferred Security, the rules and procedures
of the Clearing Agency for such Book-Entry Preferred Security, in each case to
the extent applicable to such transaction and as in effect from time to time.
"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 judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of such Person or of any substantial part of
its property or ordering the winding up or liquidation of its affairs,
and the continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days; or
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<PAGE> 8
(b) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the filing
of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or similar official) of such Person or
of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due
and its willingness to be adjudicated a bankrupt, or the taking of
corporate action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Book-Entry Preferred Securities Certificates" means a Preferred
Security, the ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 5.4.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
day on which banking institutions in The City of New York are authorized or
required by law to remain closed, or (c) a day on which the Property Trustee's
Corporate Trust Office or the corporate trust office of the Indenture Trustee is
closed for business.
"Certificate Depository Agreement" means the agreement among the Trust,
the Depositor and The Depository Trust Company, as the initial Clearing Agency,
dated as of the Closing Date, substantially in the form attached as Exhibit B,
as the same may be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" has the meaning specified in the Underwriting Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this 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 Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
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<PAGE> 9
"Common Security" means an undivided beneficial ownership interest in
the assets of the Trust, having a Liquidation Amount of $ and having the
rights provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Corporate Trust Office" means the principal office of the Property
Trustee.
"Debenture Event of Default" means an event of default under 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.
"Debentures" means the aggregate principal amount of the Depositor's
% Junior Subordinated Debentures issued pursuant to the Indenture.
"Definitive Preferred Securities Certificates" means either or both (as
the context requires) of (a) Preferred Securities Certificates issued as Global
Preferred Securities as provided in Section 5.4(c) and (b) Preferred Securities
Certificates issued in certificated, fully registered form as provided in
Section 5.4 and 5.5.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. Section 3801, et seq., as it may be amended from time
to time.
"Delaware Trustee" means the Person identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Trust created and continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor Delaware trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"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 an Event of Default with respect to a
Debenture; 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
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<PAGE> 10
(d) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Issuer Trustees in this
Trust Agreement (other than a covenant or warranty a default in the
performance or breach of which is dealt with in clause (b) or (c)
above) and continuation of such default or breach for a period of 90
days after there has been given, by registered or certified mail, to
the defaulting Issuer Trustee or Trustees by the Holders of at least
25% in aggregate liquidation preference 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.
"Expiration Date" has the meaning specified in Section 9.1.
"Global Preferred Security" means a Preferred Securities Certificate
evidencing ownership of Book-Entry Preferred Securities.
"Guarantee" means the Guarantee Agreement dated as of , 1999
between the Depositor and Bank One Trust Company, NA, as guarantee trustee, for
the benefit of the Holders of the Trust Securities, as amended from time to
time.
"Holder" means a Person in whose name a Trust Security or Trust
Securities is registered in the Securities Register, any such Person being a
beneficial owner within the meaning of the Delaware Business Trust Act.
"Indenture" means the Indenture, dated as of , 1999, between
the Depositor and the Indenture Trustee relating to the Debentures, as amended
or supplemented from time to time.
"Indenture Trustee" means Bank One Trust Company, NA, as trustee under
the Indenture and any successor thereto.
"Interest Payment Deferral Period" shall have the meaning specified in
Section 4.1.
"Issuer Trustees" has the meaning specified in the preamble to this
Trust Agreement.
"Investment Company Event" means the receipt by the Trust of an Opinion
of Counsel experienced in such matters to the effect that, as a result of the
occurrence of a change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority that becomes or would become effective on or
after the date of original issuance of the Preferred Securities, there is more
than an insubstantial risk that the Trust is or will be considered an
"investment company" that is required to be registered under the 1940 Act.
"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.
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<PAGE> 11
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Debentures to be contemporaneously redeemed in accordance with the
Indenture, allocated to the Common Securities and the Preferred Securities based
upon the relative Liquidation Amounts of such classes and the proceeds of which
will be used to pay the Redemption Price of such Trust Securities, (b) with
respect to a distribution of Debentures to Holders of Trust Securities in
connection with a dissolution 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 and (c) with respect to any
distribution of any Additional Interest to Holders of Trust Securities,
Debentures having a principal amount equal to the Liquidation Amount of the
Trust Securities in respect of which such Distribution is made.
"Liquidation Amount" means the stated amount (expressed in U.S.
Dollars) per Trust Security.
"Liquidation Date" means the date on which Debentures are to be
distributed to Holders of Trust Securities in connection with a termination and
liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Ministerial Action" means the taking of an action, such as filing a
form or making an election, or pursuing some other similar reasonable measure
that will have no adverse effect on the Trust, the Depositor or the Holders of
the Trust Securities and will involve no material cost.
"1940 Act" means the Investment Company Act of 1940, as amended.
"Officer" means the Chairman of the Board, the President, any Senior
Vice President, any Vice President, the Treasurer or any Assistant Treasurer,
the Secretary or any Assistant Secretary of the Depositor.
"Officers' Certificate" means a certificate signed by two Officers of
the Depositor and delivered to the appropriate Issuer 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
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<PAGE> 12
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Depositor, and who shall be
reasonably acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding," when used with respect to Trust Securities, means, as of
the date of determination, all Preferred Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Trust Securities theretofore cancelled by the Property
Trustee or delivered to the Property Trustee for cancellation;
(b) Trust 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 Trust Securities;
provided, that, if such Trust Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Trust Agreement;
and
(c) Trust Securities which have been paid or in exchange for
or in lieu of which other Trust Securities have been executed and
delivered pursuant to Article V;
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 Issuer Trustee, any
Administrator or any Affiliate of the Depositor, any Issuer Trustee or any
Administrator shall be disregarded and deemed not to be Outstanding, except that
(a) in determining whether any Issuer Trustee or Administrator shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Preferred Securities that such Issuer Trustee or
Administrator, as the case may be, 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 Issuer
Trustees, one or more of the Administrators 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 Administrators
the pledgee's right so to act with respect to such Preferred Securities and that
the pledgee is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book-Entry
Preferred Security as reflected in the records of the Clearing Agency or, if a
Clearing Agency Participant is not the Owner, then as reflected in the records
of a Person maintaining an account with such Clearing Agency (directly or
indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.10 and shall initially be the Bank.
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<PAGE> 13
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee in its trust department for the
benefit of the Holders in which all amounts paid in respect of the Debentures
will be held and from which the Property Trustee shall make payments to the
Holders 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 Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as Exhibit
D.
"Preferred Security" means an undivided beneficial ownership interest
in the assets of the Trust, having a Liquidation Amount of $ and having the
rights provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust Agreement,
solely in its capacity as Property Trustee of the Trust heretofore created and
continued hereunder and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee appointed as herein
provided.
"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 but unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Debentures, allocated on a pro rata basis (based on Liquidation Amounts) among
the Trust Securities.
"Regulatory Capital Event" means the receipt by the Trust of an Opinion
of Counsel experienced in such matters, who may be an employee of the Depositor
or any Affiliates of the Depositor, that, as a result of: (i) any amendment to,
clarification of or change in applicable laws or regulations or official
interpretations thereof or policies with respect thereto, or (ii) any official
administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, there is more than an insubstantial risk that the Preferred
Securities will not longer constitute Tier I Capital of the Depositor or any
bank holding company of which the Depositor is a subsidiary for purposes of the
capital adequacy guidelines or policies of the Board of Governors of the Federal
Reserve System or its successor as the Depositor's primary federal banking
regulator.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
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<PAGE> 14
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
"Series" means a series of securities or the securities of the series
issued under the Indenture.
"Special Event" means any of a Tax Event, an Investment Company Event
or a Regulatory Capital Event.
"Tax Event" means the receipt by the Trust of an Opinion of Counsel
experienced in such matters to the effect that, as a result of (a) any amendment
to or change (including any announced prospective change) in the laws or any
regulations thereunder of the United States or any political subdivision or
taxing authority thereof or therein, or (b) any judicial decision or any
official administrative pronouncement (including any private letter ruling,
technical advice, memorandum or field service advice) or regulatory procedure
(an "Administrative Action"), regardless of whether such judicial decision or
Administrative Action is issued to or in connection with a proceeding involving
the Depositor or the Trust and whether or not subject to review or appeal, which
amendment, change, Administrative Action or decision is enacted, promulgated or
announced, in each case, on or after the date hereof, there is more than an
insubstantial risk that (i) the Trust is, or will be within 90 days of the date
of such opinion, subject to United States federal income tax with respect to
income received or accrued on the Debentures, (ii) interest payable by the
Depositor or original issue discount accruing on the Debentures is not, or
within 90 days of the date of such opinion, will not be deductible by the
Depositor , in whole or in part, for United States federal income tax purposes,
or (iii) the Trust is, or will be within 90 days of the date of such opinion,
subject to more than a de minimus amount of other taxes, duties or other
governmental charges.
"Time of Delivery" has the meaning specified in the Underwriting
Agreement.
"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 Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including all exhibits hereto, including, for all
purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment or
supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" means (a) the 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 terms of this Trust
Agreement.
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<PAGE> 15
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
, 1999, among the Trust, the Depositor and the underwriters named
therein.
ARTICLE II
ESTABLISHMENT OF THE TRUST
Section 2.1. Name
The Trust continued hereby shall be known as "ONB CAPITAL TRUST ",
as such name may be modified from time to time by the Administrators following
written notice to the Holders of Trust Securities and the Issuer Trustees, in
which name the Administrators and the Issuer Trustees may conduct the business
of the Trust, make and execute contracts and other instruments on behalf of the
Trust and sue and be sued.
Section 2.2. Office of the Delaware Trustee; Principal Place of
Business of the Trust.
The address of the Delaware Trustee in the State of Delaware is Three
Christiana Center 201 North Walnut Street, Wilmington, DE 19801, Attention:
Legal Dept./First USA, or such other address in the State of Delaware as the
Delaware Trustee may designate by written notice to the Holders and the
Depositor. The principal executive office of the Trust is c/o Old National
Bancorp, 420 Main Street, Evansville, Indiana 47708.
Section 2.3. Initial Contribution of Trust Property;
Organizational Expenses.
The Property Trustee acknowledges receipt 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 Issuer
Trustee, promptly reimburse such Issuer Trustee for any such expenses paid by
such Issuer Trustee. The Depositor shall make no claim upon the Trust Property
for the payment of such expenses.
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<PAGE> 16
Section 2.4. Issuance of the Preferred Securities.
On , 1999, the Depositor, on its own behalf and 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 Administrator, on behalf of the Trust, shall execute in
accordance with Section 5.2 and the Property Trustee shall deliver to the
Underwriters named in the Underwriting Agreement, Preferred Securities
Certificates, registered in the name of the nominee of the initial Clearing
Agency, representing Preferred Securities having an aggregate
Liquidation Amount of $ , against receipt of such aggregate purchase
price of such Preferred Securities of $ , by the Property Trustee.
Section 2.5. Issuance of the Common Securities; Subscription and
Purchase of Debentures.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrator, 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, representing Common Securities
having an aggregate Liquidation Amount of $ against payment by the
Depositor of such amount. Contemporaneously therewith, an Administrator, 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 $ , 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 $ .
Section 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 necessary, convenient or
incidental thereto. The Depositor hereby appoints the Issuer Trustees as
trustees of the Trust, to have all the rights, powers and duties to the extent
set forth herein, and the Issuer Trustees hereby accept such appointment. The
Property Trustee hereby declares that it will hold the Trust Property upon and
subject to the conditions set forth herein for the benefit of the Trust and the
Holders. The Administrators shall have only those ministerial duties set forth
herein with respect to accomplishing the purposes of the Trust and shall not be
trustees or fiduciaries with respect to the Trust or the Holders. The Property
Trustee shall have the right and power to perform those duties assigned to the
Administrators. 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 Administrators set forth
herein, except as required by the Delaware Business Trust Act. 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(a) of the Delaware
Business Trust Act.
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Section 2.7. Authorization to Enter into Certain Transactions.
(a) The Issuer Trustees and the Administrators shall conduct the
affairs of the Trust in accordance with the terms of this Trust Agreement.
Subject to the limitations set forth in paragraph (b) of this Section and
Article VIII, and in accordance with the following provisions (i) and (ii), the
Issuer Trustees and the Administrators shall have the authority to enter into
all transactions and agreements determined by the Issuer Trustees or the
Administrators to be appropriate in exercising the authority granted to the
Issuer Trustees or the Administrators, as the case may be, under this Trust
Agreement, and to perform all acts in furtherance thereof, including without
limitation, the following:
(i) Each Administrator shall have the power and authority to
act on behalf of the Trust with respect to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to acquire the Debentures with the proceeds of
the sale of the Trust Securities; provided, however,
that the Administrators shall cause legal title to
the Debentures to be held of record in the name of
the Property Trustee for the benefit of the Holders
of the Trust Securities;
(C) execution of the Trust Securities on behalf of
the Trust in accordance with this Trust Agreement;
(D) the negotiation of the terms, and execution and
delivery, for and on behalf of the Trust, of the
Underwriting Agreement providing for the sale of the
Preferred Securities;
(E) to cause the Trust to enter into, and to
execute, deliver and perform on behalf of the Trust,
the Certificate Depository Agreement and such other
agreements as may be necessary or desirable in
connection with the purposes and function of the
Trust;
(F) 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;
(G) assisting in the listing of the Preferred
Securities upon such securities exchange or exchanges
as shall be determined by the Depositor and the
registration of the Preferred Securities under the
Securities Exchange Act of 1934, as amended, and the
preparation and filing of all periodic and other
reports and other documents pursuant to the
foregoing;
(H) assisting in the sending of notices (other than
notices of default) and other information regarding
the Trust Securities and the Debentures to the
Holders in accordance with this Trust Agreement;
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(I) the appointment of a Paying Agent,
authenticating agent and Securities Registrar in
accordance with this Trust Agreement;
(J) unless otherwise determined by the Property
Trustee or the Holders of at least a majority in
Liquidation Amount of the Preferred Securities or as
otherwise required by the Delaware Business Trust Act
or the Trust Indenture Act, to execute on behalf of
the Trust (either acting alone or together with any
or all of the Administrators) any documents that the
Administrators have the power to execute pursuant to
this Trust Agreement; and
(K) the taking of any action incidental to the
foregoing as the Issuer Trustees may from time to
time determine is necessary or advisable to give
effect to the terms of this Trust Agreement.
(ii) 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;
(D) the distribution of amounts owed to the Holders
in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and
privileges of a holder of the Debentures;
(F) the sending of notices of default and other
information regarding the Trust Securities and the Debentures
to the Holders 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
and the preparation, execution and filing of the certificate
of cancellation with the Secretary of State of the State of
Delaware;
(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 Holders
(without consideration of the effect of any such action on any
particular Holder); and
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(J) to engage in such Ministerial Activities as shall
be necessary, appropriate, convenient or incidental to effect
the repayment of the Preferred Securities and the Common
Securities to the extent the Debentures mature or are
redeemed.
(iii) The Property Trustee shall have the power and authority to
act on behalf of the Trust with respect to any of the duties,
liabilities, powers or authority of the Administrators set forth in
Section 2.7(a)(i)(H),(I) and (K), herein but shall not have a duty to
do any such act unless specifically requested to do so in writing by
the Depositor, and shall then be fully protected in acting pursuant to
such written request; and in the event of a conflict between the
action of the Administrators and the action of the Property Trustee,
the action of the Property Trustee shall prevail.
(b) So long as this Trust Agreement remains in effect, the Trust (or
the Issuer Trustees or Administrators acting on behalf of the Trust) shall not
undertake any business, activities or transaction except as expressly provided
herein or contemplated hereby. In particular, neither the Issuer Trustees nor
the Administrators shall cause the Trust to (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 Holders, 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) take or consent to any action that would cause the Debentures
to be treated as other than indebtedness of the Corporation for United States
federal income tax purposes, (v) incur any indebtedness for borrowed money or
issue any other debt or (vi) take or consent to any action that would result in
the placement of a Lien on any of the Trust Property. The Administrators shall
defend all claims and demands of all Persons at any time claiming any Lien on
any of the Trust Property adverse to the interest of the Trust or the Holders in
their capacity as Holders.
(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, including any amendments thereto, and the taking of any
action necessary or desirable to sell the Preferred Securities in a
transaction or series of transactions pursuant 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 the determination of any and all such acts,
other than actions which must be taken by or on behalf of the Trust,
and the advice to the Issuer Trustees of actions they must take on
behalf of the Trust, and the preparation for execution and filing of
any documents to be executed and filed by the Trust or on behalf of the
Trust, as the Depositor deems necessary or advisable in order to comply
with the applicable laws of any such States in connection with the sale
of the Preferred Securities;
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(iii) the preparation for filing by the Trust and execution on
behalf of the Trust of an application to the New York Stock Exchange or
any other national stock exchange or the Nasdaq National Market for
listing upon notice of issuance of any Preferred Securities;
(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 Securities Exchange Act
of 1934, as amended, including any amendments thereto;
(v) the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for the sale of the
Preferred Securities; and
(vi) the taking of any other actions deemed by the Depositor
necessary or desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators
and the Issuer Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not be deemed to be an
"investment company" required to be registered under the 1940 Act, or taxed as a
corporation for United States Federal income tax purposes and so that the
Debentures will be treated as indebtedness of the Depositor for United States
Federal income tax purposes. In this connection, each Administrator, the
Property Trustee or the Holders of at least a majority in Liquidation Amount of
the Common Securities are authorized to take any action, not inconsistent with
applicable law, the Certificate of Trust or this Trust Agreement, that such
Administrator, the Property Trustee or such Holders of Common Securities
determine in their discretion to be necessary or desirable for such purposes, as
long as such action does not adversely affect in any material respect the
interests of the Holders of the Outstanding Preferred Securities. In no event
shall the Administrator take any action pursuant to the preceding sentence or
any other provision herein that would constitute discretionary control over the
assets of the Trust for purposes of ss. 3(21) of ERISA. In no event shall the
Administrators or the Issuer Trustees be liable to the Trust or the Holders for
any failure to comply with this section that results from a change in law or
regulation or in the interpretation thereof.
Section 2.8. Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
Section 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 Trust and the Holders in accordance
with this Trust Agreement.
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ARTICLE III
PAYMENT ACCOUNT
Section 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 in 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 Holders 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.
ARTICLE IV
CERTAIN TERMS OF THE TRUST SECURITIES
Section 4.1. Distributions.
The term "Distributions" as used in this Trust Agreement includes such
cash distributions and any such accumulated amounts, including Additional
Interest and Additional Amounts, that are payable unless otherwise stated.
(a) The Trust Securities represent undivided beneficial ownership
interests in the Trust Property, and, as a practical matter, the Distributions
on the Preferred Securities shall be payable at the rates and on the dates that
payments of interest are made on the Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative,
and will accumulate whether or not there are funds of the Trust
available for the payment of Distributions. Distributions shall accrue
from , and shall be payable [quarterly] [semi-annually] in
arrears on , , and of
each year, commencing on , , except as provided below.
If any date on which a Distribution is otherwise payable on the Trust
Securities is not a Business Day, then the payment of such Distribution
shall be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay)
except that, if such Business Day is in the next succeeding calendar
year, payment of such Distribution shall be made on the immediately
preceding Business Day, in each case with the same force and effect as
if made on such date (each date on which distributions are payable in
accordance with this Section 4.1(a), a "Distribution Date").
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(ii) The Depositor has the right under the Indenture to defer
payments of interest by extending the interest payment period from time
to time on the Debentures for a period not extending, in the aggregate,
beyond the maturity date of the Debentures (each, an "Interest Payment
Deferral Period"). During such Interest Payment Deferral Period, no
interest shall be due and payable on the Debentures. As a consequence
of such deferral, Distributions on the Preferred Securities will also
be deferred. Despite such deferral, [quarterly] [semi-annual]
Distributions will accrue Additional Interest (to the extent permitted
by applicable law).
(iii) Distributions in arrears for more than one [quarter]
[semi-annual period] will accumulate and compound at a rate of %
per annum of the Liquidation Amount of the Trust Securities. The amount
of Distributions payable for any period less than a full period shall
be computed on the basis of a 360-day year of twelve 30-day months.
Distributions payable for each full Distribution period will be
computed by dividing the rate per annum by [four] [two].
(iv) Distributions on the Trust Securities shall be made by
the Property Trustee from the Payment Account and shall be payable on
each Distribution Date only to the extent that the Trust has funds then
on hand and available in the Payment Account for the payment of such
Distributions.
(b) 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
with respect to Book-Entry Preferred Securities shall be one Business Day prior
to the relevant Redemption Date, and, with respect to Preferred Securities not
in book-entry-only form, the date 15 days prior to the relevant Redemption Date
or, in the case of an Interest Payment Deferral Period as described in subclause
(a)(ii) above, on the first record date after the end of the Interest Payment
Deferral Period.
Section 4.2. Redemption.
(a) On each Debenture Redemption Date and on the stated maturity of the
Debentures, the Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number(s) of the Preferred Securities
affected;
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(iv) if less than all the Outstanding Trust Securities are to
be redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed and
that distributions thereon will cease to accrue on and after said date;
and
(vi) the place where the 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 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 Trust Securities, then, by 12:00 noon, New York City time, on the Redemption
Date, subject to Section 4.2(c), the Property Trustee will, with respect to
Book-Entry Preferred Securities, irrevocably deposit with the Clearing Agency
for such Book-Entry Preferred Securities, to the extent available, funds
sufficient to pay the applicable Redemption Price and will give such Clearing
Agency irrevocable instructions and authority to pay the Redemption Price to the
Holders thereof. If the Preferred Securities are not in book-entry-only form,
the Property Trustee, subject to Section 4.2(c), will irrevocably deposit with
the Paying Agent, to the extent available, funds sufficient to pay the
applicable Redemption Price and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price to the Holders thereof
upon surrender of their 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 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
immediately prior to the close of business on the date of such deposit, all
rights of Holders holding Trust Securities so called for redemption will cease,
except the right of such Holders to receive the Redemption Price and any
Distribution payable on or prior to the Redemption Date, but without interest,
and such Securities will cease to be outstanding. In the event that any date on
which any Redemption Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding Business Day, in
each case, with the same force and effect as if made on such date. In the event
that payment of the Redemption Price in respect of any Trust Securities called
for redemption is improperly withheld or refused and not paid either by the
Trust or by the Depositor pursuant to the Guarantee, Distributions on such Trust
Securities will continue to accrue, at the then applicable rate, from the
Redemption Date originally established by the Trust for such Trust Securities to
the date such Redemption Price is actually paid, in which case the actual
payment date will be the date fixed for redemption for purposes of calculating
the Redemption Price.
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(e) Payment of the Redemption Price on the Trust Securities shall be
made to the recordholders thereof as they appear on the Securities Register for
the Trust Securities on the relevant record date, which with respect to
Book-Entry Preferred Securities shall be one Business Day prior to the relevant
Redemption Date, and, with respect to Preferred Securities not in
book-entry-only form, 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
the Preferred Securities. The particular Preferred Securities to be redeemed
shall be selected on a pro rata basis (based upon Liquidation Amounts) not more
than 60 days prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for redemption. The
Property Trustee shall promptly notify the Security 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
that has been or is to be redeemed.
(g) Subject to obtaining any required regulatory approval, if, at any
time, a Tax Event, an Investment Company Event or a Regulatory Capital Event
shall occur and be continuing, the Depositor shall have the right, upon not less
than 30 nor more than 60 days' notice, to redeem the Debentures, in whole or in
part, for cash within 90 days following the occurrence of such Special Event,
and, following such redemption, a Like Amount of Preferred Securities shall be
redeemed by the Trust at the Redemption Price on a pro rata basis; provided,
however, that if at the time there is available to the Depositor or the Trust
the opportunity to eliminate, within such 90-day period, the Special Event by
taking some ministerial action, such as filing a form or making an election or
pursuing some other similar reasonable measure that will have no adverse effect
on the Trust, the Depositor or the Holders of the Securities, then the Depositor
or the Trust will pursue such measure in lieu of redemption.
Section 4.3. Subordination of Common Securities.
(a) Payment of Distributions on, the Redemption Price of, and the
Liquidation Distribution in respect 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 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 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, shall
have been made or provided for, and all funds immediately available to the
Property Trustee shall first be
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applied to the payment in full in cash of all Distributions on, or the
Redemption Price of, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting
from any Debenture Event of Default, the Holder of Common Securities will be
deemed to have waived any right to act with respect to any such Event of Default
under this Trust Agreement until the effect of all such Events of Default with
respect to the Preferred Securities have been cured, waived or otherwise
eliminated. Until any such Event of Default under this Trust Agreement with
respect to the Preferred Securities has 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 will have the right to direct the
Property Trustee to act on their behalf.
Section 4.4. Payment Procedures.
Payments 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 shall credit the relevant Persons' accounts
at such Clearing Agency on the applicable distribution dates. Payments in
respect of the Common Securities shall be made in such manner as shall be
mutually agreed between the Property Trustee and the Holder of the Common
Securities.
Section 4.5. Tax Returns and Reports.
The Administrators 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 Administrators shall (a) prepare and file (or cause
to be prepared and filed) the appropriate Internal Revenue Service form required
to be filed in respect of the Trust in each taxable year of the Trust and (b)
prepare and furnish (or cause to be prepared and furnished) to each Holder the
appropriate Internal Revenue Service form required to be provided or the
information required to be provided on such form. The Administrators shall
provide the Depositor and the Property Trustee with a copy of all such returns
and reports promptly after such filing or furnishing. The Trust and the
Administrators shall comply with United States Federal withholding and backup
withholding tax laws and information reporting requirements with respect to any
payments to Holders under the Trust Securities.
Section 4.6. Payments under Indenture or Pursuant to Direct
Actions.
Any amount payable hereunder to any Holder of Preferred Securities (and
any Owner with respect thereto) shall be reduced by the amount of any
corresponding payment such Holder (and Owner) has directly received pursuant to
Section 5.8 of the Indenture or Section 5.13 of this Trust Agreement.
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ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 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.
Section 5.2. The Trust Securities Certificates.
(a) The Preferred Securities Certificates shall be issued in minimum
denominations of $ Liquidation Amount and integral multiples of $ in
excess thereof, and the Common Securities Certificates shall be issued in
denominations of $ Liquidation Amount and integral multiples of $ in
excess thereof. The Trust Securities Certificates shall be executed on behalf of
the Trust by manual signature of at least one Administrator. Trust Securities
Certificates bearing the manual signatures of individuals who were, at the time
when such signatures shall have been affixed, authorized to sign on behalf of
the Trust, shall be validly issued and entitled to the benefits of this Trust
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
become a Holder, and shall be entitled to the rights and subject to the
obligations of a Holder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Sections 5.4, 5.5
and 5.11.
(b) Upon their original issuance, Preferred Securities Certificates
shall be issued in the form of one or more Global Preferred Securities
registered in the name of The Depository Trust Company, as Clearing Agency, or
its nominee and deposited with The Depository Trust Company or a custodian for
The Depository Trust Company for credit by The Depository Trust Company to the
respective accounts of the Owners thereof (or such other accounts as they may
direct).
(c) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
Section 5.3. Execution and Delivery of Trust Securities Certificates.
At each Closing Date, the Administrators 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 and delivered to or upon the written
order of the Depositor, signed by an authorized Officer thereof, without further
corporate action by the Depositor, in authorized denominations.
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Section 5.4. Book-Entry Preferred Securities.
(a) Each Global Preferred Security issued under this Agreement shall be
registered in the name of the Clearing Agency or a nominee thereof and delivered
to such Clearing Agency or a nominee thereof or custodian therefor, and each
such Global Preferred Security shall constitute a single Preferred Securities
Certificate for all purposes of this Agreement.
(b) Notwithstanding any other provision in this Trust Agreement, no
Global Preferred Security may be exchanged in whole or in part for Preferred
Securities Certificates registered, and no transfer of a Global Preferred
Security in whole or in part may be registered, in the name of any Person other
than the Clearing Agency for such Global Preferred Security or a nominee thereof
unless (i) the Clearing Agency advises the Property Trustee in writing that the
Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to the Global Preferred Security, and the Property
Trustee is unable to locate a qualified successor, (ii) the Trust at its option
advises the Depositary in writing that it elects to terminate the book-entry
system through the Clearing Agency, or (iii) a Debenture Event of Default has
occurred and is continuing. Upon the occurrence of any event specified in clause
(i), (ii) or (iii) above, the Administrators shall notify the Clearing Agency
and instruct the Clearing Agency to notify all Owners of Book-Entry Preferred
Securities, the Delaware Trustee and the Administrators of the occurrence of
such event and of the availability of the Definitive Preferred Securities
Certificates to Owners of the Preferred Securities requesting the same.
(c) If any Global Preferred Security is to be exchanged for other
Preferred Securities Certificates or canceled in part, or if any other Preferred
Securities Certificate is to be exchanged in whole or in part for Book-Entry
Preferred Securities represented by 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 aggregate Liquidation
Amount represented by such Global Preferred Security shall be reduced, subject
to Section 5.2, or increased by an amount equal to the Liquidation Amount
represented by that portion of the Global Preferred Security to be so exchanged
or canceled, or equal to the Liquidation Amount represented by such other
Preferred Securities Certificates to be so exchanged for Book-Entry Preferred
Securities represented thereby, 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 Applicable Procedures, shall instruct
the Clearing Agency or its authorized representative to make a corresponding
adjustment to its records. Upon surrender to the Administrators or the
Securities Registrar of the Global Preferred Security or Securities by the
Clearing Agency, accompanied by registration instructions, the Administrators,
or any one of them, shall execute the Definitive Preferred Securities
Certificates in accordance with the instructions of the Clearing Agency. None of
the Securities Registrar, the Issuer Trustees or the Administrators shall 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. Upon the
issuance of Definitive Preferred Securities Certificates, the Issuer Trustees
and Administrators shall recognize the Holders of the Definitive Preferred
Securities Certificates as Holders. The Definitive Preferred Securities
Certificates shall be printed, lithographed or engraved or may be produced in
any other manner as is reasonably acceptable to the Administrators, as evidenced
by the execution thereof by the Administrators or any one of them.
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(d) Every Preferred Securities Certificate executed and delivered upon
registration or 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
Article IV or otherwise, shall be executed and delivered in the form of, and
shall be, a Global Preferred Security, unless such Preferred Securities
Certificate 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 registered owner of a Global
Preferred Security, shall be the Holder of such Global Preferred Security for
all purposes under this Agreement and the Global Preferred Security, and Owners
with respect to a Global Preferred Security shall hold such interests pursuant
to the Applicable Procedures. The Securities Registrar and the Property Trustee
shall be entitled to deal with the Clearing Agency for all purposes of this
Trust Agreement relating to the Global Preferred Securities (including the
payment of the Liquidation Amount of and Distributions or directions by Owners
of Book-Entry Preferred Securities represented thereby) as the sole Holder of
the Book-Entry Preferred Securities represented thereby and shall have no
obligations to the Owners thereof. Neither of the Property Trustee nor the
Securities Registrar shall have any liability in respect of any transfers
effected by the Clearing Agency.
The rights of the Owners of the Book-Entry Preferred Securities shall
be exercised only through the Clearing Agency and shall be limited to those
established by law, the Applicable Procedures and agreements between such Owners
and the Clearing Agency and/or the Clearing Agency Participants; provided, that,
solely for the purpose of determining whether the Holders of the requisite
amount of Preferred Securities have voted on any matter provided for in this
Trust Agreement, so long as Definitive Preferred Security Certificates have not
been issued, the Issuer Trustees may conclusively rely on, and shall be fully
protected in relying on, any written instrument (including a proxy) delivered to
the Property Trustee by the Clearing Agency setting forth the Owners' votes or
assigning the right to vote on any matter to any other Persons either in whole
or in part. Pursuant to the Certificate Depository Agreement, unless and until
Definitive Preferred Securities Certificates are issued pursuant to Section
5.4(b), the initial Clearing Agency will make book-entry transfers among the
Clearing Agency Participants and receive and transmit payments on the Preferred
Securities to such Clearing Agency Participants, and none of the Depositor, the
Administrators or the Issuer Trustees shall have nay responsibility or
obligation with respect thereto.
Section 5.5. Registration of Transfer and Exchange of Preferred
Securities Certificates.
(a) The Property Trustee shall keep or cause to be kept, at its
Corporate Trust Office, a register or registers for the purpose of registering
Trust Securities Certificates and transfers and exchanges of Preferred
Securities Certificates (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 5.11 in the case of the Common Securities Certificates) and
registration of transfers and exchanges of Preferred Securities Certificates as
herein provided. The Property Trustee is hereby appointed Securities Registrar
for the purpose of registering Preferred Securities Certificates and (subject to
Section 5.11) Common Securities Certificates and transfers and exchanges thereof
as provided therein.
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Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 5.9, the
Administrators or any one of them shall execute and deliver to the Property
Trustee, and the Property Trustee shall 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 Administrator.
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 Corporate Trust Office.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the 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 cancelled and subsequently disposed of by the Property Trustee
in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Trust 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.
(b) Notwithstanding any other provision of this Agreement, transfers
and exchanges of Preferred Securities Certificates and beneficial interests in a
Global Preferred Security of the kinds specified in this Section 5.5(b) shall be
made only in accordance with this Section 5.5(b).
Section 5.6. 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, lose or theft of any Trust
Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrators 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 bona fide purchaser,
the Administrators, or any one of them, on behalf of the Trust, shall execute
and make available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities Certificate, a new Trust
Securities Certificate of like class, tenor and denomination. In connection with
the issuance of any new Trust Securities Certificate under this Section, the
Administrators or the Securities Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Trust Securities Certificate issued pursuant
to this Section shall constitute conclusive evidence of an undivided beneficial
ownership 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.
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Section 5.7. Persons Deemed Holders.
The Issuer Trustees, the Administrators and the Securities Registrar
shall each 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 none of the Issuer Trustees, the Administrators or the
Securities Registrar shall be bound by any notice to the contrary.
Section 5.8. Access to List of Holders' Names and Addresses.
At any time when the Property Trustee is not also acting as the
Securities Registrar, the Administrators or the Depositor shall furnish or cause
to be furnished to the Property Trustee (a) semi-annually on or before [January
15] or [July 15] in each year, a list, in such form as the Property Trustee may
reasonably require, of the names and addresses of the Holders as of the most
recent regular record date (as provided in Section 4.1(d)) and (b) promptly
after receipt by any Administrator or the Depositor of a request therefor from
the Property Trustee, such other information as the Property Trustee may
reasonably require in order to enable the Property Trustee to discharge its
obligations under this Trust Agreement, in each case to the extent such
information is in the possession or control of the Administrators 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 Holders to communicate with other Holders with respect
to their rights under this Trust Agreement or under the Trust Securities, and
the corresponding rights of the Property Trustee shall be as provided in the
Trust Indenture Act. Each Holder, by receiving and holding a Trust Securities
Certificate, and each Owner shall be deemed to have agreed not to hold the
Depositor, the Property Trustee or the Administrators accountable by reason of
the disclosure of its name and address, regardless of the source from which such
information was derived.
Section 5.9. Maintenance of Office or Agency.
The Property Trustee shall designate, with the consent of the
Administrators (which shall not be unreasonably withheld), 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 Issuer Trustees in respect of the Trust Securities Certificates may be
served. The Property Trustee initially designates the Corporate Trust Office,
Attn: Corporate Trust Administration, as its principal corporate trust office
for such purposes. The Property Trustee shall give prompt written notice to the
Depositor and to the Holders of any change in the location of the Securities
Register or any such office or agency.
Section 5.10. Appointment of Paying Agent.
The Paying Agent shall make distributions to Holders from the Payment
Account and shall report the amounts of such distributions to the Property
Trustee and the Administrators. 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 Property Trustee may revoke such power and
remove the Paying Agent if it determines in its sole discretion that the Paying
Agent shall have failed to perform its obligations under this Trust Agreement in
any material
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respect. The Paying Agent shall initially be the Property Trustee. Any Person
acting as Paying Agent shall be permitted to resign as Paying Agent upon 30
days' written notice to 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 Property
Trustee shall appoint a successor that is reasonably acceptable to the
Administrators to act as Paying Agent (which shall be a bank or trust company).
Such successor Paying Agent or any additional Paying Agent shall execute and
deliver to the Issuer Trustees an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the Issuer Trustees that as
Paying Agent, such successor Paying Agent or additional Paying Agent will hold
all sums, if any, held by it for payment to the Holders in trust for the benefit
of the Holders entitled thereto until such sums shall be paid to such Holders.
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 herein shall apply, to the extent applicable, to any other paying agent
appointed hereunder. Any reference in this Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
Section 5.11. Ownership of Common Securities by Depositor.
At each Closing Date, the Depositor shall acquire and retain beneficial
and record ownership of the Common Securities. To the fullest extent permitted
by law, other than transactions permitted by Section 5.01 of the Indenture, any
attempted transfer of the Common Securities shall be void. The Administrators
shall cause each Common Securities Certificate issued to the Depositor to
contain a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE OTHER THAN IN
ACCORDANCE WITH THE TRUST AGREEMENT (AS DEFINED BELOW)."
Section 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the Owners is
required under this Trust Agreement, for so long as Preferred Securities are
represented by a Global Preferred Security, the Administrators and the Issuer
Trustees shall give all such notices and communications specified herein to be
given to Owners to the Clearing Agency, and shall have no obligations to the
Owners.
Section 5.13. Rights of Holders.
(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 Holders shall not have any right or title therein other than the undivided
beneficial ownership interests 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. By acceptance of a
beneficial interest in the Trust Securities, Holders agree to treat the
Debentures as indebtedness for all United States tax purposes. The Trust
Securities shall have no preemptive or similar rights and when issued and
delivered to Holders against payment of the purchase price therefor will be
fully paid and nonassessable by the Trust. The Holders of
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the Trust 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 Indenture Trustee fails or the holders of
not less than 25% in aggregate 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 aggregate Liquidation Amount of the
Preferred Securities then Outstanding shall have such right by a notice in
writing to the Depositor and the Indenture 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. At any time after such a declaration of
acceleration with respect to the Debentures has been made and before a judgment
or decree for payment of the money due has been obtained by the Indenture
Trustee as in the Indenture provided, the Holders of a majority in Liquidation
Amount of the Preferred Securities, by written notice to the Depositor and the
Indenture Trustee, may rescind and annul such declaration and its consequences
if:
(i) the Depositor has paid or deposited with the Indenture
Trustee a sum sufficient to pay:
(A) all overdue installments of interest on all of the
Debentures,
(B) the principal of (and premium, if any, on) any Debentures
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the
Debentures, and
(C) all sums paid or advanced by the Indenture Trustee under
the Indenture and the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and the
Property Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the Debentures, other
than the non-payment of the principal of the Debentures which has
become due solely by such acceleration, have been cured or waived as
provided in Section 5.13 of the Indenture.
The Holders of a majority in aggregate Liquidation Amount of the
Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default under the Indenture, except a default in the
payment of principal or interest (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Indenture Trustee) or
a default in respect of a covenant or provision which under the Indenture cannot
be modified or amended without the consent of the holder of each outstanding
Debenture. No such waiver or rescission shall affect any subsequent default or
impair any right consequent thereon. Upon receipt by the Property Trustee of
written notice declaring such an acceleration, or rescission and annulment
thereof, by Holders of the Preferred Securities all or part of which is
represented by Book-Entry Preferred
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Securities Certificates, a record date shall be established for determining
Holders of Outstanding Preferred Securities entitled to join in such notice,
which record date shall be at the close of business on the day the Property
Trustee receives such notice. The Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to join in such
notice, whether or not such Holders remain Holders after such record date;
provided, that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day which is 90
days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice which has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 5.13(b).
(c) For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon a Debenture Event of Default specified in Section 5.1(a)
or 5.1(b) of the Indenture, any Holder of Preferred Securities shall have the
right to institute a proceeding directly against the Depositor, pursuant to the
Indenture, for enforcement of payment to such Holder of the principal amount of
or interest on Debentures having a principal amount equal to the Liquidation
Amount of the Preferred Securities of such Holder (a "Direct Action"). In
connection with any such Direct Action, the Holder of the Common Securities will
be subrogated to the rights of any Holder of the Preferred Securities to the
extent of any payment made by the Depositor to such Holder of Preferred
Securities as a result of such Direct Action. Except as set forth in subsection
(b) of this Section 5.13 and this subsection (c), the Holders of Preferred
Securities shall have no right to exercise directly any right or remedy
available to the holders of, or in respect of, the Debentures.
(d) Except as otherwise provided in subsections (a), (b) and (c) of
this Section 5.13, the Holders of at least a majority in Liquidation Amount of
the Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default or Event of Default and its consequences.
Upon such waiver, any such default or Event of Default shall cease to exist, and
any default or Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Trust Agreement, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
Section 6.1. Limitations on Voting Rights.
(a) Except as provided in this Trust Agreement and in the Indenture and
as otherwise required by law, no 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
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Securities Certificates, be construed so as to constitute the Holders from time
to time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee, the
Issuer Trustees shall not (i) direct the time, method and place of conducting
any proceeding for any remedy available to the Indenture Trustee, or executing
any trust or power conferred on the Property Trustee with respect to such
Debentures, (ii) waive any past default which is waivable under Section 5.13 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 or modification under Section 10.2 or termination of the Indenture
or any amendment, modification or termination of 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 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 Property
Trustee shall not revoke any action previously authorized or approved by a vote
of the Holders of Preferred Securities, except by a subsequent vote of the
Holders of Preferred Securities. The Property Trustee shall notify all Holders
of the Preferred Securities of any notice of default received from the Indenture
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 Issuer Trustees shall, at the expense of the Depositor,
obtain an Opinion of Counsel experienced in such matters to the effect that the
Trust will not be classified as an association taxable as a corporation for
United States Federal income tax purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement provides for, or
the Issuer 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 will be entitled to vote
on such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a majority in
Liquidation Amount of the Outstanding Preferred Securities. Notwithstanding any
other provision of this Trust Agreement, no amendment to this Trust Agreement
may be made if, as a result of such amendment, the Trust would be classified as
an association taxable as a corporation for United States Federal income tax
purposes.
Section 6.2. Notice of Meetings.
Notice of all meetings of the Holders of Preferred Securities, stating
the time, place and purpose of the meeting, shall be given by the Property
Trustee pursuant to Section 10.8 to each Holder of Preferred Securities 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 whether or not stated in the notice of the meeting.
Any adjourned meeting may be held as adjourned without further notice.
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Section 6.3. Meetings of the Holders of Preferred Securities.
No annual meeting of Holders is required to be held. The Property
Trustee, however, shall call a meeting of Holders to vote on any matter upon the
written request of the Holders of record of 25% in aggregate Liquidation Amount
of the Preferred Securities and the Administrators or the Property Trustee may,
at any time in their discretion, call a meeting of Holders of Preferred
Securities to vote on any matters as to which Holders of Preferred Securities
are entitled to vote.
The Holders of record of 50% of the Outstanding Preferred Securities
(based upon their Liquidation Amount), present in person or by proxy, shall
constitute a quorum at any meeting of Holders of the Preferred Securities.
If a quorum is present at a meeting, an affirmative vote by the Holders
of record present, in person or by proxy, holding a majority of the Preferred
Securities (based upon their Liquidation Amount) held by the Holders of record
present, either in person or by proxy, at such meeting shall constitute the
action of the Holders, unless this Trust Agreement requires a greater number of
affirmative votes.
Section 6.4. Voting Rights.
Holders shall be entitled to one vote for each $[___] of Liquidation
Amount represented by their Outstanding Trust Securities in respect of any
matter as to which such Holders are entitled to vote.
Section 6.5. Proxies, etc.
At any meeting of Holders, any Holder 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 Administrators, or with such other officer or
agent of the Trust as the Administrators may direct, for verification prior to
the time at which such vote shall be taken. Pursuant to a resolution of the
Property Trustee, proxies may be solicited in the name of the Property Trustee
or one or more officers of the Property Trustee. Only Holders of record 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
Holder shall be deemed valid unless challenged at or prior to its exercise, and
the burden of proving invalidity shall rest on the challenger. No proxy shall be
valid more than three years after its date of execution.
Section 6.6. Holder Action by Written Consent.
Any action which may be taken by Holders at a meeting may be taken
without a meeting if Holders holding a majority of all Outstanding Trust
Securities (based upon their 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.
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Section 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Holders 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 Administrators may from time to time fix a date, not more than 90
days prior to the date of any meeting of Holders or the payment of a
distribution or other action, as the case may be, as a record date for the
determination of the identity of the Holders of record for such purposes.
Section 6.8. Acts of Holders.
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 Holders may be embodied in and evidenced by one or more
substantially similar instruments signed by such Holders 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 the Property Trustee. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders 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 Issuer Trustee and the Administrators, if made
in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him 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 or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which any Trustee receiving the same deems sufficient.
The ownership of Trust Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Trust Security shall bind every future Holder
of the same Trust Security and the Holder 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 Issuer
Trustees, the Administrators or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Holder 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.
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If any dispute shall arise among the Holders, the Administrators and
the Issuer Trustees with respect to the authenticity, validity or binding nature
of any request, demand, authorization, direction, consent, waiver or other Act
of such Holder, Administrator or Issuer Trustee under this Article VI, then the
determination of such matter by the Property Trustee shall be conclusive with
respect to such matter.
Section 6.9. Inspection of Records.
Upon reasonable notice to the Administrators and the Property Trustee,
the records of the Trust shall be open to inspection by Holders during normal
business hours for any purpose reasonably related to such Holder's interest as a
Holder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.1. Representations and Warranties of the Issuer Trustees.
The Property Trustee and the Delaware Trustee, each severally on behalf
of and as to itself, hereby represents and warrants for the benefit of the
Depositor and the Holders that:
(a) the Property Trustee is a national banking association duly
organized, validly existing and in good standing under the laws of the United
States;
(b) the Property Trustee meets the applicable eligibility requirements
set forth in Section 8.7, has full corporate power, authority and legal right to
execute, deliver and perform its obligations under this Trust Agreement and has
taken all necessary action to authorize the execution, delivery and performance
by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware corporation duly organized,
validly existing and in good standing in the State of Delaware;
(d) the Delaware Trustee meets the applicable eligibility requirements
set forth in Section 8.7, has full corporate power, authority and legal right to
execute, deliver and perform its obligations under this Trust Agreement and has
taken all necessary action to authorize the execution, delivery and performance
by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed and
delivered by the Issuer Trustees and constitutes the valid and legally binding
agreement of each of the Issuer Trustees enforceable against each of them 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;
(f) the execution, delivery and performance of this Trust Agreement
have been duly authorized by all necessary corporate or other action on the part
of the Issuer Trustees and do not require any approval of stockholders of the
Property Trustee and the Delaware Trustee and such execution, delivery and
performance will not (i) violate the charter or by-laws of either Issuer
Trustee, (ii) violate any provision of, or constitute, with or without notice or
lapse of time, a
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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 either Issuer Trustee is a party or by which it is bound, or (iii)
violate any law, governmental rule or regulation of the United States or the
State of Delaware, as the case may be, governing the corporate, banking, trust
or general powers of the Property Trustee or the Delaware Trustee (as
appropriate in context) or any order, judgment or decree applicable to the
Property Trustee or the Delaware Trustee;
(g) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the consummation of
any of the transactions by the Property Trustee or the Delaware Trustee, as
the case may be, 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, trust or general powers of the
Property Trustee or the Delaware Trustee (as appropriate in context), or under
the laws of the United States or the State of Delaware; and
(h) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened against or
affecting the Property Trustee or the Delaware Trustee 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 Property Trustee
or the Delaware Trustee, as the case may be, to enter into or perform its
obligations as one of the Issuer Trustees under this Trust Agreement.
Section 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Holders that:
(a) the Trust Securities Certificates issued at each Closing Date on
behalf of the Trust have been duly authorized and will have been, duly and
validly executed, issued and delivered by the Administrators and the Property
Trustee pursuant to the terms and provisions of, and in accordance with the
requirements of, this Trust Agreement, and the Holders will be, as of each 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 Issuer Trustees on behalf of the Trust) under the laws of the
State of Delaware or any political subdivision thereof in connection with the
execution, delivery and performance by the Property Trustee or the Delaware
Trustee, as the case may be, of this Trust Agreement.
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ARTICLE VIII
THE ISSUER TRUSTEES; THE ADMINISTRATORS
Section 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Issuer Trustees and the
Administrators shall be as provided by this Trust Agreement and, in the case of
the Property Trustee, subject to the Trust Indenture Act. Notwithstanding the
foregoing, no provision of this Trust Agreement shall require any of the Issuer
Trustees or the Administrators 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.
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 Issuer Trustees or the Administrators shall be subject to the
provisions of this Section. Nothing in this Trust Agreement shall be construed
to release an Issuer Trustee or an Administrator from liability for its own
gross negligent action, its own gross negligent failure to act, or its own
willful misconduct. To the extent that, at law or in equity, an Administrator or
Issuer Trustee has duties (including fiduciary duties) and liabilities relating
thereto to the Trust or to the Holders, such Administrator or the Issuer Trustee
shall not be liable to the Trust or to any Holder for its 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
Administrators or Issuer Trustees otherwise existing at law or in equity, are
agreed by the Depositor and the Holders to replace such other duties and
liabilities of the Administrators and Issuer Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the Trust Property and only to the extent that there shall be sufficient
revenue or proceeds from the Trust Property to enable the Property Trustee or a
Paying Agent to make payments in accordance with the terms hereof. Each Holder,
by its acceptance of a Trust Security, agrees that it will look solely to the
revenue and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that none of the Administrators or the
Issuer 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 Issuer
Trustees or the Administrators expressly set forth elsewhere in this Trust
Agreement and, in the case of the Property Trustee, in the Trust Indenture Act.
(c) If an Event of Default has occurred and is continuing, the Property
Trustee shall enforce this Trust Agreement for the benefit of the Holders.
(d) The Property Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Trust Agreement (including pursuant to Section 10.10), and no implied covenants
shall be read into this Trust Agreement against the Property Trustee. If an
Event of Default has occurred (that has not been cured or waived pursuant to
Section 5.13), the Property Trustee shall exercise such of the rights and powers
vested in it by this Trust
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Agreement 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.
(e) No provision of this Trust Agreement shall be construed to relieve
the Property Trustee from liability for its own negligent action or its own
negligent failure to act, 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 Preferred 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 similar manner
as the Property Trustee deals with similar property for its own
account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Trust Agreement and the
Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree with the
Depositor; and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment Account maintained by the Property Trustee pursuant to Section
3.1 and except to the extent otherwise required by law;
(v) the Property Trustee shall not be responsible for monitoring
the compliance by the Delaware Trustee, the Administrators or the
Depositor with their respective duties under this Trust Agreement, nor
shall the Property Trustee be liable for the default or misconduct of
the Delaware Trustee, the Administrators or the Depositor;
(vi) 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 Property Trustee shall
be determined solely by the express provisions of this Trust
Agreement (including pursuant to Section 10.10), and the
Property Trustee shall not be liable except for the
performance of such duties and obligations as are
specifically set forth in this Trust Agreement (including
pursuant to Section 10.10); and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as to
the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Property Trustee and conforming to the
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requirements of this Trust Agreement; but in the case of any
such certificates or opinions that by any provision hereof or
of the Trust Indenture Act are specifically required to be
furnished to the Property Trustee, the Property Trustee shall
be under a duty to examine the same to determine whether or
not they conform to the requirements of this Trust Agreement;
and
(vii) subject to Section 8.1(c), no provision of this Trust
Agreement shall require the Property Trustee to expend or risk is own
funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its
rights or powers, if the Property Trustee shall have reasonable grounds
for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of the Trust Agreement or
indemnity reasonably satisfactory to it against such risk or liability
is not reasonably assured to it.
(f) The Administrators shall not be responsible for monitoring the
compliance by the Issuer Trustees or the Depositor with their respective duties
under this Trust Agreement, nor shall either Administrator be liable for the
default or misconduct of any other Administrator, the Issuer Trustees or the
Depositor.
(g) No provision of this Trust Agreement shall be deemed to impose any
duty or obligation on any Issuer Trustee or Administrator 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 such Person
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise and such right, power, duty or
obligation. No permissive power or authority available to any Issuer Trustee or
Administrator shall be construed to be a duty.
Section 8.2. Certain Notices.
Within 90 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 Holders, the Administrators and the Depositor, unless such Event
of Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the
Debentures pursuant to the Indenture, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 10.8, notice of such exercise
to the Holders and the Administrators, unless such exercise shall have been
revoked.
Section 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
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of indebtedness or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement, the
Property Trustee is required to decide between alternative courses of action or
(ii) in construing any of the provisions of this Trust Agreement, the Property
Trustee finds the same ambiguous or inconsistent with any 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 Holders of Preferred Securities are entitled to vote under the terms of this
Trust Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken and the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of the Holders, 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 contemplated by this Trust
Agreement shall be sufficiently evidenced by an Officers Certificate;
(d) any direction or act of an Administrator contemplated by this Trust
Agreement shall be sufficiently evidenced by a certificate executed by such
Administrator and setting forth such direction or act;
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel (which counsel may be
counsel to the Depositor or any of its Affiliates, and may include any of its
employees) and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon and in accordance with
such advice, such counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees; the Property Trustee shall
have the right at any time to seek instructions concerning the administration of
this Trust Agreement from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Holders pursuant to this Trust Agreement, unless such
Holders 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; provided, that nothing
contained in this Section 8.3(g) shall be taken to relieve the Property Trustee,
upon the occurrence of an Event
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of Default, of its obligation to exercise the rights and powers vested in it by
this Trust Agreement;
(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 Holders, but the Property
Trustee may make such further inquiry or investigation into such facts or
matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through its
agents or attorneys, provided, that the Property Trustee shall be responsible
for its own negligence or recklessness with respect to selection of any agent or
attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder the Property
Trustee (i) may request instructions from the Holders of the Trust Securities
which instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to direct the
Property Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received and (iii) shall be
protected in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose any duty
or obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
Section 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 Depositor, and none of the Issuer
Trustees and the Administrators assume any responsibility for their correctness.
The Issuer Trustees and the Administrators shall not be accountable for the use
or application by the Depositor of the proceeds of the Debentures.
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Section 8.5. May Hold Securities.
Any Administrator, any Issuer 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 an
Administrator, Issuer Trustee or such other agent.
Section 8.6. Compensation; Indemnity; Fees.
Pursuant to the Indenture, the Depositor, as borrower, agrees:
(a) to pay to each Issuer Trustee and Paying Agent from time to time
reasonable compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse each
Issuer Trustee upon request for all reasonable expenses, disbursements and
advances incurred or made by such Issuer Trustee 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 its negligence or bad faith;
and
(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) each Issuer Trustee, (ii) each Administrator, (iii) each
Paying Agent, (iv) any Affiliate of any Issuer Trustee, (v) any officer,
director, shareholder, employee, representative or agent of any Issuer Trustee,
and (vi) any employee or agent of the Trust (referred to herein as an
"Indemnified Person") from and against any loss, damage, liability, tax,
penalty, expense or claim of any kind or nature whatsoever incurred by such
Indemnified Person by reason of the creation, operation or termination of the
Trust or any act or omission performed or omitted by such Indemnified Person in
good faith on behalf of the Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Trust Agreement, except that no Indemnified Person
shall be entitled to be indemnified in respect of any loss, damage or claim
incurred by such Indemnified Person by reason of gross negligence or willful
misconduct with respect to such acts or omissions.
(d) to the fullest extent permitted by applicable law, to advance
expenses (including legal fees) incurred by an Indemnified Person in defending
any claim, demand, action, suit or proceeding, from time to time, prior to the
final disposition of such claim, demand, action, suit or proceeding upon receipt
by the Depositor of (i) a written affirmation by or on behalf of the Indemnified
Person of its or his good faith belief that it or he has met the standard of
conduct set forth in this Section 8.6 and (ii) an undertaking by or on behalf of
the Indemnified Person to repay such amount if it shall be determined that the
Indemnified Person is not entitled to be indemnified as authorized in the
preceding subsection.
The provisions of this Section 8.6 shall survive the termination of
this Trust Agreement or the resignation or removal of any Trustee.
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No Issuer Trustee or Paying Agent may claim any lien or charge on any
Trust Property as a result of any amount due pursuant to this Section 8.6.
In the event that the Property Trustee is also acting as Paying Agent
or Securities Registrar hereunder, the rights and protections afforded to the
Property Trustee pursuant to this Article VIII shall also be afforded to such
Paying Agent or Securities Registrar.
Section 8.7. Corporate Property Trustee Required; Eligibility of
Issuer Trustees and Administrators.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be one or more Administrators hereunder
with respect to the Trust Securities. Each Administrator shall be either a
natural person who is at least 21 years of age or a legal entity that shall act
through one or more persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware or (ii) a
legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity.
Section 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. The Depositor, any Administrator, any Paying Agent and any Issuer
Trustee may engage in or possess an interest in other business ventures of any
nature or description, independently or with others, similar or dissimilar to
the business of the Trust, and the Trust and the Holders of Trust Securities
shall have no rights by virtue of this Trust Agreement in and to such
independent ventures or the income or profits derived therefrom, and the pursuit
of any such venture, even if competitive with the business of the Trust, shall
not be deemed wrongful or improper. None of the Depositor, any Administrator,
any Paying Agent nor any Issuer Trustee shall be obligated to present any
particular investment or other opportunity to the Trust even if such opportunity
is of a character that, if presented to the Trust, could be taken by the Trust,
and the Depositor, any Administrator, any Paying Agent, or any Issuer Trustee
shall have the right to take for its own account (individually or as a partner
or fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Issuer Trustee or
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any Paying Agent may engage or be interested in any financial or other
transaction with the Depositor or any Affiliate of the Depositor, or may act as
depository for, trustee or agent for, or act on any committee or body of holders
of, securities or other obligations of the Depositor or its Affiliates.
Section 8.9. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing, at
any time or times, for the purpose of meeting the legal requirements of the
Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Property Trustee shall have power to
appoint, and upon the written request of the Property Trustee the Depositor and
the Administrators 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 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. Any co-trustee or separate trustee
appointed pursuant to this Section shall either be (i) a natural person who is
at least 21 years of age and a resident of the United States or (ii) a legal
entity with its principal place of business in the United States that shall act
through one or more persons authorized to bind such entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed by one or more
Administrators 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 Property
Trustee specified hereunder, shall be exercised, solely by the Property Trustee
and not by such co-trustee or separate trustee.
(b) The rights, powers, duties and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Property Trustee or by the Property Trustee and such co- trustee or separate
trustee jointly, as shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be exercised and performed by
such co-trustee or separate trustee.
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(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept the
resignation of or remove any co-trustee or separate trustee appointed under this
Section, and, in case a Debenture Event of Default has occurred and is
continuing, the Property Trustee shall have power to accept the resignation of,
or remove, any such co-trustee or separate trustee without the concurrence of
the Depositor. Upon the written request of the Property Trustee, the Depositor
shall join with the Property Trustee in the execution, delivery and performance
of all instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee or any other
trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act of a
co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
Section 8.10. Resignation and Removal of Issuer Trustees, Appointment
of Successor.
No resignation or removal of any Issuer Trustee (the "Relevant
Trustee") and no appointment of a successor Issuer Trustee pursuant to this
Article shall become effective until the acceptance of appointment by the
successor Issuer Trustee in accordance with the applicable requirements of
Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee
may resign at any time by giving written notice thereof to the Holders and by
appointing a successor Issuer Trustee. If the instrument of acceptance by the
successor Issuer 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 (pursuant to the Indenture, at
the expense of the Depositor), any court of competent jurisdiction for the
appointment of a successor Issuer Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Issuer Trustee may be removed at any time by Act of the
Depositor. 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).
If either Issuer Trustee shall resign, be removed or become incapable
of acting as Property Trustee or Delaware Trustee, as the case may be, or if a
vacancy shall occur in the office of any Issuer Trustee for any cause, at a time
when no Debenture Event of Default shall have occurred and be continuing, the
Depositor, by Act delivered to the Relevant Trustee, shall promptly appoint a
successor Issuer Trustee or Trustees, and the Relevant Trustee shall comply with
the applicable requirements of Section 8.11. If either Issuer 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
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and be continuing, the Holders of the Preferred Securities, by Act of the
Holders 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, and such successor Trustee shall comply
with the applicable requirements of Section 8.11.
The Property Trustee shall give notice of each resignation and each
removal of an Issuer Trustee and each appointment of a successor Issuer Trustee
to all Holders in the manner provided in Section 10.8 and shall give notice to
the Depositor and the Administrators. Each notice shall include the name of the
successor Relevant Trustee and the address of its Corporate Trust Office if it
is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event 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 the
Property Trustee (with the successor in each case being a Person who satisfies
the eligibility requirement for Delaware Trustee set forth in Section 8.7).
Section 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee and each successor Relevant Trustee with respect
to the Trust Securities shall execute and deliver an amendment hereto wherein
each successor Relevant Trustee shall accept such appointment and which (a)
shall contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Trust and (b) shall add to or change any of the
provisions of this Trust Agreement as shall be necessary to provide for or
facilitate the administration of the Trust by more than one Relevant Trustee, it
being understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees and upon the execution and delivery of such
amendment the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on request of the Trust or any successor Relevant Trustee such retiring Relevant
Trustee shall duly assign, transfer and deliver to such successor Relevant
Trustee all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case way be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
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Section 8.12. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Property Trustee or the Delaware 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 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 corporation
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
Section 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).
Section 8.14. Reports by the Property Trustee.
(a) The Property Trustee shall transmit to Holders such reports
concerning the Property Trustee and its actions under this Trust Agreement as
may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. If required by Section 313(a) of the Trust
Indenture Act, the Property Trustee shall, within 60 days after each May 15
following the date of this Trust Agreement deliver to Holders a brief report,
dated as of such May 15, which complies with the provisions of such Section
313(a).
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Property Trustee with each national stock exchange,
the NASDAQ National Market or such other interdealer quotation system or
self-regulatory organization upon which the Trust Securities are listed or
traded, with the Commission and with the Depositor.
Section 8.15. Reports to the Property Trustee.
The Depositor and the Administrators on behalf of the Trust shall
provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a) of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the Trust Indenture
Act.
Section 8.16. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrators 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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Section 8.17. Number of Issuer Trustees.
(a) The number of Issuer Trustees shall be two, provided that the
Property Trustee and the Delaware Trustee may be the same Person, subject to the
applicable eligibility requirements set forth herein.
(b) If an Issuer Trustee ceases to hold office for any reason, or if
the number of Issuer Trustees is increased pursuant to Section 8.17(a), a
vacancy shall occur. The vacancy shall be filled with an Issuer Trustee
appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of an Issuer Trustee shall not
operate to annul, dissolve or terminate the Trust.
Section 8.18. Delegation of Power by Administrators.
(a) Any Administrator 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), including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) The Administrators 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 Administrators or otherwise as the Administrators may deem expedient, to the
extent such delegation is not prohibited by applicable law or contrary to the
provisions of this Trust Agreement, as set forth herein.
Section 8.19. Appointment and Removal of Administrators.
(a) The Administrators shall initially be and
, and their successors shall be appointed by the Holders of a
majority in Liquidation Amount of the Common Securities and may resign or be
removed by the Holders of a majority in Liquidation Amount of the Common
Securities at any time. Upon any resignation or removal, the Depositor shall
appoint a successor Administrator. Each Administrator shall sign an agreement
agreeing to comply with the terms of this Trust Agreement. If at any time there
is no Administrator, the Property Trustee or any Holder who has been a Holder of
Trust Securities for at least six months may petition any court of competent
jurisdiction for the appointment of one or more Administrators.
(b) Whenever a vacancy in the number of Administrators shall occur,
until such vacancy is filled by the appointment of an Administrator in
accordance with this Section 8.19, the Administrator in office, regardless of
their number (and notwithstanding any other provision of this Agreement), shall
have all the powers granted to the Administrators and shall discharge all the
duties imposed upon the Administrators by this Trust Agreement.
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(c) Notwithstanding the foregoing or any other provision of this Trust
Agreement, if any Administrator who is a natural person dies or becomes, in the
opinion of the Holder of a majority in Liquidation Amount the Common Securities,
incompetent or incapacitated, the vacancy created by such death, incompetence or
incapacity may be filled by the unanimous act of the remaining Administrators,
if there were at least two of them prior to such vacancy, and by the Depositor,
if there were not two such Administrators immediately prior to such vacancy
(with the successor being a Person who satisfies the eligibility requirement for
Administrators set forth in Section 8.7).
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
Section 9.1. Termination Upon Expiration Date.
Unless earlier terminated, the Trust shall automatically dissolve on
, 2054 (the "Expiration Date"). Thereafter, the Trust Property shall be
distributed in accordance with Section 9.4.
Section 9.2. Early Termination.
The first to occur of any of the following events is an "Early
Termination Event," the occurrence of which shall cause a dissolution of the
Trust:
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor in its capacity as Holder of the
Common Securities;
(b) the written direction to the Property Trustee from the Depositor at
any time (which direction is optional and wholly within the discretion of the
Depositor) to dissolve the Trust and distribute Debentures to Holders in
exchange for the Preferred Securities;
(c) the redemption of all of the Preferred Securities in connection
with the redemption of all of the Debentures; and
(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.
Section 9.3. Termination.
The respective obligations and responsibilities of the Issuer Trustees,
the Administrators 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 Holders of all amounts required to be distributed hereunder 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; (b) the payment of any expenses
owed by the Trust; and (c) the discharge of all administrative duties of the
Administrators, including the performance of any tax reporting obligations with
respect to the Trust or the Holders.
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Section 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 Property Trustee as expeditiously as the Property Trustee determines to
be possible by distributing, after satisfaction of liabilities to creditors of
the Trust as provided by applicable law, to each Holder 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 will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of 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 Property Trustee (after consultation with the
Administrators) 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 Holders, 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 will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Debentures will be
issued to Holders of Trust Securities Certificates, upon surrender of such
certificates to the Administrators or their agent for exchange, (iii) the
Depositor shall use its reasonable efforts to have the Debentures listed on the
New York Stock Exchange or on such other exchange, interdealer quotation system
or self-regulatory organization as the Preferred Securities are then listed,
(iv) any Trust Securities Certificates not so surrendered for exchange will 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 will be made to Holders of Trust Securities
Certificates with respect to such Debentures) and (v) all rights of Holders
holding Trust Securities will cease, except the right of such Holders to receive
Debentures upon surrender of Trust Securities Certificates.
(d) In the event that, upon the Expiration Date or the occurrence of an
Early Termination Event, 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
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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, Holders will be entitled to receive out of
the assets of the Trust available for distribution to Holders, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, an amount equal to the Liquidation Amount per Trust Security plus
accumulated and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"). If, upon any such winding-up, the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts). The Holder of the Common Securities will be entitled
to receive Liquidation Distributions upon any such winding-up pro rata
(determined as aforesaid) with Holders of 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.
(e) Upon the completion of the liquidation of the Trust, the Property
Trustee shall file a certificate of cancellation with the Secretary of State in
the State of Delaware and the Trust shall terminate.
Section 9.5. Mergers, Consolidations, Conversions, Amalgamations or
Replacements of the Trust.
The Trust may not merge with or into, consolidate, convert into,
amalgamate, be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, except pursuant to this
Section 9.5 or Section 9.4. At the request of the Holders of at least a majority
in Liquidation Amount of the Common Securities, with the consent of the Holders
of at least a majority in Liquidation Amount of the Preferred Securities but
without the consent of the Issuer Trustees, the Trust may merge with or into,
consolidate, convert into, 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 (a) such successor
entity either (i) expressly assumes all of the obligations of the Trust with
respect to the Preferred Securities or (ii) 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, (b) the
Depositor expressly appoints a trustee of such successor entity possessing the
same powers and duties as the Property Trustee as the holder of the Debentures,
(c) the Successor Securities are listed or traded, or any Successor Securities
will be listed upon notification of issuance, on any national securities
exchange or other organization on which the Preferred Securities are then listed
or traded, if any, (d) such merger, consolidation, conversion, amalgamation,
replacement, conveyance, transfer or lease does not cause the Preferred
Securities (including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization, (e) such merger,
consolidation, conversion, 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, (f) such successor entity has a purpose substantially
identical to that of the Trust, (g) prior to such merger, consolidation,
conversion, amalgamation, replacement, conveyance,
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transfer or lease, the Property Trustee has received an Opinion of Counsel to
the effect that (i) such merger, consolidation, conversion, 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, (ii) following such merger,
consolidation, conversion, amalgamation, replacement, conveyance, transfer or
lease, neither the Trust nor such successor entity will be required to register
as an investment company under the 1940 Act and (iii) the proposed action will
not cause the Trust or such successor entity to be classified as an association
that is taxable as a corporation for U.S. federal income tax purposes, and (h)
the Depositor owns all of the common securities of such successor entity and
guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee. Notwithstanding the
foregoing, the Trust shall not, except with the consent of Holders of 100% in
Liquidation Amount of the Preferred Securities, consolidate, amalgamate, merge
with or into, convert into, be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to any other Person or permit
any other entity to consolidate, amalgamate, merge with or into, or replace it
if such consolidation, conversion, amalgamation, merger, replacement,
conveyance, transfer or lease would cause the Trust or the successor entity to
be classified as other than a grantor trust for United States Federal income tax
purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1. Limitation of Rights of Holders.
The death, incapacity, dissolution, bankruptcy or termination of any
Person having an interest, beneficial or otherwise, in Trust Securities shall
not operate to terminate this Trust Agreement nor dissolve, terminate or annul
the Trust nor entitle the legal representatives or heirs of such Person or any
Holder 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.
Section 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by the
Property Trustee and the Depositor, without the consent of the Holders of the
Preferred Securities, (i) to cure any ambiguity, correct or supplement any
provision herein which may be inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions arising under
this Trust Agreement, which shall not be inconsistent with the other provisions
of this Trust Agreement, or (ii) to modify, eliminate or add to any provisions
of this Trust Agreement to such extent as shall be necessary to ensure that the
Trust will be classified for United States Federal income tax purposes as a
grantor trust at all times that any Trust Securities are outstanding or to
ensure that the Trust will not be required to register as an investment company
under the 1940 Act; provided, however, that in the case of clause (i), such
action shall not adversely affect in any material respect the interests of any
Holder, and any such amendments of this Trust Agreement shall become effective
when notice thereof is given to the Holders.
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(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 Property Trustee and the
Depositor with (i) the consent of Holders representing not less than a majority
(based upon Liquidation Amounts) of the Preferred Securities then Outstanding
and (ii) receipt by the Property Trustee of an Opinion of Counsel to the effect
that such amendment or the exercise of any power granted to the Property Trustee
in accordance with such amendment will not affect the Trust's status as a
grantor trust for United States Federal income tax purposes or the Trust's
exemption from status of an investment company under the 1940 Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Holder, this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Holder 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 Holders, this paragraph
(c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Issuer 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 1940 Act or 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 and the Administrators, this Trust
Agreement may not be amended in a manner which imposes any additional obligation
on the Depositor or the Administrators.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrators 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 is in compliance
with this Trust Agreement.
Section 10.3. Separability.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 10.4. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
HOLDERS, THE TRUST, THE DEPOSITOR, THE ISSUER TRUSTEES AND THE ADMINISTRATORS
SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE AND ALL RIGHTS
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AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICT OF LAWS OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION THAT WOULD
CALL FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION OTHER THAN THE
STATE OF DELAWARE; PROVIDED, HOWEVER, THAT THERE SHALL NOT BE APPLICABLE TO THE
HOLDERS, THE TRUST, THE DEPOSITOR, THE TRUSTEES OR THIS TRUST AGREEMENT ANY
PROVISION OF THE LAWS (STATUTORY OR COMMON) OF THE STATE OF DELAWARE PERTAINING
TO TRUSTS THAT RELATE TO OR REGULATE, IN A MANNER INCONSISTENT WITH THE TERMS
HEREOF (A) THE FILING WITH ANY COURT OR GOVERNMENT BODY OR AGENCY OF TRUSTEE
ACCOUNTS OR SCHEDULES OF TRUSTEE FEES AND CHARGES, (B) AFFIRMATIVE REQUIREMENTS
TO POST BONDS FOR TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (C) THE
NECESSITY FOR OBTAINING COURT OR OTHER GOVERNMENTAL APPROVAL CONCERNING THE
ACQUISITION, HOLDING OR DISPOSITION OF REAL OR PERSONAL PROPERTY, (D) FEES OR
OTHER SUMS PAYABLE TO TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (E)
THE ALLOCATION OF RECEIPTS AND EXPENDITURES TO INCOME OR PRINCIPAL, (F)
RESTRICTIONS OR LIMITATIONS ON THE PERMISSIBLE NATURE, AMOUNT OR CONCENTRATION
OF TRUST INVESTMENTS OR REQUIREMENTS RELATING TO THE TITLING, STORAGE OR OTHER
MANNER OF HOLDING OR INVESTING TRUST ASSETS OR (G) THE ESTABLISHMENT OF
FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY OR LIMITATIONS ON THE ACTS OR
POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE LIMITATIONS OR LIABILITIES OR
AUTHORITIES AND POWERS OF THE TRUSTEES AS SET FORTH OR REFERENCED IN THIS TRUST
AGREEMENT. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY TO THE
TRUST.
Section 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
way be made an the next succeeding day that is a Business Day (except as
otherwise provided in Sections 4.1(a) and 4.2(d)), with the same force and
effect as though made on the date fixed for such payment, and no interest shall
accrue thereon for the period after such date.
Section 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Trust, the Administrators or the
Relevant Trustee, including any successor by operation of law. Except in
connection with transactions permitted under Article 5 of the Indenture and
pursuant to which the assignee agrees in writing to perform the Depositor's
obligations hereunder, the Depositor shall not assign its obligations hereunder.
Section 10.7. Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
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Section 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 Holder 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 Holder of Preferred Securities, to such Holders of Preferred Securities as
such Holder's name and address may appear on the Securities Register; and (b) in
the case of the Common Holder or the Depositor, to Old National Bancorp, 420
Main Street, Evansville, Indiana 47708, Attention: Corporate Secretary,
facsimile no.: 812-464-1567. Such notice, demand or other communication to or
upon a Holder shall be deemed to have been sufficiently given or made, for all
purposes, upon hand delivery, mailing or transmission. Such notice, demand or
other communication to or upon the Depositor shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the
Depositor.
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, the Delaware Trustee or the Administrators
shall be given in writing addressed (until another address is published by the
Trust) as follows: (a) with respect to the Property Trustee to Bank One Trust
Company, NA, Attention: Corporate Trust Administration; (b) with respect to the
Delaware Trustee, to Bank One Delaware, Inc., Attention: Legal Dept./First USA;
and (c) with respect to the Administrators, to them at the address above for
notices to the Depositor, marked "Attention Administrators of ONB Capital Trust
." Such notice, demand or other communication to or upon the Trust or the
Property Trustee shall be deemed to have been sufficiently given or made only
upon actual receipt of the writing by the Trust or the Property Trustee.
Section 10.9. Agreement Not to Petition.
Each of the Issuer Trustees and the Depositor agree for the benefit of
the Holders that, until at least one year and one day after the Trust has been
terminated in accordance with Article IX, they shall not file, or join in the
filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Depositor takes action in violation of this Section 10.9, the
Property Trustee agrees, for the benefit of Holders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Issuer Trustee or
the Trust may assert. The provisions of this Section 10.9 shall survive the
termination of this Trust Agreement.
Section 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.
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(b) The Property Trustee shall be the only Issuer 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 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 Securities as equity securities representing
undivided beneficial ownership interests in the assets of the Trust.
Section 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 HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL OWNERSHIP INTEREST IN SUCH
TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AGREEMENT TO THE SUBORDINATION
PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE INDENTURE, AND SHALL
CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE
TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND SUCH HOLDER AND SUCH OTHERS.
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THIS TRUST AGREEMENT is executed as of the date first above written.
OLD NATIONAL BANCORP
By:
-------------------------------------
Name:
Title:
BANK ONE TRUST COMPANY, NA, as Property
Trustee
By:
-------------------------------------
Name:
Title:
BANK ONE DELAWARE, INC., as Delaware Trustee
By:
-------------------------------------
Name:
Title:
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EXHIBIT A
CERTIFICATE OF TRUST
OF
ONB CAPITAL TRUST
This Certificate of Trust of ONB Capital Trust (the "Trust")
is being duly executed and filed by the undersigned, as trustees, to form a
business trust under the Delaware Business Trust Act (12 Del. C. Section 3801
et seq.)(the "Act").
1. Name. The name of the business trust being formed hereby is ONB
Capital Trust .
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware are
Bank One Delaware, Inc., Three Christiana Center, 201 North Walnut Street,
Wilmington, Delaware 19801, Attention: Legal Dept./First USA.
3. Effective Date. This Certificate of Trust shall be effective
upon filing with the Secretary of State.
In Witness Whereof, the undersigned have duly executed this
Certificate of Trust in accordance with Section 3811(a)(1) of the Act.
BANK ONE DELAWARE, INC., as Delaware Trustee
By:
---------------------------------------------
Name:
Title:
BANK ONE TRUST COMPANY, NA, as Property Trustee
By:
---------------------------------------------
Name:
Title:
A-1
<PAGE> 61
EXHIBIT B
The Depository Trust Company
55 Water Street, 49th Floor
New York, New York 10041-0099
Attention: General Counsel's Office
Re: ONB Capital Trust % Trust Preferred Securities
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters relating to
the issuance and deposit with The Depository Trust Company ("DTC") of the
book-entry-only portion of the % Trust Preferred Securities (the "Preferred
Securities"), of ONB Capital Trust , a Delaware business trust (the
"Issuer"), formed pursuant to a Trust Agreement between Old National Bancorp
("ONB"), Bank One Trust Company, NA, as Property Trustee, Bank One Delaware,
Inc., as Delaware Trustee, the several Holders named therein. The payment of
distributions on the Preferred Securities, and payments due upon liquidation of
Issuer or redemption of the Preferred Securities, to the extent the Issuer has
funds available for the payment thereof are guaranteed by ONB to the extent set
forth in a Guarantee Agreement dated , 1999, by ONB with respect to the
Preferred Securities. ONB and the Issuer propose to sell the Preferred
Securities to certain Underwriters (the "Underwriters") pursuant to an
Underwriting Agreement dated , 1999 by and among the Underwriters, the
Issuer and ONB, and the Underwriters wish to take delivery of the Preferred
Securities through DTC. Bank One Trust Company, NA, is acting as transfer agent
and registrar with respect to the Preferred Securities (then "Transfer Agent and
Registrar").
To induce DTC to accept the Preferred Securities as eligible for
deposit at DTC, and to act in accordance with DTC's rules with respect to the
Preferred Securities, the Issuer, the Transfer Agent and Registrar and DTC agree
among each other as follows:
1. Prior to the closing of the sale of the Preferred Securities to the
Underwriters, which is expected to occur on or about , 1999, there shall
be deposited with or on behalf of DTC one or more global certificates
(individually and collectively, the "Global Certificate") registered in the name
of DTC's Preferred Securities nominee, Cede & Co., representing an aggregate of
Preferred Securities and bearing the following legend:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER 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
B-1
<PAGE> 62
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
2. The Amended and Restated Trust Agreement of the Issuer provides for
the voting by holders of the Preferred Securities under certain limited
circumstances. The Issuer shall establish a record date for such purposes and
shall, to the extent possible, give DTC notice of such record date not less than
15 calendar days in advance of such record date.
3. In the event of a stock split, conversion, recapitalization,
reorganization or any other similar transaction resulting in the cancellation of
all or any part of the Preferred Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice of such event at least 5
business days prior to the effective date of such event.
4. In the event of distribution on, or an offering or issuance of
rights with respect to, the Preferred Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice specifying: (a) the amount
of and conditions, if any, applicable to the payment of any such distribution or
any such offering or issuance of rights; (b) any applicable expiration or
deadline date, or any date by which any action on the part of the holders of
Preferred Securities is required; and (c) the date any required notice is to be
mailed by or on behalf of the Issuer to holders of Preferred Securities or
published by or on behalf of the Issuer (whether by mail or publication, the
"Publication Date"). Such notice shall be sent to DTC by a secure means (e.g.,
legible telecopy, registered or certified mail, overnight delivery) in a timely
manner designed to assure that such notice is in DTC's possession no later than
the close of business on the business day before the Publication Date. The
Issuer or the Transfer Agent and Registrar will forward such notice either in a
separate secure transmission for each CUSIP number or in a secure transmission
of multiple CUSIP numbers (if applicable) that includes a manifest or list of
each CUSIP number submitted in that transmission. (The party sending such notice
shall have a method to verify subsequently the use of such means and the
timeliness of such notice.) The Publication Date shall be not less than 30
calendar days nor more than 60 calendar days prior to the payment of any such
distribution or any such offering or issuance of rights with respect to the
Preferred Securities. After establishing the amount of payment to be made on the
Preferred Securities, the Issuer or the Transfer Agent and Registrar will notify
DTC's Dividend Department of such payment 5 business days prior to payment date.
Notices to DTC's Dividend Department by telecopy shall be sent to (212)
709-1723. Such notices by mail or by any other means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
The Issuer or the Transfer Agent and Registrar shall confirm DTC's
receipt of such telecopy by telephoning the Dividend Department at (212) 709-
1270.
5. In the event of a redemption by the Issuer of the Preferred
Securities, notice specifying the terms of the redemption and the Publication
Date of such notice shall be sent by
B-2
<PAGE> 63
the Issuer or the Transfer Agent and Registrar to DTC not less than 30 calendar
days prior to such event by a secure means in the manner set forth in paragraph
4. Such redemption notice shall be sent to DTC's Call Notification Department at
(516) 227-4164 or (516) 227-4190, and receipt of such notice shall be confirmed
by telephoning (516) 227-4070. Notice by mail or by any other means shall be
sent to:
Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530-4719
6. In the event of any invitation to tender the Preferred Securities,
notice specifying the terms of the tender and the Publication Date of such
notice shall be sent by the Issuer or the Transfer Agent and Registrar to DTC by
a secure means and in a timely manner as described in paragraph 4. Notices to
DTC pursuant to this paragraph and notices of other corporate actions (including
mandatory tenders, exchanges and capital changes) shall be sent, unless
notification to another department is expressly provided for herein, by telecopy
to DTC's Reorganization Department at (212) 709-1093 or (212) 709-1094 and
receipt of such notice shall be confirmed by telephoning (212) 709-6884, or by
mail or any other means to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
7. All notices and payment advices sent to DTC shall contain the CUSIP
number or numbers of the Preferred Securities and the accompanying designation
of the Preferred Securities, which, as of the date of this letter, is "ONB
Capital Trust , % Trust Preferred Securities."
8. Distribution payments or other cash payments with respect to the
Preferred Securities evidenced by the Global Certificate shall be received by
Cede & Co., as nominee of DTC, or its registered assigns in funds on each
payment date (or in accordance with existing arrangements between the Issuer or
the Transfer Agent and Registrar and DTC). Such payments shall be made payable
to the order of Cede & Co., and shall be addressed as follows:
NDFS Redemption Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
9. DTC may by prior written notice direct the Issuer and the Transfer
Agent and Registrar to use any other telecopy number or address of DTC as the
number or address to which notices or payments may be sent.
10. In the event of a conversion, redemption, or any other similar
transaction (e.g., tender made and accepted in response to the Issuer's or the
Transfer Agent and Registrar's
B-3
<PAGE> 64
invitation) necessitating a reduction in the aggregate number of Preferred
Securities outstanding evidenced by Global Certificates, DTC, in its discretion:
(a) may request the Issuer or the Transfer Agent and Registrar to issue and
countersign a new Global Certificate; or (b) may make an appropriate notation on
the Global Certificate indicating the date and amount of such reduction.
11. DTC may discontinue its services as a securities depositary with
respect to the Preferred Securities at any time by giving at least 90 days'
prior written notice to the Issuer and the Transfer Agent and Registrar (at
which time DTC will confirm with the Issuer or the Transfer Agent and Registrar
the aggregate number of Preferred Securities deposited with it) and discharging
its responsibilities with respect thereto under applicable law. Under such
circumstances, the Issuer may determine to make alternative arrangements for
book-entry settlement for the Preferred Securities, make available one or more
separate global certificates evidencing Preferred Securities to any Participant
having Preferred Securities credited to its DTC account, or issue definitive
Preferred Securities to the beneficial holders thereof, and in any such case,
DTC agrees to cooperate fully with the Issuer and the Transfer Agent and
Registrar, and to return the Global Certificate, duly endorsed for transfer as
directed by the Issuer or the Transfer Agent and Registrar, together with any
other documents of transfer reasonably requested by the Issuer or the Transfer
Agent and Registrar.
12. In the event that the Issuer determines that beneficial owners of
Preferred Securities shall be able to obtain definitive Preferred Securities,
the Issuer or the Transfer Agent and Registrar shall notify DTC of the
availability of certificates. In such event, the Issuer or the Transfer Agent
and Registrar shall issue, transfer and exchange certificates in appropriate
amounts, as required by DTC and others, and DTC agrees to cooperate fully with
the Issuer and the Transfer Agent and Registrar and to return the Global
Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Registrar.
13. This letter may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument. Nothing
herein shall be deemed to require the Transfer Agent and Registrar to advance
funds on behalf of ONB Capital Trust .
B-4
<PAGE> 65
Very truly yours,
ONB CAPITAL TRUST
(As Issuer)
By:
---------------------------------
Name: Administrator
BANK ONE TRUST COMPANY, NA
(As Transfer Agent and Registrar)
By:
---------------------------------
Name: Title:
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:
---------------------------------
Authorized Officer
B-5
<PAGE> 66
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS DESCRIBED IN THE TRUST
AGREEMENT (AS DEFINED BELOW)
Certificate Number Number Of Common Securities:
C-1 ---------
Certificate Evidencing Common Securities
of
ONB Capital Trust
% Common Securities
(Liquidation Amount $ Per Common Security)
ONB Capital Trust , a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that Old National
Bancorp (the "Holder") is the registered owner of ( ) common securities
of the Trust representing undivided beneficial ownership interests of the Trust
and designated the % Common Securities (liquidation amount $ per
Common Security) (the "Common Securities"). To the extent set forth in Section
5.11 of the Trust Agreement (as defined below) the Common Securities are not
transferable and any attempted 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 of the
Trust dated as of , 1999, 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 will 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.
This certificate shall be governed by and interpreted in accordance
with the laws of the State of Delaware (without regard to principles of conflict
of laws).
C-1
<PAGE> 67
In Witness Whereof, one of the Administrators of the Trust has executed
this certificate this day of , 1999.
----- -----------
ONB Capital Trust
By:
------------------------------------
Name:
Administrator
C-2
<PAGE> 68
EXHIBIT D
If the Preferred Security is to be a Global Certificate Insert:
THIS PREFERRED SECURITY IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF
THE TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (THE "DEPOSITORY") OR A NOMINEE OF THE DEPOSITORY. THIS
PREFERRED SECURITY IS EXCHANGEABLE FOR PREFERRED SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND NO TRANSFER OF THIS PREFERRED
SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED SECURITY AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN
LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY IN PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK) ONB
CAPITAL TRUST OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY PREFERRED SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
Certificate Number Number Of Preferred Securities
P- Cusip No.
---------- ------------------
Certificate Evidencing Preferred Securities
of
ONB Capital Trust
% Trust Preferred Securities
------
(Liquidation Amount $ Per Preferred Security)
ONB Capital Trust , 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 an undivided beneficial ownership interest
in the assets of the Trust and designated the ONB Capital Trust % Trust
Preferred Securities (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
D-1
<PAGE> 69
Trust Agreement (as defined below). 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 of the Trust dated
as of , 1999 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 Guarantee
Agreement entered into by Old National Bancorp, an Indiana corporation, and Bank
One Trust Company, NA, as guarantee trustee, dated as of , 1999, as
the same may be amended from time to time (the "Guarantee"), to the extent
provided therein. The Trust will 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.
This certificate shall be governed by and interpreted in accordance
with the laws of the State of Delaware (without regard to principles of conflict
of laws).
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 Administrators of the Trust has executed
this certificate this day of , 1999.
ONB Capital Trust
By:
------------------------------------
Name:
Administrator
D-2
<PAGE> 70
ASSIGNMENT
For Value Received, the undersigned assigns and transfers this Preferred
Security to:
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
(Insert assignee's social security
or tax identification number)
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:
Signature:
------------------------------------------------------------------
(Sign exactly as your name appears on the other side
of this Preferred Security Certificate)
- -----------------------------------------------------------------------------
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
D-3
<PAGE> 1
EXHIBIT 4.12
[FORM OF GUARANTEE AGREEMENT]
GUARANTEE AGREEMENT
Between
OLD NATIONAL BANCORP
as Guarantor, and
BANK ONE TRUST COMPANY, NA
as Trustee
dated as of
, 1999
<PAGE> 2
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.1. Definitions..............................................1
ARTICLE II
TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application.........................5
Section 2.2. List of Holders..........................................5
Section 2.3. Reports by the Guarantee Trustee.........................5
Section 2.4. Periodic Reports to the Guarantee Trustee................5
Section 2.5. Evidence of Compliance with Conditions Precedent.........6
Section 2.6. Events of Default; Waiver................................6
Section 2.7. Event of Default; Notice.................................6
Section 2.8. Conflicting Interests....................................6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
Section 3.1. Powers and Duties of the Guarantee Trustee...............6
Section 3.2. Certain Rights of Guarantee Trustee......................8
Section 3.3. Compensation; Fees.......................................9
ARTICLE IV
GUARANTEE TRUSTEE
Section 4.1. Guarantee Trustee: Eligibility..........................10
Section 4.2. Appointment, Removal and Resignation of the
Guarantee Trustee.......................................10
ARTICLE V
GUARANTEE
Section 5.1. Guarantee...............................................11
Section 5.2. Waiver of Notice and Demand.............................11
Section 5.3. Obligations Not Affected................................12
Section 5.4. Rights of Holders.......................................12
Section 5.5. Guarantee of Payment....................................13
Section 5.6. Subrogation.............................................13
Section 5.7. Independent Obligations.................................13
<PAGE> 3
ARTICLE VI
COVENANTS AND SUBORDINATION
Section 6.1. Subordination...........................................13
Section 6.2. Pari Passu Guarantees...................................14
ARTICLE VII
TERMINATION
Section 7.1. Termination.............................................14
ARTICLE VIII
INDEMNIFICATION
Section 8.1 Exculpation.............................................14
Section 8.2 Indemnification.........................................14
ARTICLE IX
MISCELLANEOUS
Section 9.1. Successors and Assigns..................................15
Section 9.2. Amendments..............................................15
Section 9.3. Notices.................................................15
Section 9.4. Benefit.................................................16
Section 9.5. Governing Law...........................................16
ii
<PAGE> 4
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of , 1999, is executed
and delivered by OLD NATIONAL BANCORP, a multi-bank holding company organized
under the laws of the State of Indiana (the "Guarantor"), and BANK ONE TRUST
COMPANY, NA, a national banking association organized under the laws of the
United States, as trustee (the "Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Preferred Securities (as
defined herein) of ONB Capital Trust , a Delaware statutory business trust
(the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of , 1999, the Guarantor, as Depositor, the
Property Trustee and the Delaware Trustee named therein and the Holders from
time to time of undivided beneficial ownership interests in the assets of the
Issuer, the Issuer is issuing up to $ aggregate Liquidation Amount
of its preferred securities (Liquidation Amount $25 per preferred security) (the
"Preferred Securities") and $ aggregate Liquidation Amount of its
common securities (the "Common Securities") representing undivided beneficial
ownership interests in the assets of the Issuer and having the terms set forth
in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the issuance of the Issuer's
Common Securities, will be used to purchase the Debentures of the Guarantor
which will be deposited with Bank One Trust Company, NA, as Property Trustee
under the Trust Agreement, as trust assets; and
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth herein, 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 Guarantee Agreement for
the benefit of the Holders of the Preferred Securities.
ARTICLE I
DEFINITIONS
Section 1.1. Definitions.
As used in this Guarantee Agreement, the terms set forth below shall,
unless the context otherwise requires, have the following meanings:
(a) capitalized terms used in this Guarantee Agreement but not
defined in the preamble or in this Section 1.1 have the meanings assigned to
them in the Trust Agreement;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
<PAGE> 5
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Guarantee Agreement unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa;
and
(g) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that an Affiliate of the
Guarantor shall not be deemed to include the Issuer. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee Agreement or a default by the
Guarantor in any other obligation hereunder that remains unremedied 30 days.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Securities, to the extent not paid or
made by or on behalf of the Issuer; (i) any accumulated and unpaid Distributions
required to be paid on such Securities, to the extent the Issuer shall have
funds on hand available therefor at such time, (ii) the redemption price,
including all accumulated and unpaid Distributions to the Redemption Date with
respect to the Securities called for redemption by the Issuer, to the extent the
Issuer shall have funds on hand available therefor at such time, and (iii) upon
a voluntary or involuntary termination, winding-up or liquidation of the Issuer,
unless Debentures are distributed to the Holders, the lesser of (a) the
aggregate of the Liquidation Amount of $25 per Security plus accumulated and
unpaid Distributions on the Securities to the date of payment to the extent the
Issuer shall have funds on hand available to make such payment at such time and
(b) the amount of assets of the Issuer remaining available for distribution to
Holders in liquidation of the Issuer (in either case, the "Liquidation
Distribution").
"Guarantee Trustee" means Bank One Trust Company, NA, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee Agreement and thereafter means each such
Successor Guarantee Trustee.
2
<PAGE> 6
"Holder" means any holder, as registered on the books and records of
the Issuer, of any 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 Affiliate of the Guarantor or the
Guarantee Trustee.
"Indebtedness" means, with respect to a Person, (i) the principal,
premium and interest, if any, in respect of (A) indebtedness of such Person for
money borrowed and (B) indebtedness evidenced by securities, notes, debentures,
bonds or other similar instruments issued by such Person; (ii) all capital lease
obligations of such Person; (iii) all obligations of such Person issued or
assumed as the deferred purchase price of property, all conditional sale
obligations of such Person and all obligations of such Person under any
conditional sale or title retention agreement (but excluding trade accounts
payable and accrued liabilities in the ordinary course of business); (iv) all
obligations, contingent or otherwise, of such Person in respect of any letters
of credit, banker's acceptance, security purchase facilities or similar credit
transactions; (v) all obligations in respect of interest rate swap, cap, floor,
collar or other agreements, interest rate future or option contracts, currency
swap agreements, currency future or option contracts and other similar
agreements; and (vi) all obligations of the type referred to in clauses (i)
through (v) of others for the payment of which such Person is responsible or
liable as obligor, guarantor or otherwise except for any indebtedness between or
among such Person and its Affiliates, including all other debt securities and
guarantees in respect of those debt securities, issued to (1) any ONB Trust or a
trustee of such ONB Trust or (2) any other trust, or a trustee of such trust,
partnership or other entity affiliated with the Company which is a financing
vehicle of the Company (a "Financing Entity") in connection with the issuance by
such Financing Entity of preferred securities or other securities that rank pari
passu with, or junior to, the Capital Securities.
"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 , 1999, between the
Guarantor and Bank One Trust Company, NA, as Indenture Trustee, as amended or
supplemented from time to time.
"Junior Subordinated Indebtedness" means all Indebtedness of the
Guarantor subordinate and junior to Subordinated Indebtedness and Senior
Indebtedness.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Preferred Securities" means,
except as provided by the Trust Indenture Act, more than 50% of the Liquidation
Amount of all the then Outstanding Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman of the Board, the President or a Senior Vice
President, and by the Treasurer, an Assistant Treasurer, the Comptroller, an
Assistant Comptroller, the Secretary or an Assistant Secretary of such Person,
and delivered to the Guarantee Trustee. Any Officers' Certificate
3
<PAGE> 7
delivered with respect to compliance with a condition or covenant provided for
in this Guarantee 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 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 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.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
Senior Vice President, any Vice President, any Assistant Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, any
Trust Officer or Assistant Trust officer or any other officer of the Corporate
Trust Department 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.
"Senior Indebtedness" means all Indebtedness of the Guarantor, 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 Subordinated Indebtedness or Junior Subordinated Indebtedness or
to other Indebtedness of the Guarantor which is pari passu with, or subordinated
to, Subordinated Indebtedness or Junior Subordinated Indebtedness.
"Subordinated Indebtedness" means all Indebtedness of the Guarantor
which is subordinated and junior in right of payment to Senior Indebtedness, but
does not include Junior Subordinated Indebtedness.
"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.
4
<PAGE> 8
ARTICLE II
TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 2.2. List of Holders.
(a) The Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee (a) semiannually, on or before June 30 and December 31 of each
year, a list, in such form as the Guarantee Trustee may reasonably require, of
the names and addresses of the Holders (the "List of Holders") as of a date not
more than 15 days prior to the delivery thereof, and (b) at such other times as
the Guarantee Trustee may request in writing, within 30 days after the receipt
by the Guarantor of any such request, a List of Holders as of a date not more
than 15 days prior to the time such list is furnished, in each case to the
extent such information is in the possession or control of the Guarantor and is
not identical to a previously supplied List of Holders or has not otherwise been
received by the Guarantee Trustee in its capacity as such. 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
Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
Section 2.3. Reports by the Guarantee Trustee.
Not later than 60 days following May 15 of each year, commencing May
15, 2000, the Guarantee Trustee shall provide to the Holders 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.
Section 2.4. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the Securities
and Exchange Commission and the Holders such documents, reports and information,
if any, as required by Section 314 of the Trust Indenture Act 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.
If the Guarantee Trustee is also acting as the Property Trustee under the Trust
Agreement such reports will not be required hereunder.
5
<PAGE> 9
Section 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee 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) may be given in the form of an
Officers' Certificate.
Section 2.6. Events of Default; Waiver.
The Holders of a Majority in Liquidation Amount of the Preferred
Securities may by vote, on behalf of the Holders, 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 Guarantee Agreement, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent therefrom.
Section 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of
an Event of Default known to the Guarantee Trustee, transmit by mail, first
class postage prepaid, to the Holders, notices of all such Events of Default
unless such defaults have been cured or waived before the giving of such notice;
provided, that, except in the case of a default in the payment of a Guarantee
Payment, the Guarantee 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 directors and/or Responsible Officers of the Guarantee Trustee in
good faith determines that the withholding of such notice is in the interests of
the Holders.
(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 a Responsible Officer charged with the administration of the Trust
Agreement shall have obtained written notice, of such Event of Default.
Section 2.8. Conflicting Interests.
The Trust Agreement and the Indenture shall be deemed to be
specifically described in this Guarantee Agreement for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
Section 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for
the benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except a Holder exercising his or her rights
pursuant to Section 5.4(iv) or to a Successor
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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, upon acceptance by such Successor Guarantee Trustee of its appointment
hereunder, 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 has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of the
Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing or waiver of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Guarantee Agreement, and no implied covenants shall be read into
this Guarantee Agreement against the Guarantee Trustee. In case an Event of
Default has occurred (that has not been cured or waived pursuant to Section
2.6), the Guarantee Trustee shall exercise such of the rights and powers vested
in it by this Guarantee Agreement, 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 Guarantee Agreement 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 Guarantee Agreement, and the Guarantee Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Guarantee
Agreement; 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 Guarantee Agreement; but in the case
of any such certificates or opinions that by any provision
hereof or of the Trust Indenture Act 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
Guarantee Agreement;
(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
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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 Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement 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 Guarantee Agreement or adequate indemnity
against such risk or liability is not reasonably assured to it.
Section 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may 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 reasonably 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 Guarantee Agreement shall be sufficiently evidenced by an
Officer's Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a matter
be proved or established before taking, suffering or omitting to take
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 rely upon an Officers' Certificate which, upon
receipt of such request from the Guarantee Trustee, shall be promptly
delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel, and
the written advice or opinion of such legal counsel with respect to
legal matters shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or opinion.
Such legal counsel may be legal counsel to the Guarantor or any of its
Affiliates and may be one of its employees. The Guarantee Trustee shall
have the right at any time to seek instructions concerning the
administration of this Guarantee Agreement from any court of competent
jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holder, unless such Holder
shall have provided to the Guarantee Trustee such adequate security and
indemnity as would satisfy a reasonable person in the position of the
Guarantee Trustee, against the costs, expenses (including attorneys'
fees and
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expenses) 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)(v) 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
Guarantee Agreement.
(vi) 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 Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit.
(vii) The Guarantee 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 Guarantee Trustee shall not
be responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care by it hereunder.
(viii) Whenever in the administration of this Guarantee
Agreement 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 (A) may request
instructions from the Holders of a Majority in Liquidation Amount of
the Securities, (B) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (C)
shall be protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement 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 to act in accordance with such power and
authority.
Section 3.3. Compensation; Fees.
The Guarantor agrees:
(a) to pay to the Guarantee Trustee from time to time such reasonable
compensation for all services rendered by it hereunder as may be agreed by the
Guarantor and the Guarantee Trustee from time to time (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust); and
(b) except as otherwise expressly provided herein, to reimburse the
Guarantee Trustee upon request for all reasonable expenses, disbursements and
advances incurred or made by the Guarantee Trustee in accordance with any
provision of this Guarantee 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 its negligence or bad
faith.
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ARTICLE IV
GUARANTEE TRUSTEE
Section 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 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 and shall be a corporation meeting the
requirements of Section 310(a) of the Trust Indenture Act. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining
authority, then, for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, 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.
Section 4.2. Appointment, Removal and Resignation of the Guarantee
Trustee.
(a) Subject to Section 4.2(c), unless a Debenture Event of Default
shall have occurred and is continuing, the Guarantee Trustee may be appointed or
removed at any time by the Guarantor, and, if a Debenture Event of Default
shall have occurred and is continuing, the Holders of a Majority in Liquidation
Amount of the Preferred Securities may appoint or remove the Guarantee Trustee
at any time.
(b) Subject to Section 4.2(c), the 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 and
the Holders, which resignation shall not take effect until the Guarantee Trustee
has appointed a Successor Guarantee Trustee. The Guarantee Trustee shall appoint
a successor by requesting from at least three Persons meeting the requirements
of Section 4.1(a) their expenses and charges to serve as the Guarantee Trustee,
and selecting the Person who agrees to the lowest expenses and charges.
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(c) The Guarantee Trustee appointed hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed and shall have accepted
such appointment. No removal or resignation of a Guarantee Trustee shall be
effective 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 and, in the case of any
resignation, 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 Holders and the Guarantor of a notice of resignation, the
resigning Guarantee Trustee may petition, at the expense of the Guarantor, any
court of competent jurisdiction for appointment of a Successor Guarantee
Trustee. Such court may thereupon, after prescribing such notice, as it may deem
proper, appoint a Successor Guarantee Trustee.
(e) 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, or if a Guarantee
Trustee shall be removed or become incapable of acting as Guarantee Trustee and
a replacement shall not be appointed prior to such resignation or removal, or if
a vacancy shall occur in the office of Guarantee Trustee for any cause, the
Holders of the Preferred Securities, by the action of the Holders of record of
not less than 25% in aggregate Liquidation Amount of the Preferred Securities
then Outstanding delivered to such Guarantee Trustee, may appoint a Successor
Guarantee Trustee or Trustees. If no successor Guarantee Trustee shall have been
so appointed by the Holders of the Preferred Securities and accepted
appointments, any Holder, on behalf of such Holder and all other similarly
situated, or any other Guarantee Trustee, may petition any court of competent
jurisdiction for the appointment of a successor Guarantee Trustee.
ARTICLE V
GUARANTEE
Section 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 or on behalf of the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim which the Issuer may have or assert other than
the defense of payment. 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 Issuer to pay such amounts to the Holders.
Section 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of the Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the
Guarantee Trustee, Issuer 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.
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Section 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee 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 release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions (other than an extension of time for payment of
Distributions that results from the deferral of any interest payment date on the
Debentures as so provided in the Indenture), 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;
(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 Issuer 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 Issuer or any of the assets of
the Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) 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 the consent of, the Guarantor with respect to the happening of any of the
foregoing.
Section 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement
will be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders of a Majority in
Liquidation Amount of the Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee in respect of this Guarantee Agreement or exercising any
trust or power
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conferred upon the Guarantee Trustee under this Guarantee Agreement; and (iv) if
the Guarantee Trustee fails to enforce this Guarantee Agreement after a Holder
has made a written request for the Guarantee Trustee to do so, any Holder may,
to the extent permitted by law, institute a legal proceeding directly against
the Guarantor to enforce its rights under this Guarantee Agreement, without
first instituting a legal proceeding against the Guarantee Trustee, the Issuer
or any other Person. Notwithstanding the foregoing, if the Guarantor has failed
to make a Guarantee Payment, a Holder may directly institute a proceeding
against the Guarantor for enforcement of this Guarantee Agreement for such
payment. The Guarantor waives, any right or remedy to require that any action on
this Guarantee Agreement be brought first against the Issuer or any other Person
or entity before proceeding directly against the Guarantor.
Section 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by payment of
the Guarantee Payments in full (without duplication of amounts theretofore paid
by the Issuer) or upon distribution of Debentures to Holders as provided in the
Trust Agreement.
Section 5.6. Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement and shall have the right to waive
payment by the Issuer pursuant to Section 5.1; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Guarantee Agreement, if at the time of any
such payment, any amounts are due and unpaid under this Guarantee Agreement. 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.
Section 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Securities and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Guarantee Agreement
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
COVENANTS AND SUBORDINATION
Section 6.1. Subordination.
This Guarantee Agreement will constitute an unsecured obligation of the
Guarantor and will rank subordinate and junior in right of payment to all Senior
Indebtedness and Subordinated Indebtedness of the Guarantor.
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Section 6.2. Pari Passu Guarantees.
This Guarantee Agreement shall rank pari passu with any similar
Guarantee Agreements issued by the Guarantor on behalf of the holders of
Preferred Securities issued by an ONB Trust (as defined in the Trust Agreement).
ARTICLE VII
TERMINATION
Section 7.1. Termination.
This Guarantee Agreement shall terminate and be of no further force and
effect upon (i) full payment of the Redemption Price of all Preferred
Securities, (ii) the distribution of Debentures to the Holders in exchange for
all of the Preferred Securities or (iii) full payment of the amounts payable in
accordance with the Trust Agreement upon liquidation of the Issuer.
Notwithstanding the foregoing, this Guarantee Agreement will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
must restore payment of any sums paid with respect to Preferred Securities or
this Guarantee Agreement.
ARTICLE VIII
INDEMNIFICATION
Section 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 Guarantee
Agreement 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
Guarantee Agreement or by law, except that an Indemnified Person shall be liable
for any such loss, damage or claim incurred by reason of such Indemnified
Person's negligence or willful misconduct with respect to such acts or
omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the 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 might properly be paid.
Section 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 or bad faith on its part, arising out of or in
connection with the acceptance or administration of
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the trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The provisions of this
Section 8.2 shall survive the termination of this Guarantee Agreement or the
resignation or removal of the Guarantee Trustee.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Securities
then outstanding. Except in connection with a consolidation, merger or sale
involving the Guarantor that is permitted under Article 5 of the Indenture and
pursuant to which the assignee agrees in writing to perform the Guarantor's
obligations hereunder, the Guarantor shall not assign its obligations hereunder.
Section 9.2. Amendments.
Except with respect to any changes which do not adversely affect the
rights of the Holders in any material respect (in which case no consent of the
Holders will be required), this Guarantee Agreement may only be amended with the
prior approval of the Holders of not less than a Majority in liquidation
preference of all the outstanding Preferred Securities. The provisions of
Article VI of the Trust Agreement concerning meetings of the Holders shall apply
to the giving of such approval.
Section 9.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class 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 Guarantor and the Holders):
Bank One Trust Company, NA
1 North State Street, Ninth Floor
Chicago, Illinois 60670-0126
Facsimile No.: 312 407 1708
Attention: Corporate Trust Administration
(b) if given to the Guarantor, to the address set forth below or such
other address, facsimile number or to the attention of such other Person as the
Guarantor may give notice to the Holders of the Preferred Securities:
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Old National Bancorp
420 Main Street
Evansville, Indiana 47708
Facsimile No.: 812-464-1567
Attention: Corporate Secretary
(c) if given to the Issuer, in care of the Guarantee Trustee, at
the address of the Guarantee Trustee as set forth in clause (a) above, with a
copy to::
ONB Capital Trust I
c/o Old National Bancorp
420 Main Street
Evansville, Indiana 47708
Facsimile No.: 812-464-1567
Attention: Corporate Secretary
(d) if given to any Holder, at the address set forth on the books
and records of the Issuer.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
Section 9.4. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and
is not separately transferable from the Securities.
Section 9.5. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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THIS GUARANTEE AGREEMENT is executed as of the date first above
written.
OLD NATIONAL BANCORP
By:
----------------------------
Name:
Title:
BANK ONE TRUST COMPANY, NA,
as Guarantee Trustee
By:
----------------------------
Name:
Title:
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EXHIBIT 5.1
[LETTERHEAD OF KRIEG DEVAULT ALEXANDER & CAPEHART, LLP]
September 22, 1999
Board of Directors
Old National Bancorp
420 Main Street
Evansville, Indiana 47708
RE: Issuance of up to $200,000,000 of Offered Securities
Lady and Gentlemen:
This opinion is delivered in connection with the Registration Statement
on Form S-3 (the "Registration Statement") filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Act") by
Old National Bancorp, an Indiana corporation (the "Company"), and ONB Capital
Trust I, ONB Capital Trust II, ONB Capital Trust III or ONB Capital Trust IV,
each a business trust formed under the Business Trust Act of the State of
Delaware (each, a "ONB Trust", collectively, the "ONB Trusts" and together with
the Company, the "Registrants") in connection with the registration by the
Registrants under the Act of up to an aggregate of $200,000,000 of (i) unsecured
debt securities of the Company, (ii) preferred securities of each of the ONB
Trusts (the "Preferred Securities"), and (iii) guarantees by the Company of any
Preferred Securities issued by each ONB Trust pursuant to a Guarantee Agreement
to be executed by the Company (the "Guarantees"). The Debt Securities, the
Preferred Securities and the Guarantees are collectively referred to herein as
the "Offered Securities."
We have examined (i) the Registration Statement; (ii) the Company's
Restated Articles of Incorporation and Bylaws, as amended to date; (iii) the
proposed form of Indenture for Debt Securities (including, as exhibits, proposed
forms of Registered Security and Bearer Security thereunder) from the Company to
Bank One, N.A., as Trustee (the "Indenture"), providing for the issuance of the
Debt Securities from time to time in one or more series pursuant to the terms of
one or more Securities Resolutions (as defined in the Indenture) creating such
series; (iv) other exhibits to the Registration Statement relating to the
Offered Securities; (v) corporate proceedings of the Company relating to the
Registration Statement, the Indenture and the transactions contemplated thereby;
and (vi) such other documents, and such matters of law, as we have deemed
necessary in order to render this opinion.
The basis of and subject to the foregoing, we advise you that, in our
opinion, when (i) the Registration Statement has become effective under the Act,
(ii) the terms of any class or series of Offered Securities have been authorized
by appropriate action of the Company in a
<PAGE> 2
Board of Directors
Old National Bancorp
September 22, 1999
Page 2
manner that would not violate any applicable law or result in a default under or
breach of any agreement or instrument binding upon the Company and so as to
comply with any requirement or restriction imposed by a court or a governmental
or regulatory body having jurisdiction over the Company, (iii) any such class or
series of Offered Securities has been duly issued and sold, and payment has been
received for such Offered Securities in the manner contemplated in the
Registration Statement and any prospectus supplement relating thereto, then (a)
the Debt Securities and the Guarantees will be duly authorized and legally
issued and will constitute valid and binding obligations of the Company
enforceable in accordance with their respective terms subject to (x) bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium and other similar
laws now or hereafter in effect relating to or affecting creditors' rights
generally, (y) general principles of equity (regardless of whether considered in
a proceeding at law or in equity) and (z) the qualification that the remedy of
specific performance and injunctive or other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before which
any proceeding may be brought.
As to the legality of the Preferred Securities to be issued by the ONB
Trusts, you are receiving the opinion of Richards, Layton & Fingers, special
Delaware counsel to the ONB Trusts and the Company.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the reference made to us in the Registration
Statement and in the Prospectus and any Prospectus Supplement under the caption
"Legal Matters." In giving this consent, we do not thereby admit that we are
"experts" within the meaning of Section 11 of the Act, or that we come within
the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ KRIEG DeVAULT ALEXANDER & CAPEHART, LLP
-------------------------------------------
Krieg Devault Alexander & Capehart, LLP
<PAGE> 1
EXHIBIT 5.2
September 22, 1999
ONB Capital Trust I
c/o Old National Bancorp
420 Main Street
Evansville, Indiana 47708
Re: ONB Capital Trust I
Ladies and Gentlemen:
We have acted as special Delaware counsel for Old National
Bancorp, a multi-bank holding company organized under the laws of Indiana (the
"Company"), and ONB Capital Trust I, a Delaware business trust (the "Trust"), in
connection with the matters set forth herein. At your request, this opinion is
being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, as filed with the
Secretary of State of the State of Delaware on September 15, 1999 (the
"Certificate");
(b) The Trust Agreement of the Trust, dated as of September
15, 1999, by and between the Company and Bank One Delaware, Inc., a Delaware
corporation;
(c) The Registration Statement (the "Registration Statement")
on Form S-3, including a preliminary prospectus with respect to the Trust (the
"Prospectus"), relating to the Preferred Securities of the Trust representing
preferred beneficial interests in the Trust (each, a "Preferred Security" and
collectively, the "Preferred Securities"), as filed by the Company and the Trust
with the Securities and Exchange Commission on September 22, 1999;
(d) A form of Amended and Restated Trust Agreement for the
<PAGE> 2
ONB Capital Trust I
September 22, 1999
Page 2
Trust, to be entered into among the Company, the trustees of the Trust named
therein, and the holders, from time to time, of the undivided beneficial
interests in the assets of the Trust (including Exhibits A, C and D thereto)
(the "Trust Agreement"), attached as an exhibit to the Registration Statement;
and
(e) A Certificate of Good Standing for the Trust, dated
September 17, 1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Trust Agreement and the Certificate are in full force and effect and have not
been amended, (ii) except to the extent provided in paragraph 1 below, the due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trust (collectively, the "Preferred
Security Holders") of a Preferred Securities Certificate for such Preferred
Security and the payment for such Preferred Security, in accordance with the
Trust Agreement and the Registration Statement, (vii) that the Preferred
<PAGE> 3
ONB Capital Trust I
September 22, 1999
Page 3
Securities are issued and sold to the Preferred Security Holders in accordance
with the Trust Agreement and the Registration Statement, and (viii) that Bank
One Delaware, Inc. complies with Section 3807(a) of the Delaware Business Trust
Act, 12 Del.C. ss. 3801, et seq. (the "Delaware Business Trust Act"). We have
not participated in the preparation of the Registration Statement and assume no
responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities and blue sky laws of the State of Delaware), and we
have not considered and express no opinion on the laws of any other
jurisdiction, including federal laws and rules and regulations relating thereto.
Our opinions are rendered only with respect to Delaware laws and rules,
regulations and orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities of the Trust will represent valid
and, subject to the qualifications set forth in paragraph 3 below, fully paid
and nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will 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. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Matters" in the Prospectus. In giving the foregoing consents, we do not thereby
admit that we come within the category of persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Richards, Layton, & Finger, P.A.
------------------------------------
WF/CDR/rmc
<PAGE> 1
EXHIBIT 5.3
September 22, 1999
ONB Capital Trust II
c/o Old National Bancorp
420 Main Street
Evansville, Indiana 47708
Re: ONB Capital Trust II
Ladies and Gentlemen:
We have acted as special Delaware counsel for Old
National Bancorp, a multi-bank holding company organized under the laws of
Indiana (the "Company"), and ONB Capital Trust II, a Delaware business trust
(the "Trust"), in connection with the matters set forth herein. At your
request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, as filed with the
Secretary of State of the State of Delaware on September 15, 1999 (the
"Certificate");
(b) The Trust Agreement of the Trust, dated as of September
15, 1999, by and between the Company and Bank One Delaware, Inc., a Delaware
corporation;
(c) The Registration Statement (the "Registration Statement")
on Form S-3, including a preliminary prospectus with respect to the Trust (the
"Prospectus"), relating to the Preferred Securities of the Trust representing
preferred beneficial interests in the Trust (each, a "Preferred Security" and
collectively, the "Preferred Securities"), as filed by the Company and the Trust
with the Securities and Exchange Commission on September 22, 1999;
(d) A form of Amended and Restated Trust Agreement for the
<PAGE> 2
ONB Capital Trust II
September 22, 1999
Page 2
Trust, to be entered into among the Company, the trustees of the Trust named
therein, and the holders, from time to time, of the undivided beneficial
interests in the assets of the Trust (including Exhibits A, C and D thereto)
(the "Trust Agreement"), attached as an exhibit to the Registration Statement;
and
(e) A Certificate of Good Standing for the Trust, dated
September 17, 1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Trust Agreement and the Certificate are in full force and effect and have not
been amended, (ii) except to the extent provided in paragraph 1 below, the due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trust (collectively, the "Preferred
Security Holders") of a Preferred Securities Certificate for such Preferred
Security and the payment for such Preferred Security, in accordance with the
Trust Agreement and the Registration Statement, (vii) that the Preferred
<PAGE> 3
ONB Capital Trust II
September 22, 1999
Page 3
Securities are issued and sold to the Preferred Security Holders in accordance
with the Trust Agreement and the Registration Statement, and (viii) that Bank
One Delaware, Inc. complies with Section 3807(a) of the Delaware Business Trust
Act, 12 Del.C. ss. 3801, et seq. (the "Delaware Business Trust Act"). We have
not participated in the preparation of the Registration Statement and assume no
responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities and blue sky laws of the State of Delaware), and we
have not considered and express no opinion on the laws of any other
jurisdiction, including federal laws and rules and regulations relating thereto.
Our opinions are rendered only with respect to Delaware laws and rules,
regulations and orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities of the Trust will represent valid
and, subject to the qualifications set forth in paragraph 3 below, fully paid
and nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will 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. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Matters" in the Prospectus. In giving the foregoing consents, we do not thereby
admit that we come within the category of persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Richards, Layton, & Finger, P.A.
------------------------------------
WF/CDR/rmc
<PAGE> 1
EXHIBIT 5.4
September 22, 1999
ONB Capital Trust III
c/o Old National Bancorp
420 Main Street
Evansville, Indiana 47708
Re: ONB Capital Trust III
Ladies and Gentlemen:
We have acted as special Delaware counsel for Old National
Bancorp, a multi-bank holding company organized under the laws of Indiana (the
"Company"), and ONB Capital Trust III, a Delaware business trust (the "Trust"),
in connection with the matters set forth herein. At your request, this opinion
is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, as filed with the
Secretary of State of the State of Delaware on September 15, 1999 (the
"Certificate");
(b) The Trust Agreement of the Trust, dated as of September
15, 1999, by and between the Company and Bank One Delaware, Inc., a Delaware
corporation;
(c) The Registration Statement (the "Registration Statement")
on Form S-3, including a preliminary prospectus with respect to the Trust (the
"Prospectus"), relating to the Preferred Securities of the Trust representing
preferred beneficial interests in the Trust (each, a "Preferred Security" and
collectively, the "Preferred Securities"), as filed by the Company and the Trust
with the Securities and Exchange Commission on September 22, 1999;
(d) A form of Amended and Restated Trust Agreement for the
<PAGE> 2
ONB Capital Trust III
September 22, 1999
Page 2
Trust, to be entered into among the Company, the trustees of the Trust named
therein, and the holders, from time to time, of the undivided beneficial
interests in the assets of the Trust (including Exhibits A, C and D thereto)
(the "Trust Agreement"), attached as an exhibit to the Registration Statement;
and
(e) A Certificate of Good Standing for the Trust, dated
September 17, 1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Trust Agreement and the Certificate are in full force and effect and have not
been amended, (ii) except to the extent provided in paragraph 1 below, the due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trust (collectively, the "Preferred
Security Holders") of a Preferred Securities Certificate for such Preferred
Security and the payment for such Preferred Security, in accordance with the
Trust Agreement and the Registration Statement, (vii) that the Preferred
<PAGE> 3
ONB Capital Trust III
September 22, 1999
Page 3
Securities are issued and sold to the Preferred Security Holders in accordance
with the Trust Agreement and the Registration Statement, and (viii) that Bank
One Delaware, Inc. complies with Section 3807(a) of the Delaware Business Trust
Act, 12 Del.C. ss. 3801, et seq. (the "Delaware Business Trust Act"). We have
not participated in the preparation of the Registration Statement and assume no
responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities and blue sky laws of the State of Delaware), and we
have not considered and express no opinion on the laws of any other
jurisdiction, including federal laws and rules and regulations relating thereto.
Our opinions are rendered only with respect to Delaware laws and rules,
regulations and orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities of the Trust will represent valid
and, subject to the qualifications set forth in paragraph 3 below, fully paid
and nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will 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. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Matters" in the Prospectus. In giving the foregoing consents, we do not thereby
admit that we come within the category of persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Richards, Layton, & Finger, P.A.
------------------------------------
WF/CDR/rmc
<PAGE> 1
EXHIBIT 5.5
September 22, 1999
ONB Capital Trust IV
c/o Old National Bancorp
420 Main Street
Evansville, Indiana 47708
Re: ONB Capital Trust IV
Ladies and Gentlemen:
We have acted as special Delaware counsel for Old National
Bancorp, a multi-bank holding company organized under the laws of Indiana (the
"Company"), and ONB Capital Trust IV, a Delaware business trust (the "Trust"),
in connection with the matters set forth herein. At your request, this opinion
is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, as filed with the
Secretary of State of the State of Delaware on September 15, 1999 (the
"Certificate");
(b) The Trust Agreement of the Trust, dated as of September
15, 1999, by and between the Company and Bank One Delaware, Inc., a Delaware
corporation;
(c) The Registration Statement (the "Registration Statement")
on Form S-3, including a preliminary prospectus with respect to the Trust (the
"Prospectus"), relating to the Preferred Securities of the Trust representing
preferred beneficial interests in the Trust (each, a "Preferred Security" and
collectively, the "Preferred Securities"), as filed by the Company and the Trust
with the Securities and Exchange Commission on September 22, 1999;
(d) A form of Amended and Restated Trust Agreement for the
<PAGE> 2
ONB Capital Trust IV
September 22, 1999
Page 2
Trust, to be entered into among the Company, the trustees of the Trust named
therein, and the holders, from time to time, of the undivided beneficial
interests in the assets of the Trust (including Exhibits A, C and D thereto)
(the "Trust Agreement"), attached as an exhibit to the Registration Statement;
and
(e) A Certificate of Good Standing for the Trust, dated
September 17, 1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Trust Agreement and the Certificate are in full force and effect and have not
been amended, (ii) except to the extent provided in paragraph 1 below, the due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trust (collectively, the "Preferred
Security Holders") of a Preferred Securities Certificate for such Preferred
Security and the payment for such Preferred Security, in accordance with the
Trust Agreement and the Registration Statement, (vii) that the Preferred
<PAGE> 3
ONB Capital Trust IV
September 22, 1999
Page 3
Securities are issued and sold to the Preferred Security Holders in accordance
with the Trust Agreement and the Registration Statement, and (viii) that Bank
One Delaware, Inc. complies with Section 3807(a) of the Delaware Business Trust
Act, 12 Del. C. Section 3801, et seq. (the "Delaware Business Trust Act"). We
have not participated in the preparation of the Registration Statement and
assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities and blue sky laws of the State of Delaware), and we
have not considered and express no opinion on the laws of any other
jurisdiction, including federal laws and rules and regulations relating thereto.
Our opinions are rendered only with respect to Delaware laws and rules,
regulations and orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities of the Trust will represent valid
and, subject to the qualifications set forth in paragraph 3 below, fully paid
and nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will 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. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Matters" in the Prospectus. In giving the foregoing consents, we do not thereby
admit that we come within the category of persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Richards, Layton, & Finger, P.A.
------------------------------------
WF/CDR/rmc
<PAGE> 1
EXHIBIT 8.1
[Letterhead of Krieg DeVault Alexander & Capehart, LLP]
September 22, 1999
Old National Bancorp
420 Main Street
Evansville, IN 47708
ONB Capital Trust I
420 Main Street
Evansville, IN 47708
Ladies and Gentlemen:
We refer to the proposed issuance of preferred securities by the ONB
Capital Trust I, a Delaware statutory business trust, formed by Old National
Bancorp ("ONB"), an Indiana corporation. You have requested our opinion
regarding the characterization of ONB Capital Trust I for federal income tax
purposes and the discussion of certain of the material United States federal
income tax consequences of purchasing, holding and selling the preferred
securities of ONB Capital Trust I that appear under the caption "UNITED STATES
FEDERAL INCOME TAXATION" in the form of Prospectus Supplement to the Prospectus
relating to the Registration Statement on the Form S-3 filed by ONB and ONB
Capital Trust I with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Act").
In rendering our opinion, we have reviewed the Registration Statement,
as amended, the Prospectus and Prospectus Supplement, the form of Amended and
Restated Trust Agreement for ONB Capital Trust I, the form of the Guarantee
Agreement for ONB Capital Trust I, and the form of the Indenture for debt
securities relating to the offering of the preferred securities, forms of which
were included in or filed as exhibits to the Registration Statement, and such
other materials as we have deemed necessary or appropriate as a basis for our
opinion. In addition, we have considered the applicable provisions of the
Internal Revenue Code of 1986, as amended, Treasury Regulations, pertinent
judicial authorities, rulings of the Internal Revenue Service, and such other
authorities as we have considered relevant.
Based upon the foregoing, and assuming full and complete compliance
with the terms of the Amended and Restated Trust Agreement, Guarantee Agreement
and Indenture (and other relevant documents) it is our opinion that:
(1) ONB Capital Trust I will be characterized for United
States federal income tax purposes as a grantor trust and will not be taxable
as a corporation.
<PAGE> 2
Old National Bancorp
September 22, 1999
Page 2
(2) The junior subordinated debentures to be issued by ONB to
ONB Capital Trust will be classified for United States federal income tax
purposes as indebtedness of ONB.
The opinions expressed herein represent our conclusions as to the
application of existing federal income tax law to the facts as presented to us
relating to the preferred securities, and we give no assurance that changes in
such law or any interpretation thereof will not affect the opinions expressed
by us. Moreover, there can be no assurance that this opinion will not be
challenged by the Internal Revenue Service or that a court considering the
issues will not hold contrary to such opinion. We express no opinion on the
treatment of the preferred securities under the income tax laws of any state or
other taxing jurisdiction. We assume no obligation to advise you of any
changes concerning the above, whether or not deemed material, which may
hereafter come or be brought to our attention. The opinions expressed herein
are a matter of professional judgment and are not a guarantee of result.
This opinion is being furnished in connection with the Registration
Statement. Any variation or difference in the facts from those set forth or
assumed either herein or in the Registration Statement may affect the
conclusions stated herein.
This opinion is addressed to you and is solely for your use in
connection with the issuance of the preferred securities. We assume no
professional responsibility to any other person or entity whatsoever.
Accordingly, the opinions expressed herein are not to be utilized or quoted by,
or delivered or disclosed to, in whole or in part, any other person,
corporation, entity or governmental authority without, in each instance, our
prior written consent.
We hereby consent to the use of our name under the caption "UNITED
STATES FEDERAL INCOME TAXATION" in the Prospectus Supplement and to the filing
of this opinion as an exhibit to the Registration Statement. In giving this
consent, we do not admit that we are "experts" within the meaning of Section 11
of the Act or that we come within the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the
Commission thereunder.
Very truly yours,
/s/ KRIEG DEVAULT ALEXANDER & CAPEHART, LLP
-------------------------------------------
Krieg DeVault Alexander & Capehart, LLP
<PAGE> 1
EXHIBIT 12.1
STATEMENT RE: COMPUTATION OF RATIO
OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Six Months
Ended
June 30, Year Ended December 31,
---------- -----------------------------------------------
1999 1998 1997 1996 1995 1994
---------- ------- ------- ------- -------- -------
<S> <C> <C> <C> <C> <C> <C>
Fixed Charge Ratio
Interest Expense on Deposits 87,571 180,724 176,789 169,847 165,280 129,766
Interest Expense on other borrowings 31,628 50,890 40,079 26,442 26,570 20,043
Building rent 1,125 2,102 2,217 2,106 2,040 1,902
Equipment rent 1,074 2,061 1,850 1,810 1,813 1,428
------------------------------------------------------------
2,199 4,163 4,067 3,916 2,200 2,188
============================================================
Rental Expense 67% 1,473 2,789 2,725 2,624 1,474 1,466
Imputed Interest Exp 33% 726 1,374 1,342 1,292 726 722
Fixed charges excluding interest on deposits 32,354 52,264 41,421 27,734 27,296 20,765
Fixed charges including interest on deposits 119,925 232,988 218,210 197,581 192,576 150,531
EARNINGS
Net income before taxes 64,500 118,095 110,919 102,795 92,165 80,875
+fixed charges excluding interest on deposits 32,354 52,264 41,421 27,734 27,296 20,765
------------------------------------------------------------
96,854 170,359 152,340 130,529 119,461 101,640
============================================================
EARNINGS
Net income before taxes 64,500 118,095 110,919 102,795 92,165 80,875
+fixed charges including interest on deposits 119,925 232,988 218,210 197,581 192,576 150,531
------------------------------------------------------------
184,425 351,083 329,129 300,376 284,741 231,406
============================================================
RATIO OF EARNINGS TO FIXED CHARGES
Excluding interest on deposits 299.4 326.0 367.8 470.7 437.7 489.5
Including interest on deposits 153.8 150.7 150.8 152.0 147.9 153.7
</TABLE>
The ratio of earnings to fixed charges for Old National has been computed by
dividing earnings by fixed charges. "Earnings" include pretax income from
continuing operations plus fixed charges. "Fixed charges" include the total of
interest expense, capitalized interest expensed, or capitalized amortization of
debt expense and any related discount or premium, and such portion of rental
expense that is representative of the interest factor of each such rental.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated January 27, 1999
incorporated by reference in Old National Bancorp's Form 10-K for the year
ended December 31, 1998 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Indianapolis, Indiana,
September 22, 1999.
<PAGE> 1
EXHIBIT 25.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of Old
National Bancorp, an Indiana corporation (the "Company"), does hereby constitute
and appoint John S. Poelker, Christopher Wolking and Jeffrey L. Knight, and each
of them, the true and lawful attorneys-in-fact and agents of the undersigned, to
do or cause to be done any and all acts and things and to execute any and all
instruments and documents which said attorneys-in-fact and agents, or any of
them, may deem advisable or necessary to enable the Company to comply with the
Securities Act of 1933, as amended (the "Securities Act"), and any rules,
regulations and requirements of the Securities and Exchange Commission in
respect thereof, in connection with the registration of the securities of the
Company being registered on the Registration Statement on Form S-3 to which this
power of attorney is filed as an exhibit (the "Securities"), including
specifically, but without limiting the generality of the foregoing, power and
authority to sign, in the name and on behalf of the undersigned as a director of
the Company, the Registration Statement on Form S-3 to which this power of
attorney is filed as an exhibit, a Registration Statement under Rule 462(b) of
the Securities Act, or another appropriate form in respect of the registration
of the Securities, and any and all amendments thereto, including post-effective
amendments, and any instruments, contracts, documents or other writings of which
the originals or copies thereof are to be filed as a part of, or in connection
with, any such Registration Statement or amendments, and to file or cause to be
filed the same with the Securities and Exchange Commission, and to effect any
and all applications and other instruments in the name and on behalf of the
undersigned which said attorneys-in-fact and agents, or any of them, deem
advisable in order to qualify or register the Securities under the securities
laws of any state; and the undersigned does hereby approve, ratify and confirm
all actions heretofore or hereafter lawfully taken, or caused to be taken, by
said attorneys-in-fact or agents, or any of them, by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
day and year indicated below.
/s/DAVID L. BARNING
- ----------------------------
(Signature)
David L. Barning
- ----------------------------
(Printed)
Date: September 17, 1999
<PAGE> 2
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of Old
National Bancorp, an Indiana corporation (the "Company"), does hereby constitute
and appoint John S. Poelker, Christopher Wolking and Jeffrey L. Knight, and each
of them, the true and lawful attorneys-in-fact and agents of the undersigned, to
do or cause to be done any and all acts and things and to execute any and all
instruments and documents which said attorneys-in-fact and agents, or any of
them, may deem advisable or necessary to enable the Company to comply with the
Securities Act of 1933, as amended (the "Securities Act"), and any rules,
regulations and requirements of the Securities and Exchange Commission in
respect thereof, in connection with the registration of the securities of the
Company being registered on the Registration Statement on Form S-3 to which this
power of attorney is filed as an exhibit (the "Securities"), including
specifically, but without limiting the generality of the foregoing, power and
authority to sign, in the name and on behalf of the undersigned as a director of
the Company, the Registration Statement on Form S-3 to which this power of
attorney is filed as an exhibit, a Registration Statement under Rule 462(b) of
the Securities Act, or another appropriate form in respect of the registration
of the Securities, and any and all amendments thereto, including post-effective
amendments, and any instruments, contracts, documents or other writings of which
the originals or copies thereof are to be filed as a part of, or in connection
with, any such Registration Statement or amendments, and to file or cause to be
filed the same with the Securities and Exchange Commission, and to effect any
and all applications and other instruments in the name and on behalf of the
undersigned which said attorneys-in-fact and agents, or any of them, deem
advisable in order to qualify or register the Securities under the securities
laws of any state; and the undersigned does hereby approve, ratify and confirm
all actions heretofore or hereafter lawfully taken, or caused to be taken, by
said attorneys-in-fact or agents, or any of them, by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
day and year indicated below.
/s/RICHARD J. BOND
- ----------------------------
(Signature)
Richard J. Bond
- ----------------------------
(Printed)
Date: September 17, 1999
<PAGE> 3
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of Old
National Bancorp, an Indiana corporation (the "Company"), does hereby constitute
and appoint John S. Poelker, Christopher Wolking and Jeffrey L. Knight, and each
of them, the true and lawful attorneys-in-fact and agents of the undersigned, to
do or cause to be done any and all acts and things and to execute any and all
instruments and documents which said attorneys-in-fact and agents, or any of
them, may deem advisable or necessary to enable the Company to comply with the
Securities Act of 1933, as amended (the "Securities Act"), and any rules,
regulations and requirements of the Securities and Exchange Commission in
respect thereof, in connection with the registration of the securities of the
Company being registered on the Registration Statement on Form S-3 to which this
power of attorney is filed as an exhibit (the "Securities"), including
specifically, but without limiting the generality of the foregoing, power and
authority to sign, in the name and on behalf of the undersigned as a director of
the Company, the Registration Statement on Form S-3 to which this power of
attorney is filed as an exhibit, a Registration Statement under Rule 462(b) of
the Securities Act, or another appropriate form in respect of the registration
of the Securities, and any and all amendments thereto, including post-effective
amendments, and any instruments, contracts, documents or other writings of which
the originals or copies thereof are to be filed as a part of, or in connection
with, any such Registration Statement or amendments, and to file or cause to be
filed the same with the Securities and Exchange Commission, and to effect any
and all applications and other instruments in the name and on behalf of the
undersigned which said attorneys-in-fact and agents, or any of them, deem
advisable in order to qualify or register the Securities under the securities
laws of any state; and the undersigned does hereby approve, ratify and confirm
all actions heretofore or hereafter lawfully taken, or caused to be taken, by
said attorneys-in-fact or agents, or any of them, by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
day and year indicated below.
/s/ALAN W. BRAUN
- ----------------------------
(Signature)
Alan W. Braun
- ----------------------------
(Printed)
Date: September 17, 1999
<PAGE> 4
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of Old
National Bancorp, an Indiana corporation (the "Company"), does hereby constitute
and appoint John S. Poelker, Christopher Wolking and Jeffrey L. Knight, and each
of them, the true and lawful attorneys-in-fact and agents of the undersigned, to
do or cause to be done any and all acts and things and to execute any and all
instruments and documents which said attorneys-in-fact and agents, or any of
them, may deem advisable or necessary to enable the Company to comply with the
Securities Act of 1933, as amended (the "Securities Act"), and any rules,
regulations and requirements of the Securities and Exchange Commission in
respect thereof, in connection with the registration of the securities of the
Company being registered on the Registration Statement on Form S-3 to which this
power of attorney is filed as an exhibit (the "Securities"), including
specifically, but without limiting the generality of the foregoing, power and
authority to sign, in the name and on behalf of the undersigned as a director of
the Company, the Registration Statement on Form S-3 to which this power of
attorney is filed as an exhibit, a Registration Statement under Rule 462(b) of
the Securities Act, or another appropriate form in respect of the registration
of the Securities, and any and all amendments thereto, including post-effective
amendments, and any instruments, contracts, documents or other writings of which
the originals or copies thereof are to be filed as a part of, or in connection
with, any such Registration Statement or amendments, and to file or cause to be
filed the same with the Securities and Exchange Commission, and to effect any
and all applications and other instruments in the name and on behalf of the
undersigned which said attorneys-in-fact and agents, or any of them, deem
advisable in order to qualify or register the Securities under the securities
laws of any state; and the undersigned does hereby approve, ratify and confirm
all actions heretofore or hereafter lawfully taken, or caused to be taken, by
said attorneys-in-fact or agents, or any of them, by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
day and year indicated below.
/s/WAYNE A. DAVIDSON
- ----------------------------
(Signature)
Wayne A. Davidson
- ----------------------------
(Printed)
Date: September 17, 1999
<PAGE> 5
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of Old
National Bancorp, an Indiana corporation (the "Company"), does hereby constitute
and appoint John S. Poelker, Christopher Wolking and Jeffrey L. Knight, and each
of them, the true and lawful attorneys-in-fact and agents of the undersigned, to
do or cause to be done any and all acts and things and to execute any and all
instruments and documents which said attorneys-in-fact and agents, or any of
them, may deem advisable or necessary to enable the Company to comply with the
Securities Act of 1933, as amended (the "Securities Act"), and any rules,
regulations and requirements of the Securities and Exchange Commission in
respect thereof, in connection with the registration of the securities of the
Company being registered on the Registration Statement on Form S-3 to which this
power of attorney is filed as an exhibit (the "Securities"), including
specifically, but without limiting the generality of the foregoing, power and
authority to sign, in the name and on behalf of the undersigned as a director of
the Company, the Registration Statement on Form S-3 to which this power of
attorney is filed as an exhibit, a Registration Statement under Rule 462(b) of
the Securities Act, or another appropriate form in respect of the registration
of the Securities, and any and all amendments thereto, including post-effective
amendments, and any instruments, contracts, documents or other writings of which
the originals or copies thereof are to be filed as a part of, or in connection
with, any such Registration Statement or amendments, and to file or cause to be
filed the same with the Securities and Exchange Commission, and to effect any
and all applications and other instruments in the name and on behalf of the
undersigned which said attorneys-in-fact and agents, or any of them, deem
advisable in order to qualify or register the Securities under the securities
laws of any state; and the undersigned does hereby approve, ratify and confirm
all actions heretofore or hereafter lawfully taken, or caused to be taken, by
said attorneys-in-fact or agents, or any of them, by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
day and year indicated below.
/s/LARRY E. DUNIGAN
- ----------------------------
(Signature)
Larry E. Dunigan
- ----------------------------
(Printed)
Date: September 17, 1999
<PAGE> 6
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of Old
National Bancorp, an Indiana corporation (the "Company"), does hereby constitute
and appoint John S. Poelker, Christopher Wolking and Jeffrey L. Knight, and each
of them, the true and lawful attorneys-in-fact and agents of the undersigned, to
do or cause to be done any and all acts and things and to execute any and all
instruments and documents which said attorneys-in-fact and agents, or any of
them, may deem advisable or necessary to enable the Company to comply with the
Securities Act of 1933, as amended (the "Securities Act"), and any rules,
regulations and requirements of the Securities and Exchange Commission in
respect thereof, in connection with the registration of the securities of the
Company being registered on the Registration Statement on Form S-3 to which this
power of attorney is filed as an exhibit (the "Securities"), including
specifically, but without limiting the generality of the foregoing, power and
authority to sign, in the name and on behalf of the undersigned as a director of
the Company, the Registration Statement on Form S-3 to which this power of
attorney is filed as an exhibit, a Registration Statement under Rule 462(b) of
the Securities Act, or another appropriate form in respect of the registration
of the Securities, and any and all amendments thereto, including post-effective
amendments, and any instruments, contracts, documents or other writings of which
the originals or copies thereof are to be filed as a part of, or in connection
with, any such Registration Statement or amendments, and to file or cause to be
filed the same with the Securities and Exchange Commission, and to effect any
and all applications and other instruments in the name and on behalf of the
undersigned which said attorneys-in-fact and agents, or any of them, deem
advisable in order to qualify or register the Securities under the securities
laws of any state; and the undersigned does hereby approve, ratify and confirm
all actions heretofore or hereafter lawfully taken, or caused to be taken, by
said attorneys-in-fact or agents, or any of them, by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
day and year indicated below.
/s/DAVID E. ECKERLE
- ----------------------------
(Signature)
David E. Eckerle
- ----------------------------
(Printed)
Date: September 17, 1999
<PAGE> 7
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of Old
National Bancorp, an Indiana corporation (the "Company"), does hereby constitute
and appoint John S. Poelker, Christopher Wolking and Jeffrey L. Knight, and each
of them, the true and lawful attorneys-in-fact and agents of the undersigned, to
do or cause to be done any and all acts and things and to execute any and all
instruments and documents which said attorneys-in-fact and agents, or any of
them, may deem advisable or necessary to enable the Company to comply with the
Securities Act of 1933, as amended (the "Securities Act"), and any rules,
regulations and requirements of the Securities and Exchange Commission in
respect thereof, in connection with the registration of the securities of the
Company being registered on the Registration Statement on Form S-3 to which this
power of attorney is filed as an exhibit (the "Securities"), including
specifically, but without limiting the generality of the foregoing, power and
authority to sign, in the name and on behalf of the undersigned as a director of
the Company, the Registration Statement on Form S-3 to which this power of
attorney is filed as an exhibit, a Registration Statement under Rule 462(b) of
the Securities Act, or another appropriate form in respect of the registration
of the Securities, and any and all amendments thereto, including post-effective
amendments, and any instruments, contracts, documents or other writings of which
the originals or copies thereof are to be filed as a part of, or in connection
with, any such Registration Statement or amendments, and to file or cause to be
filed the same with the Securities and Exchange Commission, and to effect any
and all applications and other instruments in the name and on behalf of the
undersigned which said attorneys-in-fact and agents, or any of them, deem
advisable in order to qualify or register the Securities under the securities
laws of any state; and the undersigned does hereby approve, ratify and confirm
all actions heretofore or hereafter lawfully taken, or caused to be taken, by
said attorneys-in-fact or agents, or any of them, by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
day and year indicated below.
/s/PHELPS L. LAMBERT
- ----------------------------
(Signature)
Phelps L. Lambert
- ----------------------------
(Printed)
Date: September 17, 1999
<PAGE> 8
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of Old
National Bancorp, an Indiana corporation (the "Company"), does hereby constitute
and appoint John S. Poelker, Christopher Wolking and Jeffrey L. Knight, and each
of them, the true and lawful attorneys-in-fact and agents of the undersigned, to
do or cause to be done any and all acts and things and to execute any and all
instruments and documents which said attorneys-in-fact and agents, or any of
them, may deem advisable or necessary to enable the Company to comply with the
Securities Act of 1933, as amended (the "Securities Act"), and any rules,
regulations and requirements of the Securities and Exchange Commission in
respect thereof, in connection with the registration of the securities of the
Company being registered on the Registration Statement on Form S-3 to which this
power of attorney is filed as an exhibit (the "Securities"), including
specifically, but without limiting the generality of the foregoing, power and
authority to sign, in the name and on behalf of the undersigned as a director of
the Company, the Registration Statement on Form S-3 to which this power of
attorney is filed as an exhibit, a Registration Statement under Rule 462(b) of
the Securities Act, or another appropriate form in respect of the registration
of the Securities, and any and all amendments thereto, including post-effective
amendments, and any instruments, contracts, documents or other writings of which
the originals or copies thereof are to be filed as a part of, or in connection
with, any such Registration Statement or amendments, and to file or cause to be
filed the same with the Securities and Exchange Commission, and to effect any
and all applications and other instruments in the name and on behalf of the
undersigned which said attorneys-in-fact and agents, or any of them, deem
advisable in order to qualify or register the Securities under the securities
laws of any state; and the undersigned does hereby approve, ratify and confirm
all actions heretofore or hereafter lawfully taken, or caused to be taken, by
said attorneys-in-fact or agents, or any of them, by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
day and year indicated below.
/s/RONALD B. LANKFORD
- ----------------------------
(Signature)
Ronald B. Lankford
- ----------------------------
(Printed)
Date: September 17, 1999
<PAGE> 9
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of Old
National Bancorp, an Indiana corporation (the "Company"), does hereby constitute
and appoint John S. Poelker, Christopher Wolking and Jeffrey L. Knight, and each
of them, the true and lawful attorneys-in-fact and agents of the undersigned, to
do or cause to be done any and all acts and things and to execute any and all
instruments and documents which said attorneys-in-fact and agents, or any of
them, may deem advisable or necessary to enable the Company to comply with the
Securities Act of 1933, as amended (the "Securities Act"), and any rules,
regulations and requirements of the Securities and Exchange Commission in
respect thereof, in connection with the registration of the securities of the
Company being registered on the Registration Statement on Form S-3 to which this
power of attorney is filed as an exhibit (the "Securities"), including
specifically, but without limiting the generality of the foregoing, power and
authority to sign, in the name and on behalf of the undersigned as a director of
the Company, the Registration Statement on Form S-3 to which this power of
attorney is filed as an exhibit, a Registration Statement under Rule 462(b) of
the Securities Act, or another appropriate form in respect of the registration
of the Securities, and any and all amendments thereto, including post-effective
amendments, and any instruments, contracts, documents or other writings of which
the originals or copies thereof are to be filed as a part of, or in connection
with, any such Registration Statement or amendments, and to file or cause to be
filed the same with the Securities and Exchange Commission, and to effect any
and all applications and other instruments in the name and on behalf of the
undersigned which said attorneys-in-fact and agents, or any of them, deem
advisable in order to qualify or register the Securities under the securities
laws of any state; and the undersigned does hereby approve, ratify and confirm
all actions heretofore or hereafter lawfully taken, or caused to be taken, by
said attorneys-in-fact or agents, or any of them, by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
day and year indicated below.
/s/LUCIEN H. MEIS
- ----------------------------
(Signature)
Lucien H. Meis
- ----------------------------
(Printed)
Date: September 17, 1999
<PAGE> 10
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of Old
National Bancorp, an Indiana corporation (the "Company"), does hereby constitute
and appoint John S. Poelker, Christopher Wolking and Jeffrey L. Knight, and each
of them, the true and lawful attorneys-in-fact and agents of the undersigned, to
do or cause to be done any and all acts and things and to execute any and all
instruments and documents which said attorneys-in-fact and agents, or any of
them, may deem advisable or necessary to enable the Company to comply with the
Securities Act of 1933, as amended (the "Securities Act"), and any rules,
regulations and requirements of the Securities and Exchange Commission in
respect thereof, in connection with the registration of the securities of the
Company being registered on the Registration Statement on Form S-3 to which this
power of attorney is filed as an exhibit (the "Securities"), including
specifically, but without limiting the generality of the foregoing, power and
authority to sign, in the name and on behalf of the undersigned as a director of
the Company, the Registration Statement on Form S-3 to which this power of
attorney is filed as an exhibit, a Registration Statement under Rule 462(b) of
the Securities Act, or another appropriate form in respect of the registration
of the Securities, and any and all amendments thereto, including post-effective
amendments, and any instruments, contracts, documents or other writings of which
the originals or copies thereof are to be filed as a part of, or in connection
with, any such Registration Statement or amendments, and to file or cause to be
filed the same with the Securities and Exchange Commission, and to effect any
and all applications and other instruments in the name and on behalf of the
undersigned which said attorneys-in-fact and agents, or any of them, deem
advisable in order to qualify or register the Securities under the securities
laws of any state; and the undersigned does hereby approve, ratify and confirm
all actions heretofore or hereafter lawfully taken, or caused to be taken, by
said attorneys-in-fact or agents, or any of them, by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
day and year indicated below.
/s/LOUIS L. MERVIS
- ----------------------------
(Signature)
Louis L. Mervis
- ----------------------------
(Printed)
Date: September 17, 1999
<PAGE> 11
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of Old
National Bancorp, an Indiana corporation (the "Company"), does hereby constitute
and appoint John S. Poelker, Christopher Wolking and Jeffrey L. Knight, and each
of them, the true and lawful attorneys-in-fact and agents of the undersigned, to
do or cause to be done any and all acts and things and to execute any and all
instruments and documents which said attorneys-in-fact and agents, or any of
them, may deem advisable or necessary to enable the Company to comply with the
Securities Act of 1933, as amended (the "Securities Act"), and any rules,
regulations and requirements of the Securities and Exchange Commission in
respect thereof, in connection with the registration of the securities of the
Company being registered on the Registration Statement on Form S-3 to which this
power of attorney is filed as an exhibit (the "Securities"), including
specifically, but without limiting the generality of the foregoing, power and
authority to sign, in the name and on behalf of the undersigned as a director of
the Company, the Registration Statement on Form S-3 to which this power of
attorney is filed as an exhibit, a Registration Statement under Rule 462(b) of
the Securities Act, or another appropriate form in respect of the registration
of the Securities, and any and all amendments thereto, including post-effective
amendments, and any instruments, contracts, documents or other writings of which
the originals or copies thereof are to be filed as a part of, or in connection
with, any such Registration Statement or amendments, and to file or cause to be
filed the same with the Securities and Exchange Commission, and to effect any
and all applications and other instruments in the name and on behalf of the
undersigned which said attorneys-in-fact and agents, or any of them, deem
advisable in order to qualify or register the Securities under the securities
laws of any state; and the undersigned does hereby approve, ratify and confirm
all actions heretofore or hereafter lawfully taken, or caused to be taken, by
said attorneys-in-fact or agents, or any of them, by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
day and year indicated below.
/s/LAWRENCE D. PRYBIL
- ----------------------------
(Signature)
Lawrence D. Prybil
- ----------------------------
(Printed)
Date: September 17, 1999
<PAGE> 12
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of Old
National Bancorp, an Indiana corporation (the "Company"), does hereby constitute
and appoint John S. Poelker, Christopher Wolking and Jeffrey L. Knight, and each
of them, the true and lawful attorneys-in-fact and agents of the undersigned, to
do or cause to be done any and all acts and things and to execute any and all
instruments and documents which said attorneys-in-fact and agents, or any of
them, may deem advisable or necessary to enable the Company to comply with the
Securities Act of 1933, as amended (the "Securities Act"), and any rules,
regulations and requirements of the Securities and Exchange Commission in
respect thereof, in connection with the registration of the securities of the
Company being registered on the Registration Statement on Form S-3 to which this
power of attorney is filed as an exhibit (the "Securities"), including
specifically, but without limiting the generality of the foregoing, power and
authority to sign, in the name and on behalf of the undersigned as a director of
the Company, the Registration Statement on Form S-3 to which this power of
attorney is filed as an exhibit, a Registration Statement under Rule 462(b) of
the Securities Act, or another appropriate form in respect of the registration
of the Securities, and any and all amendments thereto, including post-effective
amendments, and any instruments, contracts, documents or other writings of which
the originals or copies thereof are to be filed as a part of, or in connection
with, any such Registration Statement or amendments, and to file or cause to be
filed the same with the Securities and Exchange Commission, and to effect any
and all applications and other instruments in the name and on behalf of the
undersigned which said attorneys-in-fact and agents, or any of them, deem
advisable in order to qualify or register the Securities under the securities
laws of any state; and the undersigned does hereby approve, ratify and confirm
all actions heretofore or hereafter lawfully taken, or caused to be taken, by
said attorneys-in-fact or agents, or any of them, by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
day and year indicated below.
/s/JOHN N. ROYSE
- ----------------------------
(Signature)
John N. Royse
- ----------------------------
(Printed)
Date: September 17, 1999
<PAGE> 13
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of Old
National Bancorp, an Indiana corporation (the "Company"), does hereby constitute
and appoint John S. Poelker, Christopher Wolking and Jeffrey L. Knight, and each
of them, the true and lawful attorneys-in-fact and agents of the undersigned, to
do or cause to be done any and all acts and things and to execute any and all
instruments and documents which said attorneys-in-fact and agents, or any of
them, may deem advisable or necessary to enable the Company to comply with the
Securities Act of 1933, as amended (the "Securities Act"), and any rules,
regulations and requirements of the Securities and Exchange Commission in
respect thereof, in connection with the registration of the securities of the
Company being registered on the Registration Statement on Form S-3 to which this
power of attorney is filed as an exhibit (the "Securities"), including
specifically, but without limiting the generality of the foregoing, power and
authority to sign, in the name and on behalf of the undersigned as a director of
the Company, the Registration Statement on Form S-3 to which this power of
attorney is filed as an exhibit, a Registration Statement under Rule 462(b) of
the Securities Act, or another appropriate form in respect of the registration
of the Securities, and any and all amendments thereto, including post-effective
amendments, and any instruments, contracts, documents or other writings of which
the originals or copies thereof are to be filed as a part of, or in connection
with, any such Registration Statement or amendments, and to file or cause to be
filed the same with the Securities and Exchange Commission, and to effect any
and all applications and other instruments in the name and on behalf of the
undersigned which said attorneys-in-fact and agents, or any of them, deem
advisable in order to qualify or register the Securities under the securities
laws of any state; and the undersigned does hereby approve, ratify and confirm
all actions heretofore or hereafter lawfully taken, or caused to be taken, by
said attorneys-in-fact or agents, or any of them, by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
day and year indicated below.
/s/MARJORIE Z. SOYUGENC
- ----------------------------
(Signature)
Marjorie Z. Soyugence
- ----------------------------
(Printed)
Date: September 17, 1999
<PAGE> 14
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director of Old
National Bancorp, an Indiana corporation (the "Company"), does hereby constitute
and appoint John S. Poelker, Christopher Wolking and Jeffrey L. Knight, and each
of them, the true and lawful attorneys-in-fact and agents of the undersigned, to
do or cause to be done any and all acts and things and to execute any and all
instruments and documents which said attorneys-in-fact and agents, or any of
them, may deem advisable or necessary to enable the Company to comply with the
Securities Act of 1933, as amended (the "Securities Act"), and any rules,
regulations and requirements of the Securities and Exchange Commission in
respect thereof, in connection with the registration of the securities of the
Company being registered on the Registration Statement on Form S-3 to which this
power of attorney is filed as an exhibit (the "Securities"), including
specifically, but without limiting the generality of the foregoing, power and
authority to sign, in the name and on behalf of the undersigned as a director of
the Company, the Registration Statement on Form S-3 to which this power of
attorney is filed as an exhibit, a Registration Statement under Rule 462(b) of
the Securities Act, or another appropriate form in respect of the registration
of the Securities, and any and all amendments thereto, including post-effective
amendments, and any instruments, contracts, documents or other writings of which
the originals or copies thereof are to be filed as a part of, or in connection
with, any such Registration Statement or amendments, and to file or cause to be
filed the same with the Securities and Exchange Commission, and to effect any
and all applications and other instruments in the name and on behalf of the
undersigned which said attorneys-in-fact and agents, or any of them, deem
advisable in order to qualify or register the Securities under the securities
laws of any state; and the undersigned does hereby approve, ratify and confirm
all actions heretofore or hereafter lawfully taken, or caused to be taken, by
said attorneys-in-fact or agents, or any of them, by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
day and year indicated below.
/s/CHARLES D. STORMS
- ----------------------------
(Signature)
Charles D. Storms
- ----------------------------
(Printed)
Date: September 17, 1999
<PAGE> 1
EXHIBIT 26.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
---------
---------------------
BANK ONE TRUST COMPANY, NA
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 31-0838515
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE TRUST COMPANY, NA
100 EAST BROAD STREET
COLUMBUS, OHIO 43271-0181
ATTN: LINDA J. PATTERSON, SENIOR MANAGING DIRECTOR, (614) 248-5193
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
--------------------
OLD NATIONAL BANCORP
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
INDIANA 33-1539838
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
420 MAIN STREET
EVANSVILLE, INDIANA 47708
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
JUNIOR SUBORDINATED DEBENTURES
GUARANTEES WITH RESPECT TO CAPITAL SECURITIES
OF ONB CAPITAL TRUST I, ONB CAPITAL
TRUST II, ONB CAPITAL TRUST III AND
ONB CAPITAL TRUST IV
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO
THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING
AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of
Governors of the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST
POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE
OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART
OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee now
in effect.
2. A copy of the certificates of authority of the trustee to
commence business.
3. A copy of the authorization of the trustee to exercise
corporate trust powers.
4. A copy of the existing by-laws of the trustee.
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
<PAGE> 3
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, NA, a national banking
association organized and existing under the laws of the United States
of America, has duly caused this Statement of Eligibility to be signed
on its behalf by the undersigned, thereunto duly authorized, all in the
City of Chicago and State of Illinois, on the 13th day of September,
1999.
BANK ONE TRUST COMPANY, NA,
TRUSTEE
BY /s/ Sandra L. Caruba
------------------------------------------------
SANDRA L. CARUBA
VICE PRESIDENT
<PAGE> 4
EXHIBIT 1
A COPY OF THE ARTICLES OF ASSOCIATION OF THE
TRUSTEE NOW IN EFFECT
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
BANK ONE TRUST COMPANY, NA
FIRST. The title of this Association shall be BANK ONE TRUST COMPANY, NA.
SECOND. The main office of the Association shall be in the City of Columbus,
County of Franklin, State of Ohio.
The business of the Association will be limited to the fiduciary powers and the
support of activities incidental to the exercise of those powers. The
Association will not expand or alter its business beyond that stated in this
article without the prior approval of the Comptroller of the Currency.
THIRD. The Board of Directors of this Association shall consist of not less than
five nor more than twenty-five persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full Board of
Directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director shall own common or preferred stock of
the Association, or of a holding company owning the Association, with an
aggregate par, fair market or equity value of not less than $1,000, as of either
(i) the date of purchase, (ii) the date the person became a director, or (iii)
the date of that person's most recent election to the Board of Directors,
whichever is more recent. Any combination of common or preferred stock of the
Association or holding company may be used.
Any vacancy in the Board of Directors may be filled by action of a majority of
the remaining directors between meetings of shareholders. The Board of Directors
may not increase the number of directors between meetings of shareholders to a
number which: (1) exceeds by more than two the number of directors last elected
by shareholders where the number was 15 or less; or (2) exceeds by more than
four the number of directors last elected by shareholders where the number was
16 or more, but in no event shall the number of directors exceed 25.
Terms of directors, including directors selected to fill vacancies, shall expire
at the next regular meeting of shareholders at which directors are elected,
unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
<PAGE> 5
Honorary or advisory members of the Board of Directors, without voting power or
power of final decision in matters concerning the business of the Association,
may be appointed by resolution of a majority of the full Board of Directors, or
by resolution of shareholders at any annual or special meeting. Honorary or
advisory directors shall not be counted to determine the number of directors of
the Association or the presence of a quorum in connection with any board action,
and shall not be required to own qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It shall
be held at the main office or any other convenient place the Board of Directors
may designate, on the day of each year specified therefor in the Bylaws or, if
that day falls on a legal holiday in the state in which the Association is
located, on the next following banking day. If no election is held on the day
fixed or in the event of a legal holiday on the following banking day, an
election may be held on any subsequent day within 60 days of the day fixed, to
be designated by the Board of Directors or, if the directors fail to fix the
day, by shareholders representing two-thirds of the shares issued and
outstanding. In all cases at least 10 days advance notice of the meeting shall
be given to the shareholders by first class mail.
In all elections of directors, the number of votes each common shareholder may
cast will be determined by multiplying the number of shares such shareholder
owns by the number of directors to be elected. Those votes may be cumulated and
cast for a single candidate or may be distributed among two or more candidates
in the manner selected by the shareholder. On all other questions, each common
shareholder shall be entitled to one vote for each share of stock held by such
shareholder. If the issuance of preferred stock with voting rights has been
authorized by a vote of shareholders owning a majority of the common stock of
the association, preferred shareholders will have cumulative voting rights and
will be included within the same class as common shareholders, for purposes of
elections of directors.
A director may resign at any time by delivering written notice to the Board of
Directors, its chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of the
affirmative requirements for qualification, or for cause, provided, however,
that a director may not be removed if the number of votes sufficient to elect
him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of this Association shall be
eighty thousand shares of common stock of the par value of ten dollars ($10.00)
each; but said capital stock may be increased or decreased from time to time,
according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time
<PAGE> 6
determine and at such price as the Board of Directors may from time to time fix.
Unless otherwise specified in the Articles of Association or required by law,
(1) all matters requiring shareholder action, including amendments to the
Articles of Association, must be approved by shareholders owning a majority
voting interest in the outstanding voting stock, and (2) each shareholder shall
be entitled to one vote per share.
Unless otherwise specified in the Articles of Association or required by law,
all shares of voting stock shall be voted together as a class on any matters
requiring shareholder approval. If a proposed amendment would affect two or more
classes or series in the same or a substantially similar way, all the classes or
series so affected must vote together as a single voting group on the proposed
amendment.
Shares of the same class or series may be issued as a dividend on a pro rata
basis and without consideration. Shares of another class or series may be issued
as share dividends in respect of a class or series of stock if approved by a
majority of the votes entitled to be cast by the class or series to be issued
unless there are no outstanding shares of the class or series to be issued.
Unless otherwise provided by the Board of Directors, the record date for
determining shareholders entitled to a share dividend shall be the date the
Board of Directors authorizes the share dividend.
Unless otherwise provided in the Bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close of
business on the day before the first notice is mailed or otherwise sent to the
shareholders, provided that in no event may a record date be more than 70 days
before the meeting.
If a shareholder is entitled to fractional shares pursuant to preemptive rights,
a stock dividend, consolidation or merger, reverse stock split or otherwise, the
Association may: (a) issue fractional shares or; (b) in lieu of the issuance of
fractional shares, issue script or warrants entitling the holder to receive a
full share upon surrendering enough script or warrants to equal a full share;
(c) if there is an established and active market in the Association's stock,
make reasonable arrangements to provide the shareholder with an opportunity to
realize a fair price through sale of the fraction, or purchase of the additional
fraction required for a full share; (d) remit the cash equivalent of the
fraction to the shareholder; or (e) sell full shares representing all the
fractions at public auction or to the highest bidder after having solicited and
received sealed bids from at least three licensed stock brokers, and distribute
the proceeds pro rata to shareholders who otherwise would be entitled to the
fractional shares. The holder of a fractional share is entitled to exercise the
rights for shareholder, including the right to vote, to receive dividends, and
to participate in the assets of the Association upon liquidation, in proportion
to the fractional interest. The holder of script or warrants is not entitled to
any of these rights unless the script or warrants explicitly provide for such
rights. The script or warrants may be subject to such additional conditions as:
(1) that the script or warrants will become void if not exchanged for full
shares before a specified date; and (2) that the shares for which the script or
warrants are exchangeable may be sold at the option of the Association and the
proceeds paid to scriptholders.
<PAGE> 7
The Association, at any time and from time to time, may authorize and issue debt
obligations, whether or not subordinated, without the approval of the
shareholders. Obligations classified as debt, whether or not subordinated, which
may be issued by the Association without the approval of shareholders, do not
carry voting rights on any issue, including an increase or decrease in the
aggregate number of the securities, or the exchange or reclassification of all
or part of securities into securities of another class or series.
SIXTH. The Board of Directors shall appoint one of its members president of this
Association, and one of its members chairperson of the board and shall have the
power to appoint one or more vice presidents, a secretary who shall keep minutes
of the directors' and shareholders' meetings and be responsible for
authenticating the records of the Association, and such other officers and
employees as may be required to transact the business of this Association. A
duly appointed officer may appoint one or more officers or assistant officers if
authorized by the Board of Directors in accordance with the Bylaws. The Board of
Directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of the
Association.
(2) Delegate the performance of its duties, but not the responsibility for
its duties, to the officers, employees, and agents of the Association.
(3) Fix the compensation and enter into employment contracts with its
officers and employees upon reasonable terms and conditions consistent
with applicable law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and to fix the penalty
thereof.
(6) Ratify written policies authorized by the Association's management or
committees of the board.
(7) Regulate the manner in which any increase or decrease of the capital of
the Association shall be made, provided that nothing herein shall
restrict the power of shareholders to increase or decrease the capital
of the association in accordance with law, and nothing shall raise or
lower from two-thirds the percentage for shareholder approval to
increase or reduce the capital.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial Bylaws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of
the Association.
(10) Amend or repeal Bylaws, except to the extent that the Articles of
Association reserve this power in whole or in part to shareholders.
(11) Make contracts.
(12) Generally perform all acts that are legal for a Board of Directors to
perform.
<PAGE> 8
SEVENTH. The Board of Directors shall have the power to change the location of
the main office of this Association to any other place within the limits of the
City of Columbus, State of Ohio, without the approval of the shareholders; and
shall have the power to change the location of the main office of this
Association to any other place outside the limits of the City of Columbus, State
of Ohio, but not more than thirty miles beyond such limits, with the affirmative
vote of shareholders owning two-thirds of the stock of the Association, subject
to receipt of a certificate of approval from the Comptroller of the Currency.
The Board of Directors shall have the power to establish or change the location
of any branch or branches of the Association to any other location permitted
under applicable law without the approval of the shareholders, subject to
approval by the Office of the Comptroller of the Currency. The Board of
Directors shall have the power to establish or change the location of any
nonbranch office or facility of the Association without the approval of the
shareholders.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
NINTH. The Board of Directors of this Association, or any shareholders owning,
in the aggregate, not less than 20 percent of the stock of this Association, may
call a special meeting of shareholders at any time. Unless otherwise provided by
the Bylaws or the laws of the United States, or waived by shareholders, a notice
of the time, place, and purpose of every annual and special meeting of the
shareholders shall be given by first-class mail, postage prepaid, mailed at
least 10, and no more than 60, days prior to the date of the meeting to each
shareholder of record at his/her address as shown upon the books of this
Association. Unless otherwise provided by the Bylaws, any action requiring
approval of shareholders must be effected at a duly called annual or special
meeting.
TENTH. The Association shall provide indemnification as set forth below:
Every person who is or was a Director, officer or employee of the Association or
of any other corporation which he served as a Director, officer or employee at
the request of the Association as part of his regularly assigned duties may be
indemnified by the Association in accordance with the provisions of this Article
against all liability (including, without limitation, judgments, fines,
penalties, and settlements) and all reasonable expenses (including, without
limitation, attorneys' fees and investigative expenses) that may be incurred or
paid by him in connection with any claim, action, suit or proceeding, whether
civil, criminal or administrative (all referred to hereafter in this Article as
"Claims") or in connection with any appeal relating thereto in which he may
become involved as a party or otherwise or with which he may be threatened by
reason of his being or having been a Director, officer or employee of the
Association or such other corporation, or by reason of any action taken or
omitted by him in his capacity as such Director, officer or employee, whether or
not he continues to be such at the time such liability or expenses are incurred;
provided that nothing contained in this Article shall be construed to permit
indemnification of any such person who is adjudged guilty of, or liable for,
willful misconduct, gross neglect of duty or criminal acts, unless, at the time
such indemnification is sought, such indemnification in such instance is
permissible under applicable law and regulations, including published rulings of
the Comptroller of the Currency or other appropriate
<PAGE> 9
supervisory or regulatory authority; and provided further that there shall be no
indemnification of Directors, officers, or employees against expenses,
penalties, or other payments incurred in an administrative proceeding or action
instituted by an appropriate regulatory agency which proceeding or action
results in a final order assessing civil money penalties or requiring
affirmative action by an individual or individuals in the form of payments to
the Association.
Every person who may be indemnified under the provisions of this Article and who
has been wholly successful on the merits with respect to any Claim shall be
entitled to indemnification as of right. Except as provided in the preceding
sentence, any indemnification under this Article shall be at the sole discretion
of the Board of Directors and shall be made only if the Board of Directors or
the Executive Committee acting by a quorum consisting of Directors who are not
parties to such Claim shall find or if independent legal counsel (who may be the
regular counsel of the Association) selected by the Board of Directors or
Executive Committee whether or not a disinterested quorum exists shall render
their opinion that in view of all of the circumstances then surrounding the
Claim, such indemnification is equitable and in the best interests of the
Association. Among the circumstances to be taken into consideration in arriving
at such a finding or opinion is the existence or non-existence of a contract of
insurance or indemnity under which the Association would be wholly or partially
reimbursed for such indemnification, but the existence or non-existence of such
insurance is not the sole circumstance to be considered nor shall it be wholly
determinative of whether such indemnification shall be made. In addition to such
finding or opinion, no indemnification under this Article shall be made unless
the Board of Directors or the Executive Committee acting by a quorum consisting
of Directors who are not parties to such Claim shall find or if independent
legal counsel (who may be the regular counsel of the Association) selected by
the Board of Directors or Executive Committee whether or not a disinterested
quorum exists shall render their opinion that the Directors, officer or employee
acted in good faith in what he reasonably believed to be the best interests of
the Association or such other corporation and further in the case of any
criminal action or proceeding, that the Director, officer or employee reasonably
believed his conduct to be lawful. Determination of any Claim by judgment
adverse to a Director, officer or employee by settlement with or without Court
approval or conviction upon a plea of guilty or of nolo contendere or its
equivalent shall not create a presumption that a Director, officer or employee
failed to meet the standards of conduct set forth in this Article. Expenses
incurred with respect to any Claim may be advanced by the Association prior to
the final disposition thereof upon receipt of an undertaking satisfactory to the
Association by or on behalf of the recipient to repay such amount unless it is
ultimately determined that he is entitled to indemnification under this Article.
The rights of indemnification provided in this Article shall be in addition to
any rights to which any Director, officer or employee may otherwise be entitled
by contract or as a matter of law. Every person who shall act as a Director,
officer or employee of this Association shall be conclusively presumed to be
doing so in reliance upon the right of indemnification provided for in this
Article.
<PAGE> 10
ELEVENTH. These Articles of Association may be amended at any regular or special
meeting of the shareholders by the affirmative vote of the holders of a majority
of the stock of this Association, unless the vote of the holders of a greater
amount of stock is required by law, and in that case by the vote of the holders
of such greater amount. The Association's Board of Directors may propose one or
more amendments to the Articles of Association for submission to the
shareholders.
<PAGE> 11
EXHIBIT 2
A COPY OF THE CERTIFICATE OF AUTHORITY OF THE
TRUSTEE TO COMMENCE BUSINESS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter No.
16235) is a National Banking Association formed under the laws of the United
States and is authorized thereunder to transact the business of banking on the
date of this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
24th day of March, 1999.
/s/ John D. Hawke, Jr.
----------------------------
Comptroller of the Currency
<PAGE> 12
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE TRUSTEE
TO EXERCISE CORPORATE TRUST POWERS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter No.
16235) was granted, under the hand and seal of the Comptroller, the right to act
in all fiduciary capacities authorized under the provisions of the Act of
Congress approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a, and that the
authority so granted remains in full force and effect on the date of this
Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
24th day of March, 1999.
/s/ John D. Hawke, Jr.
-----------------------------
Comptroller of the Currency
<PAGE> 13
EXHIBIT 4
A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE
BANK ONE TRUST COMPANY, N.A.
BY-LAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1.01. ANNUAL MEETING. The regular annual meeting of the shareholders of
the Bank for the election of Directors and for the transaction of such business
as may properly come before the meeting shall be held at its main office, or
other convenient place duly authorized by the Board of Directors, on the same
day upon which any regular or special Board meeting is held from and including
the first Monday of January to, and including, the fourth Monday of February of
each year, or on the next succeeding banking day, if the day fixed falls on a
legal holiday. If from any cause, an election of Directors is not made on the
day fixed for the regular meeting of the shareholders or, in the event of a
legal holiday, on the next succeeding banking day, the Board of Directors shall
order the election to be held on some subsequent day, as soon thereafter as
practicable, according to the provisions of law; and notice thereof shall be
given in the manner herein provided for the annual meeting. Notice of such
annual meeting shall be given by or under the direction of the Secretary, or
such other officer as may be designated by the Chief Executive Officer, by
first-class mail, postage prepaid, to all shareholders of record of the Bank at
their respective addresses as shown upon the books of the Bank mailed not less
than ten days prior to the date fixed for such meeting.
SECTION 1.02. SPECIAL MEETINGS. A special meeting of the shareholders of the
Bank may be called at any time by the Board of Directors or by any three or more
shareholders owning, in the aggregate, not less than ten percent of the stock of
the Bank. Notice of any special meeting of the shareholders called by the Board
of Directors, stating the time, place and purpose of the meeting, shall be given
by or under the direction of the Secretary, or such other officer as is
designated by the Chief Executive Officer, by first-class mail, postage prepaid,
to all shareholders of record of the Bank at their respective addresses as shown
upon the books of the Bank mailed not less than ten days prior to the date fixed
for such meeting. Any special meeting of shareholders shall be conducted and its
proceedings recorded in the manner prescribed in these By-Laws for annual
meetings of shareholders.
13
<PAGE> 14
SECTION 1.03. SECRETARY OF MEETING OF SHAREHOLDERS. The Board of Directors may
designate a person to be the secretary of the meeting of shareholders. In the
absence of a presiding officer, as designated by these By-Laws, the Board of
Directors may designate a person to act as the presiding officer. In the event
the Board of Directors fails to designate a person to preside at a meeting of
shareholders and a secretary of such meeting, the shareholders present or
represented shall elect a person to preside and a person to serve as secretary
of the meeting. The secretary of the meeting of shareholders shall cause the
returns made by the judges of election and other proceedings to be recorded in
the minute books of the Bank. The presiding officer shall notify the
Directors-elect of their election and to meet forthwith for the organization of
the new Board of Directors. The minutes of the meeting shall be signed by the
presiding officer and the secretary designated for the meeting.
SECTION 1.04. JUDGES OF ELECTION. The Board of Directors may appoint as many as
three shareholders to be judges of the election, who shall hold and conduct the
same, and who shall, after the election has been held, notify, in writing over
their signatures, the secretary of the meeting of shareholders of the result
thereof and the names of the Directors elected; provided, however, that upon
failure for any reason of any judge or judges of election, so appointed by the
Directors, to serve, the presiding officer of the meeting shall appoint other
shareholders or their proxies to fill the vacancies. The judges of election, at
the request of the chairman of the meeting, shall act as tellers of any other
vote by ballot taken at such meeting, and shall notify, in writing over their
signature, the secretary of the Board of Directors of the result thereof.
SECTION 1.05. PROXIES. In all elections of Directors, each shareholder of
record, who is qualified to vote under the provisions of Federal Law, shall have
the right to vote the number of shares of record in such shareholder's name for
as many persons as there are Directors to be elected, or to cumulate such shares
as provided by Federal Law. In deciding all other questions at meetings of
shareholders, each shareholder shall be entitled to one vote on each share of
stock of record in such shareholder's name. Shareholders may vote by proxy duly
authorized in writing. All proxies used at the annual meeting shall be secured
for that meeting only, or any adjournment thereof, and shall be dated, if not
dated by the shareholder, as of the date of the receipt thereof. No officer or
employee of this Bank may act as proxy.
SECTION 1.06. QUORUM. Holders of record of a majority of the shares of the
capital stock of the Bank, eligible to be voted, present either in person or by
proxy, shall constitute a quorum for the transaction of business at any meeting
of shareholders, but shareholders present at any meeting and constituting less
than a quorum may, without further notice, adjourn the meeting from time to time
until a quorum is obtained. A majority of the votes cast shall decide every
question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
DIRECTORS
SECTION 2.01. QUALIFICATIONS. Each Director shall have the qualifications
prescribed by law. No person elected as a Director may exercise any of the
powers of office until such Director has taken the oath of such office.
14
<PAGE> 15
SECTION 2.02. VACANCIES. Directors of the Bank shall hold office for one year or
until their successors are elected and qualified. Any vacancy in the Board shall
be filled by appointment of the remaining Directors, and any Director so
appointed shall hold office until the next election.
SECTION 2.03. ORGANIZATION MEETING. The Directors elected by the shareholders
shall meet for organization of the new Board of Directors at the time and place
fixed by the presiding officer of the annual meeting. If at the time fixed for
such meeting there is no quorum present, the Directors in attendance may adjourn
from time to time until a quorum is obtained. A majority of the number of
Directors elected by the shareholders shall constitute a quorum for the
transaction of business.
SECTION 2.04. REGULAR MEETINGS. The regular meetings of the Board of Directors
shall be held at such date, time and place as the Board may previously
designate, or should the Board fail to so designate, at such date, time and
place as the Chairman of the Board, Chief Executive Officer, or President may
fix. Whenever a quorum is not present, the Directors in attendance shall adjourn
the meeting to a time not later than the date fixed by the By-Laws for the next
succeeding regular meeting of the Board. Members of the Board of Directors may
participate in such meetings through use of conference telephone or similar
communications equipment, so long as all members participating in such meetings
can hear one another.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the Board of Directors shall
be held at the call of the Chairman of the Board, Chief Executive Officer, or
President, or at the request of two or more Directors. Any special meeting may
be held at such place and at such time as may be fixed in the call. Written or
oral notice shall be given to each Director not later than the day next
preceding the day on which the special meeting is to be held, which notice may
be waived in writing. The presence of a Director at any meeting of the Board of
Directors shall be deemed a waiver of notice thereof by such Director. Whenever
a quorum is not present, the Directors in attendance shall adjourn the special
meeting from day to day until a quorum is obtained. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.06. QUORUM. A majority of the Directors shall constitute a quorum at
any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as herein
defined, but at least one-third and not less than two of the authorized number
of Directors are present at a meeting of the Directors, business of the Bank may
be transacted and matters before the Board approved or disapproved by the
unanimous vote of the Directors present.
SECTION 2.07. COMPENSATION. Each member of the Board of Directors shall receive
such fees for attendance at Board and Board committee meetings and such fees for
service as a Director, irrespective of meeting attendance, as from time to time
are fixed by resolution of the Board; provided, however, that payment hereunder
shall not be made to a Director for meetings attended and/or Board service which
are not for the Bank's sole
15
<PAGE> 16
benefit and which are concurrent and duplicative with meetings attended or Board
service for an affiliate of the Bank for which the Director receives payment;
and provided further that fees hereunder shall not be paid in the case of any
Director in the regular employment of the Bank or of one of its affiliates. Each
member of the Board of Directors, whether or not such Director is in the regular
employment of the Bank or of one of its affiliates, shall be reimbursed for
travel expenses incident to attendance at Board and Board committee meetings.
SECTION 2.08. EXECUTIVE COMMITTEE. There may be a standing committee of the
Board of Directors known as the Executive Committee which shall possess and
exercise, when the Board is not in session, all the powers of the Board that may
lawfully be delegated. The Executive Committee shall consist of at least three
Board members, one of whom shall be the Chairman of the Board, Chief Executive
Officer or the President. The other members of the Executive Committee shall be
appointed by the Chairman of the Board, the Chief Executive Officer, or the
President, with the approval of the Board, and who shall continue as members of
the Executive Committee until their successors are appointed, provided, however,
that any member of the Executive Committee may be removed by the Board upon a
majority vote thereof at any regular or special meeting of the Board. The
Chairman, Chief Executive Officer, or President shall fill any vacancy in the
Executive Committee by the appointment of another Director, subject to the
approval of the Board of Directors. The Executive Committee shall meet at the
call of the Chairman, Chief Executive Officer, or President or any two members
thereof at such time or times and place as may be designated. In the event of
the absence of any member or members of the Executive Committee, the presiding
member may appoint a member or members of the Board to fill the place or places
of such absent member or members to serve during such absence. Two members of
the Executive Committee shall constitute a quorum. When neither the Chairman of
the Board, the Chief Executive Officer, nor President are present, the Executive
Committee shall appoint a presiding officer. The Executive Committee shall
report its proceedings and the action taken by it to the Board of Directors.
SECTION 2.09. OTHER COMMITTEES. The Board of Directors may appoint such special
committees from time to time as are in its judgment necessary in the interest of
the Bank.
ARTICLE III
OFFICERS, MANAGEMENT STAFF AND EMPLOYEES
SECTION 3.01. OFFICERS AND MANAGEMENT STAFF.
(a) The executive officers of the Bank shall include a Chairman of the Board,
Chief Executive Officer, President, Chief Financial Officer, Secretary, Security
Officer, and may include one or more Senior Managing Directors or Managing
Directors. The Chairman of the Board, Chief Executive Officer, President, any
Senior Managing Director, any Managing Director, Chief Financial Officer,
Secretary, and Security Officer shall be elected by the Board. The Chairman of
the Board, Chief Executive Officer, and the President shall be elected by the
Board from their own number. Such officers as the Board shall elect from their
own number shall hold office from the date of their election as officers until
the organization meeting of the Board of Directors following the next annual
meeting of shareholders, provided, however, that such officers may be relieved
of their duties at any time by action of the Board of Directors, in which event
all the powers incident to their office shall immediately terminate. The
Chairman of the Board, Chief Executive Officer, or
16
<PAGE> 17
the President shall preside at all meetings of shareholders and meetings of the
Board of Directors.
(b) The management staff of the Bank shall include officers elected by the
Board, officers appointed by the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and such other persons in the employment of the Bank
who, pursuant to authorization by a duly authorized officer of the Bank, perform
management functions and have management responsibilities. Any two or more
offices may be held by the same person except that no person shall hold the
office of Chairman of the Board, Chief Executive Officer and/or President and at
the same time also hold the office of Secretary.
(c) Except as provided in the case of the elected officers who are members of
the Board, all officers and employees, whether elected or appointed, shall hold
office at the pleasure of the Board. Except as otherwise limited by law or these
By-Laws, the Board assigns to the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and/or each of their respective designees the authority
to control all personnel, including elected and appointed officers and employees
of the Bank, to employ or direct the employment of such officers and employees
as he or she may deem necessary, including the fixing of salaries and the
dismissal of such officers and employees at pleasure, and to define and
prescribe the duties and responsibilities of all officers and employees of the
Bank, subject to such further limitations and directions as he or she may from
time to time deem appropriate.
(d) The Chairman of the Board, the Chief Executive Officer, the President, any
Senior Managing Director, any Managing Director, the Chief Financial Officer,
and any other officer of the Bank, to the extent that such officer is authorized
in writing by the Chairman of the Board, the Chief Executive Officer, the
President, any Senior Managing Director, any Managing Director, or the Chief
Financial Officer may appoint persons other than officers who are in employment
of the Bank to serve in management positions and in connection therewith, the
appointing officer may assign such title, salary, responsibilities and functions
as are deemed appropriate, provided, however, that nothing contained herein
shall be construed as placing any limitation on the authority of the Chairman of
the Board, the Chief Executive Officer, the President, any Senior Managing
Director, any Managing Director, or the Chief Financial Officer as provided in
this and other sections of these By-Laws.
(e) The Senior Managing Directors and the Managing Directors of the Bank shall
have general and active authority over the management of the business of the
Bank, shall see that all orders and resolutions of the Board of Directors are
carried into effect, and shall do or cause to be done all things necessary or
proper to carry on the business of the Bank in accordance with provisions of
applicable law and regulations. Each Senior Managing Director and Managing
Director shall perform all duties incident to his or her office and such other
and further duties, as may from time to time be required by the Chief Executive
Officer, the President, the Board of Directors, or the shareholders. The
specification of authority in these By-Laws wherever and to whomever granted
shall not be construed to limit in any manner the general powers of delegation
granted to a Senior Managing Director or a Managing Director in conducting the
business of the Bank. In the absence of a Senior Managing Director or a Managing
Director, such officer as is designated by the Senior Managing Director or the
Managing Director shall be vested with all the powers and perform all the duties
of the Senior Managing Director or the Managing Director as defined by these
By-Laws.
17
<PAGE> 18
(f) Each Managing Director who is assigned oversight of one or more trust
service offices shall appoint a management committee known as the Investment
Management and Trust Committee consisting of the Managing Director of the trust
service offices and at least three other members who shall be capable and
experienced officers of the Bank appointed from time to time by the Managing
Director and who shall continue as members of the Investment Management and
Trust Committee until their successors are appointed, provided, however, that
any member of the Investment Management and Trust Committee may be removed by
the Managing Director as provided in this and other sections of these By-Laws.
The Managing Director shall fill any vacancy in the Investment Management and
Trust Committee by the appointment of another capable and experienced officer of
the Bank. Each Investment Management and Trust Committee shall meet at such
date, time and place as the Managing Director shall fix. In the event of the
absence of any member or members of the Investment Management and Trust
Committee, the Managing Director may, in his or her discretion, appoint another
officer of the Bank to fill the place or places of such absent member or members
to serve during such absence. A majority of each Investment Management and Trust
Committee shall constitute a quorum. Each Investment Management and Trust
Committee shall carry out the policies of the Bank, as adopted by the Board of
Directors, which shall be formulated and executed in accordance with State and
Federal Law, Regulations of the Comptroller of the Currency, and sound fiduciary
principles. In carrying out the policies of the Bank, each Investment Management
and Trust Committee is hereby authorized to establish management teams whose
duties and responsibilities shall be specifically set forth in the policies of
the Bank. Each such management team shall report such proceedings and the
actions taken thereby to the Investment Management and Trust Committee. Each
Managing Director shall then report such proceedings and the actions taken
thereby to the Board of Directors.
SECTION 3.02. POWERS AND DUTIES OF MANAGEMENT STAFF. Pursuant to the fiduciary
powers granted to this Bank under the provisions of Federal Law and Regulations
of the Comptroller of the Currency, the Chairman of the Board, the Chief
Executive Officer, the President, the Senior Managing Directors, the Managing
Directors, the Chief Financial Officer, and those officers so designated and
authorized by the Chairman of the Board, the Chief Executive Officer, the
President, the Senior Managing Directors, the Managing Directors, or the Chief
Financial Officer are authorized for and on behalf of the Bank, and to the
extent permitted by law, to make loans and discounts; to purchase or acquire
drafts, notes, stocks, bonds, and other securities for investment of funds held
by the Bank; to execute and purchase acceptances; to appoint, empower and direct
all necessary agents and attorneys; to sign and give any notice required to be
given; to demand payment and/or to declare due for any default any debt or
obligation due or payable to the Bank upon demand or authorized to be declared
due; to foreclose any mortgages; to exercise any option, privilege or election
to forfeit, terminate, extend or renew any lease; to authorize and direct any
proceedings for the collection of any money or for the enforcement of any right
or obligation; to adjust, settle and compromise all claims of every kind and
description in favor of or against the Bank, and to give receipts, releases and
discharges therefor; to borrow money and in connection therewith to make,
execute and deliver notes, bonds or other evidences of indebtedness; to pledge
or hypothecate any securities or any stocks, bonds, notes or any property real
or personal held or owned by the Bank, or to rediscount any notes or other
obligations held or owned by the Bank, whenever in his or her judgment it is
reasonably necessary for the operation of the Bank; and in furtherance of and in
addition to the powers hereinabove set forth to do all such acts and to take all
such proceedings as in his or her judgment are necessary and incidental to the
operation of the Bank.
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<PAGE> 19
SECTION 3.03. SECRETARY. The Secretary or such other officers as may be
designated by the Chief Executive Officer shall have supervision and control of
the records of the Bank and, subject to the direction of the Chief Executive
Officer, shall undertake other duties and functions usually performed by a
corporate secretary. Other officers may be designated by the Secretary as
Assistant Secretary to perform the duties of the Secretary.
SECTION 3.04. EXECUTION OF DOCUMENTS. Any member of the Bank's management staff
or any employee of the Bank designated as an officer on the Bank's payroll
system is hereby authorized for and on behalf of the Bank to sell, assign,
lease, mortgage, transfer, deliver and convey any real or personal property,
including shares of stock, bonds, notes, certificates of indebtedness (including
the assignment and redemption of registered United States obligations) and all
other forms of intangible property now or hereafter owned by or standing in the
name of the Bank, or its nominee, or held by the Bank as collateral security, or
standing in the name of the Bank, or its nominee, in any fiduciary capacity or
in the name of any principal for whom this Bank may now or hereafter be acting
under a power of attorney or as agent, and to execute and deliver such partial
releases from any discharges or assignments of mortgages and assignments or
surrender of insurance policies, deeds, contracts, assignments or other papers
or documents as may be appropriate in the circumstances now or hereafter held by
the Bank in its own name, in a fiduciary capacity, or owned by any principal for
whom this Bank may now or hereafter be acting under a power of attorney or as
agent; provided, however, that, when necessary, the signature of any such person
shall be attested or witnessed in each case by another officer of the Bank.
Any member of the Bank's management staff or any employee of the Bank designated
as an officer on the Bank's payroll system is hereby authorized for and on
behalf of the Bank to execute any indemnity and fidelity bonds, trust
agreements, proxies or other papers or documents of like or different character
necessary, desirable or incidental to the appointment of the Bank in any
fiduciary capacity, the conduct of its business in any fiduciary capacity, or
the conduct of its other banking business; to sign and issue checks, drafts,
orders for the payment of money and certificates of deposit; to sign and endorse
bills of exchange, to sign and countersign foreign and domestic letters of
credit, to receive and receipt for payments of principal, interest, dividends,
rents, fees and payments of every kind and description paid to the Bank, to sign
receipts for money or other property acquired by or entrusted to the Bank, to
guarantee the genuineness of signatures on assignments of stocks, bonds or other
securities, to sign certifications of checks, to endorse and deliver checks,
drafts, warrants, bills, notes, certificates of deposit and acceptances in all
business transactions of the Bank; also to foreclose any mortgage, to execute
and deliver receipts for any money or property; also to sign stock certificates
for and on behalf of this Bank as transfer agent or registrar, and to
authenticate bonds, debentures, land or lease trust certificates or other forms
of security issued pursuant to any indenture under which this Bank now or
hereafter is acting as trustee or in any other fiduciary capacity; to execute
and deliver various forms of documents or agreements necessary to effectuate
certain investment strategies for various fiduciary or custody customers of the
Bank, including, without limitation, exchange funds, options, both listed and
over-the-counter, commodities trading, futures trading, hedge funds, limited
partnerships, venture capital funds, swap or collar transactions and other
similar investment vehicles for which the Bank now or in the future may deem
appropriate for investment of fiduciary customers or in which non-fiduciary
customers may direct investment by the Bank.
20
<PAGE> 20
Without limitation on the foregoing, the Chief Executive Officer, Chairman of
the Board, or President of the Bank shall have the authority from time to time
to appoint officers of the Bank as Vice President for the sole purpose of
executing releases or other documents incidental to the conduct of the Bank's
business in any fiduciary capacity where required by state law or the governing
document. In addition, other persons in the employment of the Bank or its
affiliates may be authorized by the Chief Executive Officer, Chairman of the
Board, President, Senior Managing Directors, Managing Directors, or Chief
Financial Officer to perform acts and to execute the documents described in the
paragraph above, subject, however, to such limitations and conditions as are
contained in the authorization given to such person.
SECTION 3.05. PERFORMANCE BOND. All officers and employees of the Bank shall be
bonded for the honest and faithful performance of their duties for such amount
as may be prescribed by the Board of Directors.
ARTICLE IV
STOCKS AND STOCK CERTIFICATES
SECTION 4.01. STOCK CERTIFICATES. The shares of stock of the Bank shall be
evidenced by certificates which shall bear the signature of the Chairman of the
Board, the Chief Executive Officer, or the President (which signature may be
engraved, printed or impressed), and shall be signed manually by the Secretary,
or any other officer appointed by the Chief Executive Officer for that purpose.
In case any such officer who has signed or whose facsimile signature has been
placed upon such certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Bank with the same effect as if
such officer had not ceased to be such at the time of its issue. Each such
certificate shall bear the corporate seal of the Bank, shall recite on its face
that stock represented thereby is transferable only upon the books of the Bank
when properly endorsed and shall recite such other information as is required by
law and deemed appropriate by the Board. The corporate seal may be facsimile
engraved or printed.
SECTION 4.02. STOCK ISSUE AND TRANSFER. The shares of stock of the Bank shall be
transferable only upon the stock transfer books of the Bank and, except as
hereinafter provided, no transfer shall be made or new certificates issued
except upon the surrender for cancellation of the certificate or certificates
previously issued therefor. In the case of the loss, theft, or destruction of
any certificate, a new certificate may be issued in place of such certificate
upon the furnishing of an affidavit setting forth the circumstances of such
loss, theft, or destruction and indemnity satisfactory to the Chairman of the
Board, the Chief Executive Officer, or the President. The Board of Directors or
the Chairman of the Board, Chief Executive Officer, or the President may
authorize the issuance of a new certificate therefor without the furnishing of
indemnity. Stock transfer books, in which all transfers of stock shall be
recorded, shall be provided. The stock transfer books may be closed for a
reasonable period and under such conditions as the Board of Directors may at
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<PAGE> 21
any time determine, for any meeting of shareholders, the payment of dividends or
any other lawful purpose. In lieu of closing the transfer books, the Board of
Directors may, in its discretion, fix a record date and hour constituting a
reasonable period prior to the day designated for the holding of any meeting of
the shareholders or the day appointed for the payment of any dividend, or for
any other purpose at the time as of which shareholders entitled to notice of and
to vote at any such meeting or to receive such dividend or to be treated as
shareholders for such other purpose shall be determined, and only shareholders
of record at such time shall be entitled to notice of or to vote at such meeting
or to receive such dividends or to be treated as shareholders for such other
purpose.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.01. SEAL. The seal of the Bank shall be circular in form with "SEAL"
in the center, and the name "BANK ONE TRUST COMPANY, NA" located clockwise
around the upper half of the seal.
SECTION 5.02. MINUTE BOOK. The organization papers of this Bank, the Articles of
Association, the returns of judges of elections, the By-Laws and any amendments
thereto, the proceedings of all regular and special meetings of the shareholders
and of the Board of Directors, and reports of the committees of the Board of
Directors shall be recorded in the minute books of the Bank. The minutes of each
such meeting shall be signed by the presiding officer and attested by the
secretary of the meeting.
SECTION 5.03. CORPORATE POWERS. The corporate existence of the Bank shall
continue until terminated in accordance with the laws of the United States. The
purpose of the Bank shall be to carry on the general business of a commercial
bank trust department and to engage in such activities as are necessary,
incident, or related to such business. The Articles of Association of the Bank
shall not be amended, or any other provision added elsewhere in the Articles
expanding the powers of the Bank, without the prior approval of the Comptroller
of the Currency.
SECTION 5.04. AMENDMENT OF BY-LAWS. The By-Laws may be amended, altered or
repealed, at any regular or special meeting of the Board of Directors, by a vote
of a majority of the Directors.
22
<PAGE> 22
As amended April 24, 1991 Section 3.01 (Officers and Management Staff)
Section 3.02 (Chief Executive Officer)
Section 3.03 (Powers and Duties of Officers
and Management Staff)
Section 3.05 (Execution of Documents)
As amended January 27, 1995 Section 2.04 (Regular Meetings)
Section 2.05 (Special Meetings)
Section 3.01(f) (Officers and Management
Staff)
Section 3.03(e) (Powers and Duties of
Officers and Management Staff)
Section 5.01 (Seal)
Amended and restated in its entirety effective May 1, 1996
As amended August 1, 1996 Section 2.09 (Trust Examining Committee)
Section 2.10 (Other Committees)
As amended October 16, 1997 Section 3.01 (Officers and Management Staff)
Section 3.02 (Powers and Duties of Officers
and Management Staff)
Section 3.04 (Execution of Documents)
As amended January 1, 1998 Section 1.01 (Annual Meeting)
23
<PAGE> 23
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
September 13, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an indenture between Old National
Bancorp and Bank One Trust Company, NA, as Trustee, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
BANK ONE TRUST COMPANY, NA
BY: /s/ Sandra L. Caruba
--------------------------------------
SANDRA L. CARUBA
VICE PRESIDENT
24
<PAGE> 1
EXHIBIT 26.2
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
--------
--------------------
BANK ONE TRUST COMPANY, NA
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 31-0838515
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE TRUST COMPANY, NA
100 EAST BROAD STREET
COLUMBUS, OHIO 43271-0181
ATTN: LINDA J. PATTERSON, SENIOR MANAGING DIRECTOR, (614) 248-5193
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
--------------------
ONB CAPITAL TRUST I
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE APPLIED FOR
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
420 MAIN STREET
EVANSVILLE, INDIANA 47708
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
CAPITAL SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of Governors of
the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF
THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS
STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee now in
effect.
2. A copy of the certificates of authority of the trustee to
commence business.
3. A copy of the authorization of the trustee to exercise
corporate trust powers.
4. A copy of the existing by-laws of the trustee.
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the
Act.
<PAGE> 3
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, NA, a national banking
association organized and existing under the laws of the United States
of America, has duly caused this Statement of Eligibility to be signed
on its behalf by the undersigned, thereunto duly authorized, all in the
City of Chicago and State of Illinois, on the 13th day of September,
1999.
BANK ONE TRUST COMPANY, NA,
TRUSTEE
BY /s/ Sandra L. Caruba
---------------------------------------------------
SANDRA L. CARUBA
VICE PRESIDENT
<PAGE> 4
EXHIBIT 1
A COPY OF THE ARTICLES OF ASSOCIATION OF THE
TRUSTEE NOW IN EFFECT
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
BANK ONE TRUST COMPANY, NA
FIRST. The title of this Association shall be BANK ONE TRUST COMPANY, NA.
SECOND. The main office of the Association shall be in the City of Columbus,
County of Franklin, State of Ohio.
The business of the Association will be limited to the fiduciary powers and the
support of activities incidental to the exercise of those powers. The
Association will not expand or alter its business beyond that stated in this
article without the prior approval of the Comptroller of the Currency.
THIRD. The Board of Directors of this Association shall consist of not less than
five nor more than twenty-five persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full Board of
Directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director shall own common or preferred stock of
the Association, or of a holding company owning the Association, with an
aggregate par, fair market or equity value of not less than $1,000, as of either
(i) the date of purchase, (ii) the date the person became a director, or (iii)
the date of that person's most recent election to the Board of Directors,
whichever is more recent. Any combination of common or preferred stock of the
Association or holding company may be used.
Any vacancy in the Board of Directors may be filled by action of a majority of
the remaining directors between meetings of shareholders. The Board of Directors
may not increase the number of directors between meetings of shareholders to a
number which: (1) exceeds by more than two the number of directors last elected
by shareholders where the number was 15 or less; or (2) exceeds by more than
four the number of directors last elected by shareholders where the number was
16 or more, but in no event shall the number of directors exceed 25.
Terms of directors, including directors selected to fill vacancies, shall expire
at the next regular meeting of shareholders at which directors are elected,
unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
<PAGE> 5
Honorary or advisory members of the Board of Directors, without voting power or
power of final decision in matters concerning the business of the Association,
may be appointed by resolution of a majority of the full Board of Directors, or
by resolution of shareholders at any annual or special meeting. Honorary or
advisory directors shall not be counted to determine the number of directors of
the Association or the presence of a quorum in connection with any board action,
and shall not be required to own qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It shall
be held at the main office or any other convenient place the Board of Directors
may designate, on the day of each year specified therefor in the Bylaws or, if
that day falls on a legal holiday in the state in which the Association is
located, on the next following banking day. If no election is held on the day
fixed or in the event of a legal holiday on the following banking day, an
election may be held on any subsequent day within 60 days of the day fixed, to
be designated by the Board of Directors or, if the directors fail to fix the
day, by shareholders representing two-thirds of the shares issued and
outstanding. In all cases at least 10 days advance notice of the meeting shall
be given to the shareholders by first class mail.
In all elections of directors, the number of votes each common shareholder may
cast will be determined by multiplying the number of shares such shareholder
owns by the number of directors to be elected. Those votes may be cumulated and
cast for a single candidate or may be distributed among two or more candidates
in the manner selected by the shareholder. On all other questions, each common
shareholder shall be entitled to one vote for each share of stock held by such
shareholder. If the issuance of preferred stock with voting rights has been
authorized by a vote of shareholders owning a majority of the common stock of
the association, preferred shareholders will have cumulative voting rights and
will be included within the same class as common shareholders, for purposes of
elections of directors.
A director may resign at any time by delivering written notice to the Board of
Directors, its chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of the
affirmative requirements for qualification, or for cause, provided, however,
that a director may not be removed if the number of votes sufficient to elect
him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of this Association shall be
eighty thousand shares of common stock of the par value of ten dollars ($10.00)
each; but said capital stock may be increased or decreased from time to time,
according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time
<PAGE> 6
determine and at such price as the Board of Directors may from time to time fix.
Unless otherwise specified in the Articles of Association or required by law,
(1) all matters requiring shareholder action, including amendments to the
Articles of Association, must be approved by shareholders owning a majority
voting interest in the outstanding voting stock, and (2) each shareholder shall
be entitled to one vote per share.
Unless otherwise specified in the Articles of Association or required by law,
all shares of voting stock shall be voted together as a class on any matters
requiring shareholder approval. If a proposed amendment would affect two or more
classes or series in the same or a substantially similar way, all the classes or
series so affected must vote together as a single voting group on the proposed
amendment.
Shares of the same class or series may be issued as a dividend on a pro rata
basis and without consideration. Shares of another class or series may be issued
as share dividends in respect of a class or series of stock if approved by a
majority of the votes entitled to be cast by the class or series to be issued
unless there are no outstanding shares of the class or series to be issued.
Unless otherwise provided by the Board of Directors, the record date for
determining shareholders entitled to a share dividend shall be the date the
Board of Directors authorizes the share dividend.
Unless otherwise provided in the Bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close of
business on the day before the first notice is mailed or otherwise sent to the
shareholders, provided that in no event may a record date be more than 70 days
before the meeting.
If a shareholder is entitled to fractional shares pursuant to preemptive rights,
a stock dividend, consolidation or merger, reverse stock split or otherwise, the
Association may: (a) issue fractional shares or; (b) in lieu of the issuance of
fractional shares, issue script or warrants entitling the holder to receive a
full share upon surrendering enough script or warrants to equal a full share;
(c) if there is an established and active market in the Association's stock,
make reasonable arrangements to provide the shareholder with an opportunity to
realize a fair price through sale of the fraction, or purchase of the additional
fraction required for a full share; (d) remit the cash equivalent of the
fraction to the shareholder; or (e) sell full shares representing all the
fractions at public auction or to the highest bidder after having solicited and
received sealed bids from at least three licensed stock brokers, and distribute
the proceeds pro rata to shareholders who otherwise would be entitled to the
fractional shares. The holder of a fractional share is entitled to exercise the
rights for shareholder, including the right to vote, to receive dividends, and
to participate in the assets of the Association upon liquidation, in proportion
to the fractional interest. The holder of script or warrants is not entitled to
any of these rights unless the script or warrants explicitly provide for such
rights. The script or warrants may be subject to such additional conditions as:
(1) that the script or warrants will become void if not exchanged for full
shares before a specified date; and (2) that the shares for which the script or
warrants are exchangeable may be sold at the option of the Association and the
proceeds paid to scriptholders.
<PAGE> 7
The Association, at any time and from time to time, may authorize and issue debt
obligations, whether or not subordinated, without the approval of the
shareholders. Obligations classified as debt, whether or not subordinated, which
may be issued by the Association without the approval of shareholders, do not
carry voting rights on any issue, including an increase or decrease in the
aggregate number of the securities, or the exchange or reclassification of all
or part of securities into securities of another class or series.
SIXTH. The Board of Directors shall appoint one of its members president of this
Association, and one of its members chairperson of the board and shall have the
power to appoint one or more vice presidents, a secretary who shall keep minutes
of the directors' and shareholders' meetings and be responsible for
authenticating the records of the Association, and such other officers and
employees as may be required to transact the business of this Association. A
duly appointed officer may appoint one or more officers or assistant officers if
authorized by the Board of Directors in accordance with the Bylaws. The Board of
Directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of the
Association.
(2) Delegate the performance of its duties, but not the responsibility for
its duties, to the officers, employees, and agents of the Association.
(3) Fix the compensation and enter into employment contracts with its
officers and employees upon reasonable terms and conditions consistent
with applicable law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and to fix the penalty
thereof.
(6) Ratify written policies authorized by the Association's management or
committees of the board.
(7) Regulate the manner in which any increase or decrease of the capital of
the Association shall be made, provided that nothing herein shall
restrict the power of shareholders to increase or decrease the capital
of the association in accordance with law, and nothing shall raise or
lower from two-thirds the percentage for shareholder approval to
increase or reduce the capital.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial Bylaws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of
the Association.
(10) Amend or repeal Bylaws, except to the extent that the Articles of
Association reserve this power in whole or in part to shareholders.
(11) Make contracts.
(12) Generally perform all acts that are legal for a Board of Directors to
perform.
<PAGE> 8
SEVENTH. The Board of Directors shall have the power to change the location of
the main office of this Association to any other place within the limits of the
City of Columbus, State of Ohio, without the approval of the shareholders; and
shall have the power to change the location of the main office of this
Association to any other place outside the limits of the City of Columbus, State
of Ohio, but not more than thirty miles beyond such limits, with the affirmative
vote of shareholders owning two-thirds of the stock of the Association, subject
to receipt of a certificate of approval from the Comptroller of the Currency.
The Board of Directors shall have the power to establish or change the location
of any branch or branches of the Association to any other location permitted
under applicable law without the approval of the shareholders, subject to
approval by the Office of the Comptroller of the Currency. The Board of
Directors shall have the power to establish or change the location of any
nonbranch office or facility of the Association without the approval of the
shareholders.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
NINTH. The Board of Directors of this Association, or any shareholders owning,
in the aggregate, not less than 20 percent of the stock of this Association, may
call a special meeting of shareholders at any time. Unless otherwise provided by
the Bylaws or the laws of the United States, or waived by shareholders, a notice
of the time, place, and purpose of every annual and special meeting of the
shareholders shall be given by first-class mail, postage prepaid, mailed at
least 10, and no more than 60, days prior to the date of the meeting to each
shareholder of record at his/her address as shown upon the books of this
Association. Unless otherwise provided by the Bylaws, any action requiring
approval of shareholders must be effected at a duly called annual or special
meeting.
TENTH. The Association shall provide indemnification as set forth below:
Every person who is or was a Director, officer or employee of the Association or
of any other corporation which he served as a Director, officer or employee at
the request of the Association as part of his regularly assigned duties may be
indemnified by the Association in accordance with the provisions of this Article
against all liability (including, without limitation, judgments, fines,
penalties, and settlements) and all reasonable expenses (including, without
limitation, attorneys' fees and investigative expenses) that may be incurred or
paid by him in connection with any claim, action, suit or proceeding, whether
civil, criminal or administrative (all referred to hereafter in this Article as
"Claims") or in connection with any appeal relating thereto in which he may
become involved as a party or otherwise or with which he may be threatened by
reason of his being or having been a Director, officer or employee of the
Association or such other corporation, or by reason of any action taken or
omitted by him in his capacity as such Director, officer or employee, whether or
not he continues to be such at the time such liability or expenses are incurred;
provided that nothing contained in this Article shall be construed to permit
indemnification of any such person who is adjudged guilty of, or liable for,
willful misconduct, gross neglect of duty or criminal acts, unless, at the time
such indemnification is sought, such indemnification in such instance is
permissible under applicable law and regulations, including published rulings of
the Comptroller of the Currency or other appropriate supervisory or regulatory
authority; and provided further that there shall be no indemnification of
Directors, officers, or employees against expenses, penalties, or other payments
incurred in an administrative proceeding or action instituted by an appropriate
regulatory agency which proceeding or action results in a final order assessing
civil money penalties or requiring affirmative action by an individual or
individuals in the form of payments to the Association.
<PAGE> 9
Every person who may be indemnified under the provisions of this Article and who
has been wholly successful on the merits with respect to any Claim shall be
entitled to indemnification as of right. Except as provided in the preceding
sentence, any indemnification under this Article shall be at the sole discretion
of the Board of Directors and shall be made only if the Board of Directors or
the Executive Committee acting by a quorum consisting of Directors who are not
parties to such Claim shall find or if independent legal counsel (who may be the
regular counsel of the Association) selected by the Board of Directors or
Executive Committee whether or not a disinterested quorum exists shall render
their opinion that in view of all of the circumstances then surrounding the
Claim, such indemnification is equitable and in the best interests of the
Association. Among the circumstances to be taken into consideration in arriving
at such a finding or opinion is the existence or non-existence of a contract of
insurance or indemnity under which the Association would be wholly or partially
reimbursed for such indemnification, but the existence or non-existence of such
insurance is not the sole circumstance to be considered nor shall it be wholly
determinative of whether such indemnification shall be made. In addition to such
finding or opinion, no indemnification under this Article shall be made unless
the Board of Directors or the Executive Committee acting by a quorum consisting
of Directors who are not parties to such Claim shall find or if independent
legal counsel (who may be the regular counsel of the Association) selected by
the Board of Directors or Executive Committee whether or not a disinterested
quorum exists shall render their opinion that the Directors, officer or employee
acted in good faith in what he reasonably believed to be the best interests of
the Association or such other corporation and further in the case of any
criminal action or proceeding, that the Director, officer or employee reasonably
believed his conduct to be lawful. Determination of any Claim by judgment
adverse to a Director, officer or employee by settlement with or without Court
approval or conviction upon a plea of guilty or of nolo contendere or its
equivalent shall not create a presumption that a Director, officer or employee
failed to meet the standards of conduct set forth in this Article. Expenses
incurred with respect to any Claim may be advanced by the Association prior to
the final disposition thereof upon receipt of an undertaking satisfactory to the
Association by or on behalf of the recipient to repay such amount unless it is
ultimately determined that he is entitled to indemnification under this Article.
The rights of indemnification provided in this Article shall be in addition to
any rights to which any Director, officer or employee may otherwise be entitled
by contract or as a matter of law. Every person who shall act as a Director,
officer or employee of this Association shall be conclusively presumed to be
doing so in reliance upon the right of indemnification provided for in this
Article.
<PAGE> 10
ELEVENTH. These Articles of Association may be amended at any regular or special
meeting of the shareholders by the affirmative vote of the holders of a majority
of the stock of this Association, unless the vote of the holders of a greater
amount of stock is required by law, and in that case by the vote of the holders
of such greater amount. The Association's Board of Directors may propose one or
more amendments to the Articles of Association for submission to the
shareholders.
<PAGE> 11
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE TRUSTEE
TO EXERCISE CORPORATE TRUST POWERS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter No.
16235) was granted, under the hand and seal of the Comptroller, the right to act
in all fiduciary capacities authorized under the provisions of the Act of
Congress approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a, and that the
authority so granted remains in full force and effect on the date of this
Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
24th day of March, 1999.
/s/ John D. Hawke, Jr.
----------------------
Comptroller of the Currency
<PAGE> 12
EXHIBIT 4
A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE
BANK ONE TRUST COMPANY, N.A.
BY-LAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1.01. ANNUAL MEETING. The regular annual meeting of the shareholders of
the Bank for the election of Directors and for the transaction of such business
as may properly come before the meeting shall be held at its main office, or
other convenient place duly authorized by the Board of Directors, on the same
day upon which any regular or special Board meeting is held from and including
the first Monday of January to, and including, the fourth Monday of February of
each year, or on the next succeeding banking day, if the day fixed falls on a
legal holiday. If from any cause, an election of Directors is not made on the
day fixed for the regular meeting of the shareholders or, in the event of a
legal holiday, on the next succeeding banking day, the Board of Directors shall
order the election to be held on some subsequent day, as soon thereafter as
practicable, according to the provisions of law; and notice thereof shall be
given in the manner herein provided for the annual meeting. Notice of such
annual meeting shall be given by or under the direction of the Secretary, or
such other officer as may be designated by the Chief Executive Officer, by
first-class mail, postage prepaid, to all shareholders of record of the Bank at
their respective addresses as shown upon the books of the Bank mailed not less
than ten days prior to the date fixed for such meeting.
SECTION 1.02. SPECIAL MEETINGS. A special meeting of the shareholders of the
Bank may be called at any time by the Board of Directors or by any three or more
shareholders owning, in the aggregate, not less than ten percent of the stock of
the Bank. Notice of any special meeting of the shareholders called by the Board
of Directors, stating the time, place and purpose of the meeting, shall be given
by or under the direction of the Secretary, or such other officer as is
designated by the Chief Executive Officer, by first-class mail, postage prepaid,
to all shareholders of record of the Bank at their respective addresses as shown
upon the books of the Bank mailed not less than ten days prior to the date fixed
for such meeting. Any special meeting of shareholders shall be conducted and its
proceedings recorded in the manner prescribed in these By-Laws for annual
meetings of shareholders.
13
<PAGE> 13
SECTION 1.03. SECRETARY OF MEETING OF SHAREHOLDERS. The Board of Directors may
designate a person to be the secretary of the meeting of shareholders. In the
absence of a presiding officer, as designated by these By-Laws, the Board of
Directors may designate a person to act as the presiding officer. In the event
the Board of Directors fails to designate a person to preside at a meeting of
shareholders and a secretary of such meeting, the shareholders present or
represented shall elect a person to preside and a person to serve as secretary
of the meeting. The secretary of the meeting of shareholders shall cause the
returns made by the judges of election and other proceedings to be recorded in
the minute books of the Bank. The presiding officer shall notify the
Directors-elect of their election and to meet forthwith for the organization of
the new Board of Directors. The minutes of the meeting shall be signed by the
presiding officer and the secretary designated for the meeting.
SECTION 1.04. JUDGES OF ELECTION. The Board of Directors may appoint as many as
three shareholders to be judges of the election, who shall hold and conduct the
same, and who shall, after the election has been held, notify, in writing over
their signatures, the secretary of the meeting of shareholders of the result
thereof and the names of the Directors elected; provided, however, that upon
failure for any reason of any judge or judges of election, so appointed by the
Directors, to serve, the presiding officer of the meeting shall appoint other
shareholders or their proxies to fill the vacancies. The judges of election, at
the request of the chairman of the meeting, shall act as tellers of any other
vote by ballot taken at such meeting, and shall notify, in writing over their
signature, the secretary of the Board of Directors of the result thereof.
SECTION 1.05. PROXIES. In all elections of Directors, each shareholder of
record, who is qualified to vote under the provisions of Federal Law, shall have
the right to vote the number of shares of record in such shareholder's name for
as many persons as there are Directors to be elected, or to cumulate such shares
as provided by Federal Law. In deciding all other questions at meetings of
shareholders, each shareholder shall be entitled to one vote on each share of
stock of record in such shareholder's name. Shareholders may vote by proxy duly
authorized in writing. All proxies used at the annual meeting shall be secured
for that meeting only, or any adjournment thereof, and shall be dated, if not
dated by the shareholder, as of the date of the receipt thereof. No officer or
employee of this Bank may act as proxy.
SECTION 1.06. QUORUM. Holders of record of a majority of the shares of the
capital stock of the Bank, eligible to be voted, present either in person or by
proxy, shall constitute a quorum for the transaction of business at any meeting
of shareholders, but shareholders present at any meeting and constituting less
than a quorum may, without further notice, adjourn the meeting from time to time
until a quorum is obtained. A majority of the votes cast shall decide every
question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
DIRECTORS
SECTION 2.01. QUALIFICATIONS. Each Director shall have the qualifications
prescribed by law. No person elected as a Director may exercise any of the
powers of office until such Director has taken the oath of such office.
SECTION 2.02. VACANCIES. Directors of the Bank shall hold office for one year or
until their successors are elected and qualified. Any vacancy in the Board shall
be filled by appointment of the remaining Directors, and any Director so
appointed shall hold office until the next election.
14
<PAGE> 14
SECTION 2.03. ORGANIZATION MEETING. The Directors elected by the shareholders
shall meet for organization of the new Board of Directors at the time and place
fixed by the presiding officer of the annual meeting. If at the time fixed for
such meeting there is no quorum present, the Directors in attendance may adjourn
from time to time until a quorum is obtained. A majority of the number of
Directors elected by the shareholders shall constitute a quorum for the
transaction of business.
SECTION 2.04. REGULAR MEETINGS. The regular meetings of the Board of Directors
shall be held at such date, time and place as the Board may previously
designate, or should the Board fail to so designate, at such date, time and
place as the Chairman of the Board, Chief Executive Officer, or President may
fix. Whenever a quorum is not present, the Directors in attendance shall adjourn
the meeting to a time not later than the date fixed by the By-Laws for the next
succeeding regular meeting of the Board. Members of the Board of Directors may
participate in such meetings through use of conference telephone or similar
communications equipment, so long as all members participating in such meetings
can hear one another.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the Board of Directors shall
be held at the call of the Chairman of the Board, Chief Executive Officer, or
President, or at the request of two or more Directors. Any special meeting may
be held at such place and at such time as may be fixed in the call. Written or
oral notice shall be given to each Director not later than the day next
preceding the day on which the special meeting is to be held, which notice may
be waived in writing. The presence of a Director at any meeting of the Board of
Directors shall be deemed a waiver of notice thereof by such Director. Whenever
a quorum is not present, the Directors in attendance shall adjourn the special
meeting from day to day until a quorum is obtained. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.06. QUORUM. A majority of the Directors shall constitute a quorum at
any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as herein
defined, but at least one-third and not less than two of the authorized number
of Directors are present at a meeting of the Directors, business of the Bank may
be transacted and matters before the Board approved or disapproved by the
unanimous vote of the Directors present.
SECTION 2.07. COMPENSATION. Each member of the Board of Directors shall receive
such fees for attendance at Board and Board committee meetings and such fees for
service as a Director, irrespective of meeting attendance, as from time to time
are fixed by resolution of the Board; provided, however, that payment hereunder
shall not be made to a Director for meetings attended and/or Board service which
are not for the Bank's sole benefit and which are concurrent and duplicative
with meetings attended or Board service for an affiliate of the Bank for which
the Director receives payment; and provided further that fees hereunder shall
not be paid in the case of any Director in the regular employment of the Bank or
of one of its affiliates. Each member of the Board of Directors, whether or not
such Director is in the regular employment of the Bank or of one of its
affiliates, shall be reimbursed for travel expenses incident to attendance at
Board and Board committee meetings.
15
<PAGE> 15
SECTION 2.02. VACANCIES. Directors of the Bank shall hold office for one year or
until their successors are elected and qualified. Any vacancy in the Board shall
be filled by appointment of the remaining Directors, and any Director so
appointed shall hold office until the next election.
SECTION 2.03. ORGANIZATION MEETING. The Directors elected by the shareholders
shall meet for organization of the new Board of Directors at the time and place
fixed by the presiding officer of the annual meeting. If at the time fixed for
such meeting there is no quorum present, the Directors in attendance may adjourn
from time to time until a quorum is obtained. A majority of the number of
Directors elected by the shareholders shall constitute a quorum for the
transaction of business.
SECTION 2.04. REGULAR MEETINGS. The regular meetings of the Board of Directors
shall be held at such date, time and place as the Board may previously
designate, or should the Board fail to so designate, at such date, time and
place as the Chairman of the Board, Chief Executive Officer, or President may
fix. Whenever a quorum is not present, the Directors in attendance shall adjourn
the meeting to a time not later than the date fixed by the By-Laws for the next
succeeding regular meeting of the Board. Members of the Board of Directors may
participate in such meetings through use of conference telephone or similar
communications equipment, so long as all members participating in such meetings
can hear one another.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the Board of Directors shall
be held at the call of the Chairman of the Board, Chief Executive Officer, or
President, or at the request of two or more Directors. Any special meeting may
be held at such place and at such time as may be fixed in the call. Written or
oral notice shall be given to each Director not later than the day next
preceding the day on which the special meeting is to be held, which notice may
be waived in writing. The presence of a Director at any meeting of the Board of
Directors shall be deemed a waiver of notice thereof by such Director. Whenever
a quorum is not present, the Directors in attendance shall adjourn the special
meeting from day to day until a quorum is obtained. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.06. QUORUM. A majority of the Directors shall constitute a quorum at
any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as herein
defined, but at least one-third and not less than two of the authorized number
of Directors are present at a meeting of the Directors, business of the Bank may
be transacted and matters before the Board approved or disapproved by the
unanimous vote of the Directors present.
SECTION 2.07. COMPENSATION. Each member of the Board of Directors shall receive
such fees for attendance at Board and Board committee meetings and such fees for
service as a Director, irrespective of meeting attendance, as from time to time
are fixed by resolution of the Board; provided, however, that payment hereunder
shall not be made to a Director for meetings attended and/or Board service which
are not for the Bank's sole benefit and which are concurrent and duplicative
15
<PAGE> 16
with meetings attended or Board service for an affiliate of the Bank for which
the Director receives payment; and provided further that fees hereunder shall
not be paid in the case of any Director in the regular employment of the Bank
or of one of its affiliates. Each member of the Board of Directors, whether or
not such Director is in the regular employment of the Bank or of one of its
affiliates, shall be reimbursed for travel expenses incident to attendance at
Board and Board committee meetings.
SECTION 2.08. EXECUTIVE COMMITTEE. There may be a standing committee of the
Board of Directors known as the Executive Committee which shall possess and
exercise, when the Board is not in session, all the powers of the Board that may
lawfully be delegated. The Executive Committee shall consist of at least three
Board members, one of whom shall be the Chairman of the Board, Chief Executive
Officer or the President. The other members of the Executive Committee shall be
appointed by the Chairman of the Board, the Chief Executive Officer, or the
President, with the approval of the Board, and who shall continue as members of
the Executive Committee until their successors are appointed, provided, however,
that any member of the Executive Committee may be removed by the Board upon a
majority vote thereof at any regular or special meeting of the Board. The
Chairman, Chief Executive Officer, or President shall fill any vacancy in the
Executive Committee by the appointment of another Director, subject to the
approval of the Board of Directors. The Executive Committee shall meet at the
call of the Chairman, Chief Executive Officer, or President or any two members
thereof at such time or times and place as may be designated. In the event of
the absence of any member or members of the Executive Committee, the presiding
member may appoint a member or members of the Board to fill the place or places
of such absent member or members to serve during such absence. Two members of
the Executive Committee shall constitute a quorum. When neither the Chairman of
the Board, the Chief Executive Officer, nor President are present, the Executive
Committee shall appoint a presiding officer. The Executive Committee shall
report its proceedings and the action taken by it to the Board of Directors.
SECTION 2.09. OTHER COMMITTEES. The Board of Directors may appoint such special
committees from time to time as are in its judgment necessary in the interest of
the Bank.
ARTICLE III
OFFICERS, MANAGEMENT STAFF AND EMPLOYEES
SECTION 3.01. OFFICERS AND MANAGEMENT STAFF.
(a) The executive officers of the Bank shall include a Chairman of the Board,
Chief Executive Officer, President, Chief Financial Officer, Secretary, Security
Officer, and may include one or more Senior Managing Directors or Managing
Directors. The Chairman of the Board, Chief Executive Officer, President, any
Senior Managing Director, any Managing Director, Chief Financial Officer,
Secretary, and Security Officer shall be elected by the Board. The Chairman of
the Board, Chief Executive Officer, and the President shall be elected by the
Board from their own number. Such officers as the Board shall elect from their
own number shall hold office from the date of their election as officers until
the organization meeting of the Board of Directors following the next annual
meeting of shareholders, provided, however, that such officers may be relieved
of their duties at any time by action of the Board of Directors, in which event
all the powers incident to their office shall immediately terminate. The
Chairman of the Board, Chief Executive Officer, or the President shall preside
at all meetings of shareholders and meetings of the Board of Directors.
16
<PAGE> 17
(b) The management staff of the Bank shall include officers elected by the
Board, officers appointed by the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and such other persons in the employment of the Bank
who, pursuant to authorization by a duly authorized officer of the Bank, perform
management functions and have management responsibilities. Any two or more
offices may be held by the same person except that no person shall hold the
office of Chairman of the Board, Chief Executive Officer and/or President and at
the same time also hold the office of Secretary.
(c) Except as provided in the case of the elected officers who are members of
the Board, all officers and employees, whether elected or appointed, shall hold
office at the pleasure of the Board. Except as otherwise limited by law or these
By-Laws, the Board assigns to the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and/or each of their respective designees the authority
to control all personnel, including elected and appointed officers and employees
of the Bank, to employ or direct the employment of such officers and employees
as he or she may deem necessary, including the fixing of salaries and the
dismissal of such officers and employees at pleasure, and to define and
prescribe the duties and responsibilities of all officers and employees of the
Bank, subject to such further limitations and directions as he or she may from
time to time deem appropriate.
(d) The Chairman of the Board, the Chief Executive Officer, the President, any
Senior Managing Director, any Managing Director, the Chief Financial Officer,
and any other officer of the Bank, to the extent that such officer is authorized
in writing by the Chairman of the Board, the Chief Executive Officer, the
President, any Senior Managing Director, any Managing Director, or the Chief
Financial Officer may appoint persons other than officers who are in employment
of the Bank to serve in management positions and in connection therewith, the
appointing officer may assign such title, salary, responsibilities and functions
as are deemed appropriate, provided, however, that nothing contained herein
shall be construed as placing any limitation on the authority of the Chairman of
the Board, the Chief Executive Officer, the President, any Senior Managing
Director, any Managing Director, or the Chief Financial Officer as provided in
this and other sections of these By-Laws.
(e) The Senior Managing Directors and the Managing Directors of the Bank shall
have general and active authority over the management of the business of the
Bank, shall see that all orders and resolutions of the Board of Directors are
carried into effect, and shall do or cause to be done all things necessary or
proper to carry on the business of the Bank in accordance with provisions of
applicable law and regulations. Each Senior Managing Director and Managing
Director shall perform all duties incident to his or her office and such other
and further duties, as may from time to time be required by the Chief Executive
Officer, the President, the Board of Directors, or the shareholders. The
specification of authority in these By-Laws wherever and to whomever granted
shall not be construed to limit in any manner the general powers of delegation
granted to a Senior Managing Director or a Managing Director in conducting the
business of the Bank. In the absence of a Senior Managing Director or a Managing
Director, such officer as is designated by the Senior Managing Director or the
Managing Director shall be vested with all the powers and perform all the duties
of the Senior Managing Director or the Managing Director as defined by these
By-Laws.
17
<PAGE> 18
SECTION 3.04. EXECUTION OF DOCUMENTS. Any member of the Bank's management staff
or any employee of the Bank designated as an officer on the Bank's payroll
system is hereby authorized for and on behalf of the Bank to sell, assign,
lease, mortgage, transfer, deliver and convey any real or personal property,
including shares of stock, bonds, notes, certificates of indebtedness (including
the assignment and redemption of registered United States obligations) and all
other forms of intangible property now or hereafter owned by or standing in the
name of the Bank, or its nominee, or held by the Bank as collateral security, or
standing in the name of the Bank, or its nominee, in any fiduciary capacity or
in the name of any principal for whom this Bank may now or hereafter be acting
under a power of attorney or as agent, and to execute and deliver such partial
releases from any discharges or assignments of mortgages and assignments or
surrender of insurance policies, deeds, contracts, assignments or other papers
or documents as may be appropriate in the circumstances now or hereafter held by
the Bank in its own name, in a fiduciary capacity, or owned by any principal for
whom this Bank may now or hereafter be acting under a power of attorney or as
agent; provided, however, that, when necessary, the signature of any such person
shall be attested or witnessed in each case by another officer of the Bank.
Any member of the Bank's management staff or any employee of the Bank designated
as an officer on the Bank's payroll system is hereby authorized for and on
behalf of the Bank to execute any indemnity and fidelity bonds, trust
agreements, proxies or other papers or documents of like or different character
necessary, desirable or incidental to the appointment of the Bank in any
fiduciary capacity, the conduct of its business in any fiduciary capacity, or
the conduct of its other banking business; to sign and issue checks, drafts,
orders for the payment of money and certificates of deposit; to sign and endorse
bills of exchange, to sign and countersign foreign and domestic letters of
credit, to receive and receipt for payments of principal, interest, dividends,
rents, fees and payments of every kind and description paid to the Bank, to sign
receipts for money or other property acquired by or entrusted to the Bank, to
guarantee the genuineness of signatures on assignments of stocks, bonds or other
securities, to sign certifications of checks, to endorse and deliver checks,
drafts, warrants, bills, notes, certificates of deposit and acceptances in all
business transactions of the Bank; also to foreclose any mortgage, to execute
and deliver receipts for any money or property; also to sign stock certificates
for and on behalf of this Bank as transfer agent or registrar, and to
authenticate bonds, debentures, land or lease trust certificates or other forms
of security issued pursuant to any indenture under which this Bank now or
hereafter is acting as trustee or in any other fiduciary capacity; to execute
and deliver various forms of documents or agreements necessary to effectuate
certain investment strategies for various fiduciary or custody customers of the
Bank, including, without limitation, exchange funds, options, both listed and
over-the-counter, commodities trading, futures trading, hedge funds, limited
partnerships, venture capital funds, swap or collar transactions and other
similar investment vehicles for which the Bank now or in the future may deem
appropriate for investment of fiduciary customers or in which non-fiduciary
customers may direct investment by the Bank.
20
<PAGE> 19
Without limitation on the foregoing, the Chief Executive Officer, Chairman of
the Board, or President of the Bank shall have the authority from time to time
to appoint officers of the Bank as Vice President for the sole purpose of
executing releases or other documents incidental to the conduct of the Bank's
business in any fiduciary capacity where required by state law or the governing
document. In addition, other persons in the employment of the Bank or its
affiliates may be authorized by the Chief Executive Officer, Chairman of the
Board, President, Senior Managing Directors, Managing Directors, or Chief
Financial Officer to perform acts and to execute the documents described in the
paragraph above, subject, however, to such limitations and conditions as are
contained in the authorization given to such person.
SECTION 3.05. PERFORMANCE BOND. All officers and employees of the Bank shall be
bonded for the honest and faithful performance of their duties for such amount
as may be prescribed by the Board of Directors.
ARTICLE IV
STOCKS AND STOCK CERTIFICATES
SECTION 4.01. STOCK CERTIFICATES. The shares of stock of the Bank shall be
evidenced by certificates which shall bear the signature of the Chairman of the
Board, the Chief Executive Officer, or the President (which signature may be
engraved, printed or impressed), and shall be signed manually by the Secretary,
or any other officer appointed by the Chief Executive Officer for that purpose.
In case any such officer who has signed or whose facsimile signature has been
placed upon such certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Bank with the same effect as if
such officer had not ceased to be such at the time of its issue. Each such
certificate shall bear the corporate seal of the Bank, shall recite on its face
that stock represented thereby is transferable only upon the books of the Bank
when properly endorsed and shall recite such other information as is required by
law and deemed appropriate by the Board. The corporate seal may be facsimile
engraved or printed.
SECTION 4.02. STOCK ISSUE AND TRANSFER. The shares of stock of the Bank shall be
transferable only upon the stock transfer books of the Bank and, except as
hereinafter provided, no transfer shall be made or new certificates issued
except upon the surrender for cancellation of the certificate or certificates
previously issued therefor. In the case of the loss, theft, or destruction of
any certificate, a new certificate may be issued in place of such certificate
upon the furnishing of an affidavit setting forth the circumstances of such
loss, theft, or destruction and indemnity satisfactory to the Chairman of the
Board, the Chief Executive Officer, or the President. The Board of Directors or
the Chairman of the Board, Chief Executive Officer, or the President may
authorize the issuance of a new certificate therefor without the furnishing of
indemnity. Stock transfer books, in which all transfers of stock shall be
recorded, shall be provided. The stock transfer books may be closed for a
reasonable period and under such conditions as the Board of Directors may at
21
<PAGE> 20
any time determine, for any meeting of shareholders, the payment of dividends or
any other lawful purpose. In lieu of closing the transfer books, the Board of
Directors may, in its discretion, fix a record date and hour constituting a
reasonable period prior to the day designated for the holding of any meeting of
the shareholders or the day appointed for the payment of any dividend, or for
any other purpose at the time as of which shareholders entitled to notice of and
to vote at any such meeting or to receive such dividend or to be treated as
shareholders for such other purpose shall be determined, and only shareholders
of record at such time shall be entitled to notice of or to vote at such meeting
or to receive such dividends or to be treated as shareholders for such other
purpose.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.01. SEAL. The seal of the Bank shall be circular in form with "SEAL"
in the center, and the name "BANK ONE TRUST COMPANY, NA" located clockwise
around the upper half of the seal.
SECTION 5.02. MINUTE BOOK. The organization papers of this Bank, the Articles of
Association, the returns of judges of elections, the By-Laws and any amendments
thereto, the proceedings of all regular and special meetings of the shareholders
and of the Board of Directors, and reports of the committees of the Board of
Directors shall be recorded in the minute books of the Bank. The minutes of each
such meeting shall be signed by the presiding officer and attested by the
secretary of the meeting.
SECTION 5.03. CORPORATE POWERS. The corporate existence of the Bank shall
continue until terminated in accordance with the laws of the United States. The
purpose of the Bank shall be to carry on the general business of a commercial
bank trust department and to engage in such activities as are necessary,
incident, or related to such business. The Articles of Association of the Bank
shall not be amended, or any other provision added elsewhere in the Articles
expanding the powers of the Bank, without the prior approval of the Comptroller
of the Currency.
SECTION 5.04. AMENDMENT OF BY-LAWS. The By-Laws may be amended, altered or
repealed, at any regular or special meeting of the Board of Directors, by a vote
of a majority of the Directors.
22
<PAGE> 21
As amended April 24, 1991 Section 3.01 (Officers and Management Staff)
Section 3.02 (Chief Executive Officer)
Section 3.03 (Powers and Duties of Officers and
Management Staff)
Section 3.05 (Execution of Documents)
As amended January 27, 1995 Section 2.04 (Regular Meetings)
Section 2.05 (Special Meetings)
Section 3.01(f) (Officers and Management Staff)
Section 3.03(e) (Powers and Duties of Officers
and Management Staff)
Section 5.01 (Seal)
Amended and restated in its entirety effective May 1, 1996
As amended August 1, 1996 Section 2.09 (Trust Examining Committee)
Section 2.10 (Other Committees)
As amended October 16, 1997 Section 3.01 (Officers and Management Staff)
Section 3.02 (Powers and Duties of Officers and
Management Staff)
Section 3.04 (Execution of Documents)
As amended January 1, 1998 Section 1.01 (Annual Meeting)
23
<PAGE> 22
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
September 13, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an amended and restated trust agreement
between ONB Capital Trust I and Bank One Trust Company, NA, as Trustee, the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
BANK ONE TRUST COMPANY, NA
BY: /s/ Sandra L. Caruba
--------------------------------------
SANDRA L. CARUBA
VICE PRESIDENT
24
<PAGE> 1
EXHIBIT 26.3
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
-------
-------------------------
BANK ONE TRUST COMPANY, NA
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 31-0838515
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE TRUST COMPANY, NA
100 EAST BROAD STREET
COLUMBUS, OHIO 43271-0181
ATTN: LINDA J. PATTERSON, SENIOR MANAGING DIRECTOR, (614) 248-5193
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
--------------------
ONB CAPITAL TRUST II
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE APPLIED FOR
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
420 MAIN STREET
EVANSVILLE, INDIANA 47708
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
CAPITAL SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO
THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING
AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of
Governors of the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST
POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE
OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART
OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee now
in effect.
2. A copy of the certificates of authority of the trustee to
commence business.
3. A copy of the authorization of the trustee to exercise
corporate trust powers.
4. A copy of the existing by-laws of the trustee.
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
<PAGE> 3
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, NA, a national banking
association organized and existing under the laws of the United States
of America, has duly caused this Statement of Eligibility to be signed
on its behalf by the undersigned, thereunto duly authorized, all in the
City of Chicago and State of Illinois, on the 13th day of September,
1999.
BANK ONE TRUST COMPANY, NA,
TRUSTEE
BY /s/ Sandra L. Caruba
------------------------------------
SANDRA L. CARUBA
VICE PRESIDENT
4
<PAGE> 4
EXHIBIT 1
A COPY OF THE ARTICLES OF ASSOCIATION OF THE
TRUSTEE NOW IN EFFECT
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
BANK ONE TRUST COMPANY, NA
FIRST. The title of this Association shall be BANK ONE TRUST COMPANY, NA.
SECOND. The main office of the Association shall be in the City of Columbus,
County of Franklin, State of Ohio.
The business of the Association will be limited to the fiduciary powers and the
support of activities incidental to the exercise of those powers. The
Association will not expand or alter its business beyond that stated in this
article without the prior approval of the Comptroller of the Currency.
THIRD. The Board of Directors of this Association shall consist of not less than
five nor more than twenty-five persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full Board of
Directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director shall own common or preferred stock of
the Association, or of a holding company owning the Association, with an
aggregate par, fair market or equity value of not less than $1,000, as of either
(i) the date of purchase, (ii) the date the person became a director, or (iii)
the date of that person's most recent election to the Board of Directors,
whichever is more recent. Any combination of common or preferred stock of the
Association or holding company may be used.
Any vacancy in the Board of Directors may be filled by action of a majority of
the remaining directors between meetings of shareholders. The Board of Directors
may not increase the number of directors between meetings of shareholders to a
number which: (1) exceeds by more than two the number of directors last elected
by shareholders where the number was 15 or less; or (2) exceeds by more than
four the number of directors last elected by shareholders where the number was
16 or more, but in no event shall the number of directors exceed 25.
Terms of directors, including directors selected to fill vacancies, shall expire
at the next regular meeting of shareholders at which directors are elected,
unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
5
<PAGE> 5
Honorary or advisory members of the Board of Directors, without voting power or
power of final decision in matters concerning the business of the Association,
may be appointed by resolution of a majority of the full Board of Directors, or
by resolution of shareholders at any annual or special meeting. Honorary or
advisory directors shall not be counted to determine the number of directors of
the Association or the presence of a quorum in connection with any board action,
and shall not be required to own qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It shall
be held at the main office or any other convenient place the Board of Directors
may designate, on the day of each year specified therefor in the Bylaws or, if
that day falls on a legal holiday in the state in which the Association is
located, on the next following banking day. If no election is held on the day
fixed or in the event of a legal holiday on the following banking day, an
election may be held on any subsequent day within 60 days of the day fixed, to
be designated by the Board of Directors or, if the directors fail to fix the
day, by shareholders representing two-thirds of the shares issued and
outstanding. In all cases at least 10 days advance notice of the meeting shall
be given to the shareholders by first class mail.
In all elections of directors, the number of votes each common shareholder may
cast will be determined by multiplying the number of shares such shareholder
owns by the number of directors to be elected. Those votes may be cumulated and
cast for a single candidate or may be distributed among two or more candidates
in the manner selected by the shareholder. On all other questions, each common
shareholder shall be entitled to one vote for each share of stock held by such
shareholder. If the issuance of preferred stock with voting rights has been
authorized by a vote of shareholders owning a majority of the common stock of
the association, preferred shareholders will have cumulative voting rights and
will be included within the same class as common shareholders, for purposes of
elections of directors.
A director may resign at any time by delivering written notice to the Board of
Directors, its chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of the
affirmative requirements for qualification, or for cause, provided, however,
that a director may not be removed if the number of votes sufficient to elect
him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of this Association shall be
eighty thousand shares of common stock of the par value of ten dollars ($10.00)
each; but said capital stock may be increased or decreased from time to time,
according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time determine and at such
price as the Board of Directors may from time to time fix. Unless otherwise
specified in the Articles of Association or required by law, (1) all matters
requiring shareholder action, including amendments to the Articles of
Association, must be approved by shareholders owning a majority voting interest
in the outstanding voting stock, and (2) each shareholder shall be entitled to
one vote per share.
6
<PAGE> 6
Unless otherwise specified in the Articles of Association or required by law,
all shares of voting stock shall be voted together as a class on any matters
requiring shareholder approval. If a proposed amendment would affect two or more
classes or series in the same or a substantially similar way, all the classes or
series so affected must vote together as a single voting group on the proposed
amendment.
Shares of the same class or series may be issued as a dividend on a pro rata
basis and without consideration. Shares of another class or series may be issued
as share dividends in respect of a class or series of stock if approved by a
majority of the votes entitled to be cast by the class or series to be issued
unless there are no outstanding shares of the class or series to be issued.
Unless otherwise provided by the Board of Directors, the record date for
determining shareholders entitled to a share dividend shall be the date the
Board of Directors authorizes the share dividend.
Unless otherwise provided in the Bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close of
business on the day before the first notice is mailed or otherwise sent to the
shareholders, provided that in no event may a record date be more than 70 days
before the meeting.
If a shareholder is entitled to fractional shares pursuant to preemptive rights,
a stock dividend, consolidation or merger, reverse stock split or otherwise, the
Association may: (a) issue fractional shares or; (b) in lieu of the issuance of
fractional shares, issue script or warrants entitling the holder to receive a
full share upon surrendering enough script or warrants to equal a full share;
(c) if there is an established and active market in the Association's stock,
make reasonable arrangements to provide the shareholder with an opportunity to
realize a fair price through sale of the fraction, or purchase of the additional
fraction required for a full share; (d) remit the cash equivalent of the
fraction to the shareholder; or (e) sell full shares representing all the
fractions at public auction or to the highest bidder after having solicited and
received sealed bids from at least three licensed stock brokers, and distribute
the proceeds pro rata to shareholders who otherwise would be entitled to the
fractional shares. The holder of a fractional share is entitled to exercise the
rights for shareholder, including the right to vote, to receive dividends, and
to participate in the assets of the Association upon liquidation, in proportion
to the fractional interest. The holder of script or warrants is not entitled to
any of these rights unless the script or warrants explicitly provide for such
rights. The script or warrants may be subject to such additional conditions as:
(1) that the script or warrants will become void if not exchanged for full
shares before a specified date; and (2) that the shares for which the script or
warrants are exchangeable may be sold at the option of the Association and the
proceeds paid to scriptholders.
7
<PAGE> 7
Honorary or advisory members of the Board of Directors, without voting power or
power of final decision in matters concerning the business of the Association,
may be appointed by resolution of a majority of the full Board of Directors, or
by resolution of shareholders at any annual or special meeting. Honorary or
advisory directors shall not be counted to determine the number of directors of
the Association or the presence of a quorum in connection with any board action,
and shall not be required to own qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It shall
be held at the main office or any other convenient place the Board of Directors
may designate, on the day of each year specified therefor in the Bylaws or, if
that day falls on a legal holiday in the state in which the Association is
located, on the next following banking day. If no election is held on the day
fixed or in the event of a legal holiday on the following banking day, an
election may be held on any subsequent day within 60 days of the day fixed, to
be designated by the Board of Directors or, if the directors fail to fix the
day, by shareholders representing two-thirds of the shares issued and
outstanding. In all cases at least 10 days advance notice of the meeting shall
be given to the shareholders by first class mail.
In all elections of directors, the number of votes each common shareholder may
cast will be determined by multiplying the number of shares such shareholder
owns by the number of directors to be elected. Those votes may be cumulated and
cast for a single candidate or may be distributed among two or more candidates
in the manner selected by the shareholder. On all other questions, each common
shareholder shall be entitled to one vote for each share of stock held by such
shareholder. If the issuance of preferred stock with voting rights has been
authorized by a vote of shareholders owning a majority of the common stock of
the association, preferred shareholders will have cumulative voting rights and
will be included within the same class as common shareholders, for purposes of
elections of directors.
A director may resign at any time by delivering written notice to the Board of
Directors, its chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of the
affirmative requirements for qualification, or for cause, provided, however,
that a director may not be removed if the number of votes sufficient to elect
him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of this Association shall be
eighty thousand shares of common stock of the par value of ten dollars ($10.00)
each; but said capital stock may be increased or decreased from time to time,
according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time determine and at such
6
<PAGE> 8
price as the Board of Directors may from time to time fix. Unless otherwise
specified in the Articles of Association or required by law, (1) all matters
requiring shareholder action, including amendments to the Articles of
Association, must be approved by shareholders owning a majority voting interest
in the outstanding voting stock, and (2) each shareholder shall be entitled to
one vote per share.
Unless otherwise specified in the Articles of Association or required by law,
all shares of voting stock shall be voted together as a class on any matters
requiring shareholder approval. If a proposed amendment would affect two or more
classes or series in the same or a substantially similar way, all the classes or
series so affected must vote together as a single voting group on the proposed
amendment.
Shares of the same class or series may be issued as a dividend on a pro rata
basis and without consideration. Shares of another class or series may be issued
as share dividends in respect of a class or series of stock if approved by a
majority of the votes entitled to be cast by the class or series to be issued
unless there are no outstanding shares of the class or series to be issued.
Unless otherwise provided by the Board of Directors, the record date for
determining shareholders entitled to a share dividend shall be the date the
Board of Directors authorizes the share dividend.
Unless otherwise provided in the Bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close of
business on the day before the first notice is mailed or otherwise sent to the
shareholders, provided that in no event may a record date be more than 70 days
before the meeting.
If a shareholder is entitled to fractional shares pursuant to preemptive rights,
a stock dividend, consolidation or merger, reverse stock split or otherwise, the
Association may: (a) issue fractional shares or; (b) in lieu of the issuance of
fractional shares, issue script or warrants entitling the holder to receive a
full share upon surrendering enough script or warrants to equal a full share;
(c) if there is an established and active market in the Association's stock,
make reasonable arrangements to provide the shareholder with an opportunity to
realize a fair price through sale of the fraction, or purchase of the additional
fraction required for a full share; (d) remit the cash equivalent of the
fraction to the shareholder; or (e) sell full shares representing all the
fractions at public auction or to the highest bidder after having solicited and
received sealed bids from at least three licensed stock brokers, and distribute
the proceeds pro rata to shareholders who otherwise would be entitled to the
fractional shares. The holder of a fractional share is entitled to exercise the
rights for shareholder, including the right to vote, to receive dividends, and
to participate in the assets of the Association upon liquidation, in proportion
to the fractional interest. The holder of script or warrants is not entitled to
any of these rights unless the script or warrants explicitly provide for such
rights. The script or warrants may be subject to such additional conditions as:
(1) that the script or warrants will become void if not exchanged for full
shares before a specified date; and (2) that the shares for which the script or
warrants are exchangeable may be sold at the option of the Association and the
proceeds paid to scriptholders.
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<PAGE> 9
supervisory or regulatory authority; and provided further that there shall be no
indemnification of Directors, officers, or employees against expenses,
penalties, or other payments incurred in an administrative proceeding or action
instituted by an appropriate regulatory agency which proceeding or action
results in a final order assessing civil money penalties or requiring
affirmative action by an individual or individuals in the form of payments to
the Association.
Every person who may be indemnified under the provisions of this Article and who
has been wholly successful on the merits with respect to any Claim shall be
entitled to indemnification as of right. Except as provided in the preceding
sentence, any indemnification under this Article shall be at the sole discretion
of the Board of Directors and shall be made only if the Board of Directors or
the Executive Committee acting by a quorum consisting of Directors who are not
parties to such Claim shall find or if independent legal counsel (who may be the
regular counsel of the Association) selected by the Board of Directors or
Executive Committee whether or not a disinterested quorum exists shall render
their opinion that in view of all of the circumstances then surrounding the
Claim, such indemnification is equitable and in the best interests of the
Association. Among the circumstances to be taken into consideration in arriving
at such a finding or opinion is the existence or non-existence of a contract of
insurance or indemnity under which the Association would be wholly or partially
reimbursed for such indemnification, but the existence or non-existence of such
insurance is not the sole circumstance to be considered nor shall it be wholly
determinative of whether such indemnification shall be made. In addition to such
finding or opinion, no indemnification under this Article shall be made unless
the Board of Directors or the Executive Committee acting by a quorum consisting
of Directors who are not parties to such Claim shall find or if independent
legal counsel (who may be the regular counsel of the Association) selected by
the Board of Directors or Executive Committee whether or not a disinterested
quorum exists shall render their opinion that the Directors, officer or employee
acted in good faith in what he reasonably believed to be the best interests of
the Association or such other corporation and further in the case of any
criminal action or proceeding, that the Director, officer or employee reasonably
believed his conduct to be lawful. Determination of any Claim by judgment
adverse to a Director, officer or employee by settlement with or without Court
approval or conviction upon a plea of guilty or of nolo contendere or its
equivalent shall not create a presumption that a Director, officer or employee
failed to meet the standards of conduct set forth in this Article. Expenses
incurred with respect to any Claim may be advanced by the Association prior to
the final disposition thereof upon receipt of an undertaking satisfactory to the
Association by or on behalf of the recipient to repay such amount unless it is
ultimately determined that he is entitled to indemnification under this Article.
The rights of indemnification provided in this Article shall be in addition to
any rights to which any Director, officer or employee may otherwise be entitled
by contract or as a matter of law. Every person who shall act as a Director,
officer or employee of this Association shall be conclusively presumed to be
doing so in reliance upon the right of indemnification provided for in this
Article.
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<PAGE> 10
SEVENTH. The Board of Directors shall have the power to change the location of
the main office of this Association to any other place within the limits of the
City of Columbus, State of Ohio, without the approval of the shareholders; and
shall have the power to change the location of the main office of this
Association to any other place outside the limits of the City of Columbus, State
of Ohio, but not more than thirty miles beyond such limits, with the affirmative
vote of shareholders owning two-thirds of the stock of the Association, subject
to receipt of a certificate of approval from the Comptroller of the Currency.
The Board of Directors shall have the power to establish or change the location
of any branch or branches of the Association to any other location permitted
under applicable law without the approval of the shareholders, subject to
approval by the Office of the Comptroller of the Currency. The Board of
Directors shall have the power to establish or change the location of any
nonbranch office or facility of the Association without the approval of the
shareholders.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
NINTH. The Board of Directors of this Association, or any shareholders owning,
in the aggregate, not less than 20 percent of the stock of this Association, may
call a special meeting of shareholders at any time. Unless otherwise provided by
the Bylaws or the laws of the United States, or waived by shareholders, a notice
of the time, place, and purpose of every annual and special meeting of the
shareholders shall be given by first-class mail, postage prepaid, mailed at
least 10, and no more than 60, days prior to the date of the meeting to each
shareholder of record at his/her address as shown upon the books of this
Association. Unless otherwise provided by the Bylaws, any action requiring
approval of shareholders must be effected at a duly called annual or special
meeting.
TENTH. The Association shall provide indemnification as set forth below:
Every person who is or was a Director, officer or employee of the Association or
of any other corporation which he served as a Director, officer or employee at
the request of the Association as part of his regularly assigned duties may be
indemnified by the Association in accordance with the provisions of this Article
against all liability (including, without limitation, judgments, fines,
penalties, and settlements) and all reasonable expenses (including, without
limitation, attorneys' fees and investigative expenses) that may be incurred or
paid by him in connection with any claim, action, suit or proceeding, whether
civil, criminal or administrative (all referred to hereafter in this Article as
"Claims") or in connection with any appeal relating thereto in which he may
become involved as a party or otherwise or with which he may be threatened by
reason of his being or having been a Director, officer or employee of the
Association or such other corporation, or by reason of any action taken or
omitted by him in his capacity as such Director, officer or employee, whether or
not he continues to be such at the time such liability or expenses are incurred;
provided that nothing contained in this Article shall be construed to permit
indemnification of any such person who is adjudged guilty of, or liable for,
willful misconduct, gross neglect of duty or criminal acts, unless, at the time
such indemnification is sought, such indemnification in such instance is
permissible under applicable law and regulations, including published rulings
of the Comptroller of the Currency or other appropriate supervisory or
regulatory authority; and provided further that there shall be no
indemnification of Directors, officers, or employees against expenses,
penalties, or other payments incurred in an administrative proceeding or action
instituted by an appropriate regulatory agency which proceeding or action
results in a final order assessing civil money penalties or requiring
affirmative action by an individual or individuals in the form of payments to
the Association.
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<PAGE> 11
Every person who may be indemnified under the provisions of this Article and who
has been wholly successful on the merits with respect to any Claim shall be
entitled to indemnification as of right. Except as provided in the preceding
sentence, any indemnification under this Article shall be at the sole discretion
of the Board of Directors and shall be made only if the Board of Directors or
the Executive Committee acting by a quorum consisting of Directors who are not
parties to such Claim shall find or if independent legal counsel (who may be the
regular counsel of the Association) selected by the Board of Directors or
Executive Committee whether or not a disinterested quorum exists shall render
their opinion that in view of all of the circumstances then surrounding the
Claim, such indemnification is equitable and in the best interests of the
Association. Among the circumstances to be taken into consideration in arriving
at such a finding or opinion is the existence or non-existence of a contract of
insurance or indemnity under which the Association would be wholly or partially
reimbursed for such indemnification, but the existence or non-existence of such
insurance is not the sole circumstance to be considered nor shall it be wholly
determinative of whether such indemnification shall be made. In addition to such
finding or opinion, no indemnification under this Article shall be made unless
the Board of Directors or the Executive Committee acting by a quorum consisting
of Directors who are not parties to such Claim shall find or if independent
legal counsel (who may be the regular counsel of the Association) selected by
the Board of Directors or Executive Committee whether or not a disinterested
quorum exists shall render their opinion that the Directors, officer or employee
acted in good faith in what he reasonably believed to be the best interests of
the Association or such other corporation and further in the case of any
criminal action or proceeding, that the Director, officer or employee reasonably
believed his conduct to be lawful. Determination of any Claim by judgment
adverse to a Director, officer or employee by settlement with or without Court
approval or conviction upon a plea of guilty or of nolo contendere or its
equivalent shall not create a presumption that a Director, officer or employee
failed to meet the standards of conduct set forth in this Article. Expenses
incurred with respect to any Claim may be advanced by the Association prior to
the final disposition thereof upon receipt of an undertaking satisfactory to the
Association by or on behalf of the recipient to repay such amount unless it is
ultimately determined that he is entitled to indemnification under this Article.
The rights of indemnification provided in this Article shall be in addition to
any rights to which any Director, officer or employee may otherwise be entitled
by contract or as a matter of law. Every person who shall act as a Director,
officer or employee of this Association shall be conclusively presumed to be
doing so in reliance upon the right of indemnification provided for in this
Article.
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<PAGE> 12
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE TRUSTEE
TO EXERCISE CORPORATE TRUST POWERS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter No.
16235) was granted, under the hand and seal of the Comptroller, the right to act
in all fiduciary capacities authorized under the provisions of the Act of
Congress approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a, and that the
authority so granted remains in full force and effect on the date of this
Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
24th day of March, 1999.
/s/ John D. Hawke, Jr.
-----------------------------------
Comptroller of the Currency
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<PAGE> 13
EXHIBIT 4
A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE
BANK ONE TRUST COMPANY, N.A.
BY-LAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1.01. ANNUAL MEETING. The regular annual meeting of the shareholders of
the Bank for the election of Directors and for the transaction of such business
as may properly come before the meeting shall be held at its main office, or
other convenient place duly authorized by the Board of Directors, on the same
day upon which any regular or special Board meeting is held from and including
the first Monday of January to, and including, the fourth Monday of February of
each year, or on the next succeeding banking day, if the day fixed falls on a
legal holiday. If from any cause, an election of Directors is not made on the
day fixed for the regular meeting of the shareholders or, in the event of a
legal holiday, on the next succeeding banking day, the Board of Directors shall
order the election to be held on some subsequent day, as soon thereafter as
practicable, according to the provisions of law; and notice thereof shall be
given in the manner herein provided for the annual meeting. Notice of such
annual meeting shall be given by or under the direction of the Secretary, or
such other officer as may be designated by the Chief Executive Officer, by
first-class mail, postage prepaid, to all shareholders of record of the Bank at
their respective addresses as shown upon the books of the Bank mailed not less
than ten days prior to the date fixed for such meeting.
SECTION 1.02. SPECIAL MEETINGS. A special meeting of the shareholders of the
Bank may be called at any time by the Board of Directors or by any three or more
shareholders owning, in the aggregate, not less than ten percent of the stock of
the Bank. Notice of any special meeting of the shareholders called by the Board
of Directors, stating the time, place and purpose of the meeting, shall be given
by or under the direction of the Secretary, or such other officer as is
designated by the Chief Executive Officer, by first-class mail, postage prepaid,
to all shareholders of record of the Bank at their respective addresses as shown
upon the books of the Bank mailed not less than ten days prior to the date fixed
for such meeting. Any special meeting of shareholders shall be conducted and its
proceedings recorded in the manner prescribed in these By-Laws for annual
meetings of shareholders.
<PAGE> 14
SECTION 1.03. SECRETARY OF MEETING OF SHAREHOLDERS. The Board of Directors may
designate a person to be the secretary of the meeting of shareholders. In the
absence of a presiding officer, as designated by these By-Laws, the Board of
Directors may designate a person to act as the presiding officer. In the event
the Board of Directors fails to designate a person to preside at a meeting of
shareholders and a secretary of such meeting, the shareholders present or
represented shall elect a person to preside and a person to serve as secretary
of the meeting. The secretary of the meeting of shareholders shall cause the
returns made by the judges of election and other proceedings to be recorded in
the minute books of the Bank. The presiding officer shall notify the
Directors-elect of their election and to meet forthwith for the organization of
the new Board of Directors. The minutes of the meeting shall be signed by the
presiding officer and the secretary designated for the meeting.
SECTION 1.04. JUDGES OF ELECTION. The Board of Directors may appoint as many as
three shareholders to be judges of the election, who shall hold and conduct the
same, and who shall, after the election has been held, notify, in writing over
their signatures, the secretary of the meeting of shareholders of the result
thereof and the names of the Directors elected; provided, however, that upon
failure for any reason of any judge or judges of election, so appointed by the
Directors, to serve, the presiding officer of the meeting shall appoint other
shareholders or their proxies to fill the vacancies. The judges of election, at
the request of the chairman of the meeting, shall act as tellers of any other
vote by ballot taken at such meeting, and shall notify, in writing over their
signature, the secretary of the Board of Directors of the result thereof.
SECTION 1.05. PROXIES. In all elections of Directors, each shareholder of
record, who is qualified to vote under the provisions of Federal Law, shall have
the right to vote the number of shares of record in such shareholder's name for
as many persons as there are Directors to be elected, or to cumulate such shares
as provided by Federal Law. In deciding all other questions at meetings of
shareholders, each shareholder shall be entitled to one vote on each share of
stock of record in such shareholder's name. Shareholders may vote by proxy duly
authorized in writing. All proxies used at the annual meeting shall be secured
for that meeting only, or any adjournment thereof, and shall be dated, if not
dated by the shareholder, as of the date of the receipt thereof. No officer or
employee of this Bank may act as proxy.
SECTION 1.06. QUORUM. Holders of record of a majority of the shares of the
capital stock of the Bank, eligible to be voted, present either in person or by
proxy, shall constitute a quorum for the transaction of business at any meeting
of shareholders, but shareholders present at any meeting and constituting less
than a quorum may, without further notice, adjourn the meeting from time to time
until a quorum is obtained. A majority of the votes cast shall decide every
question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
DIRECTORS
SECTION 2.01. QUALIFICATIONS. Each Director shall have the qualifications
prescribed by law. No person elected as a Director may exercise any of the
powers of office until such Director has taken the oath of such office.
SECTION 2.02. VACANCIES. Directors of the Bank shall hold office for one year or
until
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<PAGE> 15
their successors are elected and qualified. Any vacancy in the Board shall be
filled by appointment of the remaining Directors, and any Director so appointed
shall hold office until the next election.
SECTION 2.03. ORGANIZATION MEETING. The Directors elected by the shareholders
shall meet for organization of the new Board of Directors at the time and place
fixed by the presiding officer of the annual meeting. If at the time fixed for
such meeting there is no quorum present, the Directors in attendance may adjourn
from time to time until a quorum is obtained. A majority of the number of
Directors elected by the shareholders shall constitute a quorum for the
transaction of business.
SECTION 2.04. REGULAR MEETINGS. The regular meetings of the Board of Directors
shall be held at such date, time and place as the Board may previously
designate, or should the Board fail to so designate, at such date, time and
place as the Chairman of the Board, Chief Executive Officer, or President may
fix. Whenever a quorum is not present, the Directors in attendance shall adjourn
the meeting to a time not later than the date fixed by the By-Laws for the next
succeeding regular meeting of the Board. Members of the Board of Directors may
participate in such meetings through use of conference telephone or similar
communications equipment, so long as all members participating in such meetings
can hear one another.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the Board of Directors shall
be held at the call of the Chairman of the Board, Chief Executive Officer, or
President, or at the request of two or more Directors. Any special meeting may
be held at such place and at such time as may be fixed in the call. Written or
oral notice shall be given to each Director not later than the day next
preceding the day on which the special meeting is to be held, which notice may
be waived in writing. The presence of a Director at any meeting of the Board of
Directors shall be deemed a waiver of notice thereof by such Director. Whenever
a quorum is not present, the Directors in attendance shall adjourn the special
meeting from day to day until a quorum is obtained. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.06. QUORUM. A majority of the Directors shall constitute a quorum at
any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as herein
defined, but at least one-third and not less than two of the authorized number
of Directors are present at a meeting of the Directors, business of the Bank may
be transacted and matters before the Board approved or disapproved by the
unanimous vote of the Directors present.
SECTION 2.07. COMPENSATION. Each member of the Board of Directors shall receive
such fees for attendance at Board and Board committee meetings and such fees for
service as a Director, irrespective of meeting attendance, as from time to time
are fixed by resolution of the Board; provided, however, that payment hereunder
shall not be made to a Director for meetings attended and/or Board service which
are not for the Bank's sole
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<PAGE> 16
SECTION 1.03. SECRETARY OF MEETING OF SHAREHOLDERS. The Board of Directors may
designate a person to be the secretary of the meeting of shareholders. In the
absence of a presiding officer, as designated by these By-Laws, the Board of
Directors may designate a person to act as the presiding officer. In the event
the Board of Directors fails to designate a person to preside at a meeting of
shareholders and a secretary of such meeting, the shareholders present or
represented shall elect a person to preside and a person to serve as secretary
of the meeting. The secretary of the meeting of shareholders shall cause the
returns made by the judges of election and other proceedings to be recorded in
the minute books of the Bank. The presiding officer shall notify the
Directors-elect of their election and to meet forthwith for the organization of
the new Board of Directors. The minutes of the meeting shall be signed by the
presiding officer and the secretary designated for the meeting.
SECTION 1.04. JUDGES OF ELECTION. The Board of Directors may appoint as many as
three shareholders to be judges of the election, who shall hold and conduct the
same, and who shall, after the election has been held, notify, in writing over
their signatures, the secretary of the meeting of shareholders of the result
thereof and the names of the Directors elected; provided, however, that upon
failure for any reason of any judge or judges of election, so appointed by the
Directors, to serve, the presiding officer of the meeting shall appoint other
shareholders or their proxies to fill the vacancies. The judges of election, at
the request of the chairman of the meeting, shall act as tellers of any other
vote by ballot taken at such meeting, and shall notify, in writing over their
signature, the secretary of the Board of Directors of the result thereof.
SECTION 1.05. PROXIES. In all elections of Directors, each shareholder of
record, who is qualified to vote under the provisions of Federal Law, shall have
the right to vote the number of shares of record in such shareholder's name for
as many persons as there are Directors to be elected, or to cumulate such shares
as provided by Federal Law. In deciding all other questions at meetings of
shareholders, each shareholder shall be entitled to one vote on each share of
stock of record in such shareholder's name. Shareholders may vote by proxy duly
authorized in writing. All proxies used at the annual meeting shall be secured
for that meeting only, or any adjournment thereof, and shall be dated, if not
dated by the shareholder, as of the date of the receipt thereof. No officer or
employee of this Bank may act as proxy.
SECTION 1.06. QUORUM. Holders of record of a majority of the shares of the
capital stock of the Bank, eligible to be voted, present either in person or by
proxy, shall constitute a quorum for the transaction of business at any meeting
of shareholders, but shareholders present at any meeting and constituting less
than a quorum may, without further notice, adjourn the meeting from time to time
until a quorum is obtained. A majority of the votes cast shall decide every
question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
DIRECTORS
SECTION 2.01. QUALIFICATIONS. Each Director shall have the qualifications
prescribed by law. No person elected as a Director may exercise any of the
powers of office until such Director has taken the oath of such office.
SECTION 2.02. VACANCIES. Directors of the Bank shall hold office for one year
or until their successors are elected and qualified. Any vacancy in the Board
shall be filled by appointment of the remaining Directors, and any Director so
appointed shall hold office until the next election.
15
<PAGE> 17
SECTION 2.03. ORGANIZATION MEETING. The Directors elected by the shareholders
shall meet for organization of the new Board of Directors at the time and place
fixed by the presiding officer of the annual meeting. If at the time fixed for
such meeting there is no quorum present, the Directors in attendance may adjourn
from time to time until a quorum is obtained. A majority of the number of
Directors elected by the shareholders shall constitute a quorum for the
transaction of business.
SECTION 2.04. REGULAR MEETINGS. The regular meetings of the Board of Directors
shall be held at such date, time and place as the Board may previously
designate, or should the Board fail to so designate, at such date, time and
place as the Chairman of the Board, Chief Executive Officer, or President may
fix. Whenever a quorum is not present, the Directors in attendance shall adjourn
the meeting to a time not later than the date fixed by the By-Laws for the next
succeeding regular meeting of the Board. Members of the Board of Directors may
participate in such meetings through use of conference telephone or similar
communications equipment, so long as all members participating in such meetings
can hear one another.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the Board of Directors shall
be held at the call of the Chairman of the Board, Chief Executive Officer, or
President, or at the request of two or more Directors. Any special meeting may
be held at such place and at such time as may be fixed in the call. Written or
oral notice shall be given to each Director not later than the day next
preceding the day on which the special meeting is to be held, which notice may
be waived in writing. The presence of a Director at any meeting of the Board of
Directors shall be deemed a waiver of notice thereof by such Director. Whenever
a quorum is not present, the Directors in attendance shall adjourn the special
meeting from day to day until a quorum is obtained. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.06. QUORUM. A majority of the Directors shall constitute a quorum at
any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as herein
defined, but at least one-third and not less than two of the authorized number
of Directors are present at a meeting of the Directors, business of the Bank may
be transacted and matters before the Board approved or disapproved by the
unanimous vote of the Directors present.
SECTION 2.07. COMPENSATION. Each member of the Board of Directors shall receive
such fees for attendance at Board and Board committee meetings and such fees for
service as a Director, irrespective of meeting attendance, as from time to time
are fixed by resolution of the Board; provided, however, that payment hereunder
shall not be made to a Director for meetings attended and/or Board service which
are not for the Bank's sole benefit and which are concurrent and duplicative
with meetings attended or Board service for an affiliate of the Bank for which
the Director receives payment; and provided further that fees hereunder shall
not be paid in the case of any Director in the regular employment of the Bank
or of one of its affiliates. Each member of the Board of Directors, whether or
not such Director is in the regular employment of the Bank or of one of its
affiliates, shall be reimbursed for travel expenses incident to attendance at
Board and Board committee meetings.
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<PAGE> 18
SECTION 2.08. EXECUTIVE COMMITTEE. There may be a standing committee of the
Board of Directors known as the Executive Committee which shall possess and
exercise, when the Board is not in session, all the powers of the Board that may
lawfully be delegated. The Executive Committee shall consist of at least three
Board members, one of whom shall be the Chairman of the Board, Chief Executive
Officer or the President. The other members of the Executive Committee shall be
appointed by the Chairman of the Board, the Chief Executive Officer, or the
President, with the approval of the Board, and who shall continue as members of
the Executive Committee until their successors are appointed, provided, however,
that any member of the Executive Committee may be removed by the Board upon a
majority vote thereof at any regular or special meeting of the Board. The
Chairman, Chief Executive Officer, or President shall fill any vacancy in the
Executive Committee by the appointment of another Director, subject to the
approval of the Board of Directors. The Executive Committee shall meet at the
call of the Chairman, Chief Executive Officer, or President or any two members
thereof at such time or times and place as may be designated. In the event of
the absence of any member or members of the Executive Committee, the presiding
member may appoint a member or members of the Board to fill the place or places
of such absent member or members to serve during such absence. Two members of
the Executive Committee shall constitute a quorum. When neither the Chairman of
the Board, the Chief Executive Officer, nor President are present, the Executive
Committee shall appoint a presiding officer. The Executive Committee shall
report its proceedings and the action taken by it to the Board of Directors.
SECTION 2.09. OTHER COMMITTEES. The Board of Directors may appoint such special
committees from time to time as are in its judgment necessary in the interest of
the Bank.
ARTICLE III
OFFICERS, MANAGEMENT STAFF AND EMPLOYEES
SECTION 3.01. OFFICERS AND MANAGEMENT STAFF.
(a) The executive officers of the Bank shall include a Chairman of the Board,
Chief Executive Officer, President, Chief Financial Officer, Secretary, Security
Officer, and may include one or more Senior Managing Directors or Managing
Directors. The Chairman of the Board, Chief Executive Officer, President, any
Senior Managing Director, any Managing Director, Chief Financial Officer,
Secretary, and Security Officer shall be elected by the Board. The Chairman of
the Board, Chief Executive Officer, and the President shall be elected by the
Board from their own number. Such officers as the Board shall elect from their
own number shall hold office from the date of their election as officers until
the organization meeting of the Board of Directors following the next annual
meeting of shareholders, provided, however, that such officers may be relieved
of their duties at any time by action of the Board of Directors, in which event
all the powers incident to their office shall immediately terminate. The
Chairman of the Board, Chief Executive Officer, or the President shall preside
at all meetings of shareholders and meetings of the Board of Directors.
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<PAGE> 19
(b) The management staff of the Bank shall include officers elected by the
Board, officers appointed by the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and such other persons in the employment of the Bank
who, pursuant to authorization by a duly authorized officer of the Bank, perform
management functions and have management responsibilities. Any two or more
offices may be held by the same person except that no person shall hold the
office of Chairman of the Board, Chief Executive Officer and/or President and at
the same time also hold the office of Secretary.
(c) Except as provided in the case of the elected officers who are members of
the Board, all officers and employees, whether elected or appointed, shall hold
office at the pleasure of the Board. Except as otherwise limited by law or these
By-Laws, the Board assigns to the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and/or each of their respective designees the authority
to control all personnel, including elected and appointed officers and employees
of the Bank, to employ or direct the employment of such officers and employees
as he or she may deem necessary, including the fixing of salaries and the
dismissal of such officers and employees at pleasure, and to define and
prescribe the duties and responsibilities of all officers and employees of the
Bank, subject to such further limitations and directions as he or she may from
time to time deem appropriate.
(d) The Chairman of the Board, the Chief Executive Officer, the President, any
Senior Managing Director, any Managing Director, the Chief Financial Officer,
and any other officer of the Bank, to the extent that such officer is authorized
in writing by the Chairman of the Board, the Chief Executive Officer, the
President, any Senior Managing Director, any Managing Director, or the Chief
Financial Officer may appoint persons other than officers who are in employment
of the Bank to serve in management positions and in connection therewith, the
appointing officer may assign such title, salary, responsibilities and functions
as are deemed appropriate, provided, however, that nothing contained herein
shall be construed as placing any limitation on the authority of the Chairman of
the Board, the Chief Executive Officer, the President, any Senior Managing
Director, any Managing Director, or the Chief Financial Officer as provided in
this and other sections of these By-Laws.
(e) The Senior Managing Directors and the Managing Directors of the Bank shall
have general and active authority over the management of the business of the
Bank, shall see that all orders and resolutions of the Board of Directors are
carried into effect, and shall do or cause to be done all things necessary or
proper to carry on the business of the Bank in accordance with provisions of
applicable law and regulations. Each Senior Managing Director and Managing
Director shall perform all duties incident to his or her office and such other
and further duties, as may from time to time be required by the Chief Executive
Officer, the President, the Board of Directors, or the shareholders. The
specification of authority in these By-Laws wherever and to whomever granted
shall not be construed to limit in any manner the general powers of delegation
granted to a Senior Managing Director or a Managing Director in conducting the
business of the Bank. In the absence of a Senior Managing Director or a Managing
Director, such officer as is designated by the Senior Managing Director or the
Managing Director shall be vested with all the powers and perform all the duties
of the Senior Managing Director or the Managing Director as defined by these
By-Laws.
18
<PAGE> 20
(f) Each Managing Director who is assigned oversight of one or more trust
service offices shall appoint a management committee known as the Investment
Management and Trust Committee consisting of the Managing Director of the trust
service offices and at least three other members who shall be capable and
experienced officers of the Bank appointed from time to time by the Managing
Director and who shall continue as members of the Investment Management and
Trust Committee until their successors are appointed, provided, however, that
any member of the Investment Management and Trust Committee may be removed by
the Managing Director as provided in this and other sections of these By-Laws.
The Managing Director shall fill any vacancy in the Investment Management and
Trust Committee by the appointment of another capable and experienced officer of
the Bank. Each Investment Management and Trust Committee shall meet at such
date, time and place as the Managing Director shall fix. In the event of the
absence of any member or members of the Investment Management and Trust
Committee, the Managing Director may, in his or her discretion, appoint another
officer of the Bank to fill the place or places of such absent member or members
to serve during such absence. A majority of each Investment Management and Trust
Committee shall constitute a quorum. Each Investment Management and Trust
Committee shall carry out the policies of the Bank, as adopted by the Board of
Directors, which shall be formulated and executed in accordance with State and
Federal Law, Regulations of the Comptroller of the Currency, and sound fiduciary
principles. In carrying out the policies of the Bank, each Investment Management
and Trust Committee is hereby authorized to establish management teams whose
duties and responsibilities shall be specifically set forth in the policies of
the Bank. Each such management team shall report such proceedings and the
actions taken thereby to the Investment Management and Trust Committee. Each
Managing Director shall then report such proceedings and the actions taken
thereby to the Board of Directors.
SECTION 3.02. POWERS AND DUTIES OF MANAGEMENT STAFF. Pursuant to the fiduciary
powers granted to this Bank under the provisions of Federal Law and Regulations
of the Comptroller of the Currency, the Chairman of the Board, the Chief
Executive Officer, the President, the Senior Managing Directors, the Managing
Directors, the Chief Financial Officer, and those officers so designated and
authorized by the Chairman of the Board, the Chief Executive Officer, the
President, the Senior Managing Directors, the Managing Directors, or the Chief
Financial Officer are authorized for and on behalf of the Bank, and to the
extent permitted by law, to make loans and discounts; to purchase or acquire
drafts, notes, stocks, bonds, and other securities for investment of funds held
by the Bank; to execute and purchase acceptances; to appoint, empower and direct
all necessary agents and attorneys; to sign and give any notice required to be
given; to demand payment and/or to declare due for any default any debt or
obligation due or payable to the Bank upon demand or authorized to be declared
due; to foreclose any mortgages; to exercise any option, privilege or election
to forfeit, terminate, extend or renew any lease; to authorize and direct any
proceedings for the collection of any money or for the enforcement of any right
or obligation; to adjust, settle and compromise all claims of every kind and
description in favor of or against the Bank, and to give receipts, releases and
discharges therefor; to borrow money and in connection therewith to make,
execute and deliver notes, bonds or other evidences of indebtedness; to pledge
or hypothecate any securities or any stocks, bonds, notes or any property real
or personal held or owned by the Bank, or to rediscount any notes or other
obligations held or owned by the Bank, whenever in his or her judgment it is
reasonably necessary for the operation of the Bank; and in furtherance of and in
addition to the powers hereinabove set forth to do all such acts and to take all
such proceedings as in his or her judgment are necessary and incidental to the
operation of the Bank.
SECTION 3.03. SECRETARY. The Secretary or such other officers as may be
designated by the Chief Executive Officer shall have supervision and control
19
<PAGE> 21
of the records of the Bank and, subject to the direction of the Chief Executive
Officer, shall undertake other duties and functions usually performed by a
corporate secretary. Other officers may be designated by the Secretary as
Assistant Secretary to perform the duties of the Secretary.
SECTION 3.04. EXECUTION OF DOCUMENTS. Any member of the Bank's management staff
or any employee of the Bank designated as an officer on the Bank's payroll
system is hereby authorized for and on behalf of the Bank to sell, assign,
lease, mortgage, transfer, deliver and convey any real or personal property,
including shares of stock, bonds, notes, certificates of indebtedness (including
the assignment and redemption of registered United States obligations) and all
other forms of intangible property now or hereafter owned by or standing in the
name of the Bank, or its nominee, or held by the Bank as collateral security, or
standing in the name of the Bank, or its nominee, in any fiduciary capacity or
in the name of any principal for whom this Bank may now or hereafter be acting
under a power of attorney or as agent, and to execute and deliver such partial
releases from any discharges or assignments of mortgages and assignments or
surrender of insurance policies, deeds, contracts, assignments or other papers
or documents as may be appropriate in the circumstances now or hereafter held by
the Bank in its own name, in a fiduciary capacity, or owned by any principal for
whom this Bank may now or hereafter be acting under a power of attorney or as
agent; provided, however, that, when necessary, the signature of any such person
shall be attested or witnessed in each case by another officer of the Bank. Any
member of the Bank's management staff or any employee of the Bank designated as
an officer on the Bank's payroll system is hereby authorized for and on behalf
of the Bank to execute any indemnity and fidelity bonds, trust agreements,
proxies or other papers or documents of like or different character necessary,
desirable or incidental to the appointment of the Bank in any fiduciary
capacity, the conduct of its business in any fiduciary capacity, or the conduct
of its other banking business; to sign and issue checks, drafts, orders for the
payment of money and certificates of deposit; to sign and endorse bills of
exchange, to sign and countersign foreign and domestic letters of credit, to
receive and receipt for payments of principal, interest, dividends, rents, fees
and payments of every kind and description paid to the Bank, to sign receipts
for money or other property acquired by or entrusted to the Bank, to guarantee
the genuineness of signatures on assignments of stocks, bonds or other
securities, to sign certifications of checks, to endorse and deliver checks,
drafts, warrants, bills, notes, certificates of deposit and acceptances in all
business transactions of the Bank; also to foreclose any mortgage, to execute
and deliver receipts for any money or property; also to sign stock certificates
for and on behalf of this Bank as transfer agent or registrar, and to
authenticate bonds, debentures, land or lease trust certificates or other forms
of security issued pursuant to any indenture under which this Bank now or
hereafter is acting as trustee or in any other fiduciary capacity; to execute
and deliver various forms of documents or agreements necessary to effectuate
certain investment strategies for various fiduciary or custody customers of the
Bank, including, without limitation, exchange funds, options, both listed and
over-the-counter, commodities trading, futures trading, hedge funds, limited
partnerships, venture capital funds, swap or collar transactions and other
similar investment vehicles for which the Bank now or in the future may deem
appropriate for investment of fiduciary customers or in which non-fiduciary
customers may direct investment by the Bank.
20
<PAGE> 22
As amended April 24, 1991 Section 3.01 (Officers and Management Staff)
Section 3.02 (Chief Executive Officer)
Section 3.03 (Powers and Duties of Officers
and Management Staff)
Section 3.05 (Execution of Documents)
As amended January 27, 1995 Section 2.04 (Regular Meetings)
Section 2.05 (Special Meetings)
Section 3.01(f) (Officers and Management
Staff)
Section 3.03(e) (Powers and Duties of
Officers and Management Staff)
Section 5.01 (Seal)
Amended and restated in its entirety effective May 1, 1996
As amended August 1, 1996 Section 2.09 (Trust Examining Committee)
Section 2.10 (Other Committees)
As amended October 16, 1997 Section 3.01 (Officers and Management Staff)
Section 3.02 (Powers and Duties of Officers
and Management Staff)
Section 3.04 (Execution of Documents)
As amended January 1, 1998 Section 1.01 (Annual Meeting)
23
<PAGE> 23
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
September 13, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an amended and restated trust agreement
between ONB Capital Trust III and Bank One Trust Company, NA, as Trustee, the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
BANK ONE TRUST COMPANY, NA
BY: /s/ Sandra L. Caruba
------------------------------------
SANDRA L. CARUBA
VICE PRESIDENT
24
<PAGE> 1
EXHIBIT 26.4
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
-------
--------------------
BANK ONE TRUST COMPANY, NA
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 31-0838515
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE TRUST COMPANY, NA
100 EAST BROAD STREET
COLUMBUS, OHIO 43271-0181
ATTN: LINDA J. PATTERSON, SENIOR MANAGING DIRECTOR, (614) 248-5193
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
--------------------
ONB CAPITAL TRUST III
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE APPLIED FOR
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
420 MAIN STREET
EVANSVILLE, INDIANA 47708
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
CAPITAL SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of
Governors of the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS
STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee now
in effect.
2. A copy of the certificates of authority of the trustee to
commence business.
3. A copy of the authorization of the trustee to exercise
corporate trust powers.
4. A copy of the existing by-laws of the trustee.
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
2
<PAGE> 3
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended,
the trustee, Bank One Trust Company, NA, a national banking association
organized and existing under the laws of the United States of America, has
duly caused this Statement of Eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Chicago and State
of Illinois, on the 13th day of September, 1999.
BANK ONE TRUST COMPANY, NA,
TRUSTEE
BY /s/ Sandra L. Caruba
-------------------------------------------
SANDRA L. CARUBA
VICE PRESIDENT
<PAGE> 4
EXHIBIT 1
A COPY OF THE ARTICLES OF ASSOCIATION OF THE
TRUSTEE NOW IN EFFECT
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
BANK ONE TRUST COMPANY, NA
FIRST. The title of this Association shall be BANK ONE TRUST COMPANY, NA.
SECOND. The main office of the Association shall be in the City of Columbus,
County of Franklin, State of Ohio.
The business of the Association will be limited to the fiduciary powers and the
support of activities incidental to the exercise of those powers. The
Association will not expand or alter its business beyond that stated in this
article without the prior approval of the Comptroller of the Currency.
THIRD. The Board of Directors of this Association shall consist of not less than
five nor more than twenty-five persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full Board of
Directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director shall own common or preferred stock of
the Association, or of a holding company owning the Association, with an
aggregate par, fair market or equity value of not less than $1,000, as of either
(i) the date of purchase, (ii) the date the person became a director, or (iii)
the date of that person's most recent election to the Board of Directors,
whichever is more recent. Any combination of common or preferred stock of the
Association or holding company may be used.
Any vacancy in the Board of Directors may be filled by action of a majority of
the remaining directors between meetings of shareholders. The Board of Directors
may not increase the number of directors between meetings of shareholders to a
number which: (1) exceeds by more than two the number of directors last elected
by shareholders where the number was 15 or less; or (2) exceeds by more than
four the number of directors last elected by shareholders where the number was
16 or more, but in no event shall the number of directors exceed 25.
Terms of directors, including directors selected to fill vacancies, shall expire
at the next regular meeting of shareholders at which directors are elected,
unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
<PAGE> 5
Honorary or advisory members of the Board of Directors, without voting power or
power of final decision in matters concerning the business of the Association,
may be appointed by resolution of a majority of the full Board of Directors, or
by resolution of shareholders at any annual or special meeting. Honorary or
advisory directors shall not be counted to determine the number of directors of
the Association or the presence of a quorum in connection with any board action,
and shall not be required to own qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It shall
be held at the main office or any other convenient place the Board of Directors
may designate, on the day of each year specified therefor in the Bylaws or, if
that day falls on a legal holiday in the state in which the Association is
located, on the next following banking day. If no election is held on the day
fixed or in the event of a legal holiday on the following banking day, an
election may be held on any subsequent day within 60 days of the day fixed, to
be designated by the Board of Directors or, if the directors fail to fix the
day, by shareholders representing two-thirds of the shares issued and
outstanding. In all cases at least 10 days advance notice of the meeting shall
be given to the shareholders by first class mail.
In all elections of directors, the number of votes each common shareholder may
cast will be determined by multiplying the number of shares such shareholder
owns by the number of directors to be elected. Those votes may be cumulated and
cast for a single candidate or may be distributed among two or more candidates
in the manner selected by the shareholder. On all other questions, each common
shareholder shall be entitled to one vote for each share of stock held by such
shareholder. If the issuance of preferred stock with voting rights has been
authorized by a vote of shareholders owning a majority of the common stock of
the association, preferred shareholders will have cumulative voting rights and
will be included within the same class as common shareholders, for purposes of
elections of directors.
A director may resign at any time by delivering written notice to the Board of
Directors, its chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of the
affirmative requirements for qualification, or for cause, provided, however,
that a director may not be removed if the number of votes sufficient to elect
him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of this Association shall be
eighty thousand shares of common stock of the par value of ten dollars ($10.00)
each; but said capital stock may be increased or decreased from time to time,
according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time determine and at such
<PAGE> 6
price as the Board of Directors may from time to time fix. Unless otherwise
specified in the Articles of Association or required by law, (1) all matters
requiring shareholder action, including amendments to the Articles of
Association, must be approved by shareholders owning a majority voting interest
in the outstanding voting stock, and (2) each shareholder shall be entitled to
one vote per share.
Unless otherwise specified in the Articles of Association or required by law,
all shares of voting stock shall be voted together as a class on any matters
requiring shareholder approval. If a proposed amendment would affect two or more
classes or series in the same or a substantially similar way, all the classes or
series so affected must vote together as a single voting group on the proposed
amendment.
Shares of the same class or series may be issued as a dividend on a pro rata
basis and without consideration. Shares of another class or series may be issued
as share dividends in respect of a class or series of stock if approved by a
majority of the votes entitled to be cast by the class or series to be issued
unless there are no outstanding shares of the class or series to be issued.
Unless otherwise provided by the Board of Directors, the record date for
determining shareholders entitled to a share dividend shall be the date the
Board of Directors authorizes the share dividend.
Unless otherwise provided in the Bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close of
business on the day before the first notice is mailed or otherwise sent to the
shareholders, provided that in no event may a record date be more than 70 days
before the meeting.
If a shareholder is entitled to fractional shares pursuant to preemptive rights,
a stock dividend, consolidation or merger, reverse stock split or otherwise, the
Association may: (a) issue fractional shares or; (b) in lieu of the issuance of
fractional shares, issue script or warrants entitling the holder to receive a
full share upon surrendering enough script or warrants to equal a full share;
(c) if there is an established and active market in the Association's stock,
make reasonable arrangements to provide the shareholder with an opportunity to
realize a fair price through sale of the fraction, or purchase of the additional
fraction required for a full share; (d) remit the cash equivalent of the
fraction to the shareholder; or (e) sell full shares representing all the
fractions at public auction or to the highest bidder after having solicited and
received sealed bids from at least three licensed stock brokers, and distribute
the proceeds pro rata to shareholders who otherwise would be entitled to the
fractional shares. The holder of a fractional share is entitled to exercise the
rights for shareholder, including the right to vote, to receive dividends, and
to participate in the assets of the Association upon liquidation, in proportion
to the fractional interest. The holder of script or warrants is not entitled to
any of these rights unless the script or warrants explicitly provide for such
rights. The script or warrants may be subject to such additional conditions as:
(1) that the script or warrants will become void if not exchanged for full
shares before a specified date; and (2) that the shares for which the script or
warrants are exchangeable may be sold at the option of the Association and the
proceeds paid to scriptholders.
<PAGE> 7
The Association, at any time and from time to time, may authorize and issue debt
obligations, whether or not subordinated, without the approval of the
shareholders. Obligations classified as debt, whether or not subordinated, which
may be issued by the Association without the approval of shareholders, do not
carry voting rights on any issue, including an increase or decrease in the
aggregate number of the securities, or the exchange or reclassification of all
or part of securities into securities of another class or series.
SIXTH. The Board of Directors shall appoint one of its members president of this
Association, and one of its members chairperson of the board and shall have the
power to appoint one or more vice presidents, a secretary who shall keep minutes
of the directors' and shareholders' meetings and be responsible for
authenticating the records of the Association, and such other officers and
employees as may be required to transact the business of this Association. A
duly appointed officer may appoint one or more officers or assistant officers if
authorized by the Board of Directors in accordance with the Bylaws.
The Board of Directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of the
Association.
(2) Delegate the performance of its duties, but not the responsibility for
its duties, to the officers, employees, and agents of the Association.
(3) Fix the compensation and enter into employment contracts with its
officers and employees upon reasonable terms and conditions consistent
with applicable law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and to fix the penalty
thereof.
(6) Ratify written policies authorized by the Association's management or
committees of the board.
(7) Regulate the manner in which any increase or decrease of the capital of
the Association shall be made, provided that nothing herein shall
restrict the power of shareholders to increase or decrease the capital
of the association in accordance with law, and nothing shall raise or
lower from two-thirds the percentage for shareholder approval to
increase or reduce the capital.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial Bylaws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of
the Association.
(10) Amend or repeal Bylaws, except to the extent that the Articles of
Association reserve this power in whole or in part to shareholders.
(11) Make contracts.
(12) Generally perform all acts that are legal for a Board of Directors to
perform.
<PAGE> 8
SEVENTH. The Board of Directors shall have the power to change the location of
the main office of this Association to any other place within the limits of the
City of Columbus, State of Ohio, without the approval of the shareholders; and
shall have the power to change the location of the main office of this
Association to any other place outside the limits of the City of Columbus, State
of Ohio, but not more than thirty miles beyond such limits, with the affirmative
vote of shareholders owning two-thirds of the stock of the Association, subject
to receipt of a certificate of approval from the Comptroller of the Currency.
The Board of Directors shall have the power to establish or change the location
of any branch or branches of the Association to any other location permitted
under applicable law without the approval of the shareholders, subject to
approval by the Office of the Comptroller of the Currency. The Board of
Directors shall have the power to establish or change the location of any
nonbranch office or facility of the Association without the approval of the
shareholders.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
NINTH. The Board of Directors of this Association, or any shareholders owning,
in the aggregate, not less than 20 percent of the stock of this Association, may
call a special meeting of shareholders at any time. Unless otherwise provided by
the Bylaws or the laws of the United States, or waived by shareholders, a notice
of the time, place, and purpose of every annual and special meeting of the
shareholders shall be given by first-class mail, postage prepaid, mailed at
least 10, and no more than 60, days prior to the date of the meeting to each
shareholder of record at his/her address as shown upon the books of this
Association. Unless otherwise provided by the Bylaws, any action requiring
approval of shareholders must be effected at a duly called annual or special
meeting.
TENTH. The Association shall provide indemnification as set forth below:
Every person who is or was a Director, officer or employee of the Association or
of any other corporation which he served as a Director, officer or employee at
the request of the Association as part of his regularly assigned duties may be
indemnified by the Association in accordance with the provisions of this Article
against all liability (including, without limitation, judgments, fines,
penalties, and settlements) and all reasonable expenses (including, without
limitation, attorneys' fees and investigative expenses) that may be incurred or
paid by him in connection with any claim, action, suit or proceeding, whether
civil, criminal or administrative (all referred to hereafter in this Article as
"Claims") or in connection with any appeal relating thereto in which he may
become involved as a party or otherwise or with which he may be threatened by
reason of his being or having been a Director, officer or employee of the
Association or such other corporation, or by reason of any action taken or
omitted by him in his capacity as such Director, officer or employee, whether or
not he continues to be such at the time such liability or expenses are incurred;
provided that nothing contained in this Article shall be construed to permit
indemnification of any such person who is adjudged guilty of, or liable for,
willful misconduct, gross neglect of duty or criminal acts, unless, at the time
such indemnification is sought, such indemnification in such instance is
permissible under applicable law and regulations, including published rulings of
the Comptroller of the Currency or other appropriate supervisory or regulatory
<PAGE> 9
authority; and provided further that there shall be no indemnification of
Directors, officers, or employees against expenses, penalties, or other
payments incurred in an administrative proceeding or action instituted by an
appropriate regulatory agency which proceeding or action results in a final
order assessing civil money penalties or requiring affirmative action by an
individual or individuals in the form of payments to the Association.
Every person who may be indemnified under the provisions of this Article and who
has been wholly successful on the merits with respect to any Claim shall be
entitled to indemnification as of right. Except as provided in the preceding
sentence, any indemnification under this Article shall be at the sole discretion
of the Board of Directors and shall be made only if the Board of Directors or
the Executive Committee acting by a quorum consisting of Directors who are not
parties to such Claim shall find or if independent legal counsel (who may be the
regular counsel of the Association) selected by the Board of Directors or
Executive Committee whether or not a disinterested quorum exists shall render
their opinion that in view of all of the circumstances then surrounding the
Claim, such indemnification is equitable and in the best interests of the
Association. Among the circumstances to be taken into consideration in arriving
at such a finding or opinion is the existence or non-existence of a contract of
insurance or indemnity under which the Association would be wholly or partially
reimbursed for such indemnification, but the existence or non-existence of such
insurance is not the sole circumstance to be considered nor shall it be wholly
determinative of whether such indemnification shall be made. In addition to such
finding or opinion, no indemnification under this Article shall be made unless
the Board of Directors or the Executive Committee acting by a quorum consisting
of Directors who are not parties to such Claim shall find or if independent
legal counsel (who may be the regular counsel of the Association) selected by
the Board of Directors or Executive Committee whether or not a disinterested
quorum exists shall render their opinion that the Directors, officer or employee
acted in good faith in what he reasonably believed to be the best interests of
the Association or such other corporation and further in the case of any
criminal action or proceeding, that the Director, officer or employee reasonably
believed his conduct to be lawful. Determination of any Claim by judgment
adverse to a Director, officer or employee by settlement with or without Court
approval or conviction upon a plea of guilty or of nolo contendere or its
equivalent shall not create a presumption that a Director, officer or employee
failed to meet the standards of conduct set forth in this Article. Expenses
incurred with respect to any Claim may be advanced by the Association prior to
the final disposition thereof upon receipt of an undertaking satisfactory to the
Association by or on behalf of the recipient to repay such amount unless it is
ultimately determined that he is entitled to indemnification under this Article.
The rights of indemnification provided in this Article shall be in addition to
any rights to which any Director, officer or employee may otherwise be entitled
by contract or as a matter of law. Every person who shall act as a Director,
officer or employee of this Association shall be conclusively presumed to be
doing so in reliance upon the right of indemnification provided for in this
Article.
<PAGE> 10
ELEVENTH. These Articles of Association may be amended at any regular or special
meeting of the shareholders by the affirmative vote of the holders of a majority
of the stock of this Association, unless the vote of the holders of a greater
amount of stock is required by law, and in that case by the vote of the holders
of such greater amount. The Association's Board of Directors may propose one or
more amendments to the Articles of Association for submission to the
shareholders.
<PAGE> 11
EXHIBIT 2
A COPY OF THE CERTIFICATE OF AUTHORITY OF THE
TRUSTEE TO COMMENCE BUSINESS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter No.
16235) is a National Banking Association formed under the laws of the United
States and is authorized thereunder to transact the business of banking on the
date of this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
24th day of March, 1999.
/s/ John D. Hawke, Jr.
----------------------
Comptroller of the Currency
<PAGE> 12
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE TRUSTEE
TO EXERCISE CORPORATE TRUST POWERS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter No.
16235) was granted, under the hand and seal of the Comptroller, the right to act
in all fiduciary capacities authorized under the provisions of the Act of
Congress approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a, and that the
authority so granted remains in full force and effect on the date of this
Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
24th day of March, 1999.
/s/ John D. Hawke, Jr.
----------------------
Comptroller of the Currency
<PAGE> 13
EXHIBIT 4
A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE
BANK ONE TRUST COMPANY, N.A.
BY-LAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1.01. ANNUAL MEETING. The regular annual meeting of the shareholders of
the Bank for the election of Directors and for the transaction of such business
as may properly come before the meeting shall be held at its main office, or
other convenient place duly authorized by the Board of Directors, on the same
day upon which any regular or special Board meeting is held from and including
the first Monday of January to, and including, the fourth Monday of February of
each year, or on the next succeeding banking day, if the day fixed falls on a
legal holiday. If from any cause, an election of Directors is not made on the
day fixed for the regular meeting of the shareholders or, in the event of a
legal holiday, on the next succeeding banking day, the Board of Directors shall
order the election to be held on some subsequent day, as soon thereafter as
practicable, according to the provisions of law; and notice thereof shall be
given in the manner herein provided for the annual meeting. Notice of such
annual meeting shall be given by or under the direction of the Secretary, or
such other officer as may be designated by the Chief Executive Officer, by
first-class mail, postage prepaid, to all shareholders of record of the Bank at
their respective addresses as shown upon the books of the Bank mailed not less
than ten days prior to the date fixed for such meeting.
SECTION 1.02. SPECIAL MEETINGS. A special meeting of the shareholders of the
Bank may be called at any time by the Board of Directors or by any three or more
shareholders owning, in the aggregate, not less than ten percent of the stock of
the Bank. Notice of any special meeting of the shareholders called by the Board
of Directors, stating the time, place and purpose of the meeting, shall be given
by or under the direction of the Secretary, or such other officer as is
designated by the Chief Executive Officer, by first-class mail, postage prepaid,
to all shareholders of record of the Bank at their respective addresses as shown
upon the books of the Bank mailed not less than ten days prior to the date fixed
for such meeting. Any special meeting of shareholders shall be conducted and its
proceedings recorded in the manner prescribed in these By-Laws for annual
meetings of shareholders.
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SECTION 1.03. SECRETARY OF MEETING OF SHAREHOLDERS. The Board of Directors may
designate a person to be the secretary of the meeting of shareholders. In the
absence of a presiding officer, as designated by these By-Laws, the Board of
Directors may designate a person to act as the presiding officer. In the event
the Board of Directors fails to designate a person to preside at a meeting of
shareholders and a secretary of such meeting, the shareholders present or
represented shall elect a person to preside and a person to serve as secretary
of the meeting. The secretary of the meeting of shareholders shall cause the
returns made by the judges of election and other proceedings to be recorded in
the minute books of the Bank. The presiding officer shall notify the
Directors-elect of their election and to meet forthwith for the organization of
the new Board of Directors. The minutes of the meeting shall be signed by the
presiding officer and the secretary designated for the meeting.
SECTION 1.04. JUDGES OF ELECTION. The Board of Directors may appoint as many as
three shareholders to be judges of the election, who shall hold and conduct the
same, and who shall, after the election has been held, notify, in writing over
their signatures, the secretary of the meeting of shareholders of the result
thereof and the names of the Directors elected; provided, however, that upon
failure for any reason of any judge or judges of election, so appointed by the
Directors, to serve, the presiding officer of the meeting shall appoint other
shareholders or their proxies to fill the vacancies. The judges of election, at
the request of the chairman of the meeting, shall act as tellers of any other
vote by ballot taken at such meeting, and shall notify, in writing over their
signature, the secretary of the Board of Directors of the result thereof.
SECTION 1.05. PROXIES. In all elections of Directors, each shareholder of
record, who is qualified to vote under the provisions of Federal Law, shall have
the right to vote the number of shares of record in such shareholder's name for
as many persons as there are Directors to be elected, or to cumulate such shares
as provided by Federal Law. In deciding all other questions at meetings of
shareholders, each shareholder shall be entitled to one vote on each share of
stock of record in such shareholder's name. Shareholders may vote by proxy duly
authorized in writing. All proxies used at the annual meeting shall be secured
for that meeting only, or any adjournment thereof, and shall be dated, if not
dated by the shareholder, as of the date of the receipt thereof. No officer or
employee of this Bank may act as proxy.
SECTION 1.06. QUORUM. Holders of record of a majority of the shares of the
capital stock of the Bank, eligible to be voted, present either in person or by
proxy, shall constitute a quorum for the transaction of business at any meeting
of shareholders, but shareholders present at any meeting and constituting less
than a quorum may, without further notice, adjourn the meeting from time to time
until a quorum is obtained. A majority of the votes cast shall decide every
question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
DIRECTORS
SECTION 2.01. QUALIFICATIONS. Each Director shall have the qualifications
prescribed by law. No person elected as a Director may exercise any of the
powers of office until such Director has taken the oath of such office.
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<PAGE> 15
SECTION 2.02. VACANCIES. Directors of the Bank shall hold office for one year or
until their successors are elected and qualified. Any vacancy in the Board shall
be filled by appointment of the remaining Directors, and any Director so
appointed shall hold office until the next election.
SECTION 2.03. ORGANIZATION MEETING. The Directors elected by the shareholders
shall meet for organization of the new Board of Directors at the time and place
fixed by the presiding officer of the annual meeting. If at the time fixed for
such meeting there is no quorum present, the Directors in attendance may adjourn
from time to time until a quorum is obtained. A majority of the number of
Directors elected by the shareholders shall constitute a quorum for the
transaction of business.
SECTION 2.04. REGULAR MEETINGS. The regular meetings of the Board of Directors
shall be held at such date, time and place as the Board may previously
designate, or should the Board fail to so designate, at such date, time and
place as the Chairman of the Board, Chief Executive Officer, or President may
fix. Whenever a quorum is not present, the Directors in attendance shall adjourn
the meeting to a time not later than the date fixed by the By-Laws for the next
succeeding regular meeting of the Board. Members of the Board of Directors may
participate in such meetings through use of conference telephone or similar
communications equipment, so long as all members participating in such meetings
can hear one another.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the Board of Directors shall
be held at the call of the Chairman of the Board, Chief Executive Officer, or
President, or at the request of two or more Directors. Any special meeting may
be held at such place and at such time as may be fixed in the call. Written or
oral notice shall be given to each Director not later than the day next
preceding the day on which the special meeting is to be held, which notice may
be waived in writing. The presence of a Director at any meeting of the Board of
Directors shall be deemed a waiver of notice thereof by such Director. Whenever
a quorum is not present, the Directors in attendance shall adjourn the special
meeting from day to day until a quorum is obtained. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.06. QUORUM. A majority of the Directors shall constitute a quorum at
any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as herein
defined, but at least one-third and not less than two of the authorized number
of Directors are present at a meeting of the Directors, business of the Bank may
be transacted and matters before the Board approved or disapproved by the
unanimous vote of the Directors present.
SECTION 2.07. COMPENSATION. Each member of the Board of Directors shall receive
such fees for attendance at Board and Board committee meetings and such fees for
service as a Director, irrespective of meeting attendance, as from time to time
are fixed by resolution of the Board; provided, however, that payment hereunder
shall not be made to a Director for meetings attended and/or Board service which
are not for the Bank's sole benefit and which are concurrent and duplicative
15
<PAGE> 16
with meetings attended or Board service for an affiliate of the Bank for which
the Director receives payment; and provided further that fees hereunder shall
not be paid in the case of any Director in the regular employment of the Bank
or of one of its affiliates. Each member of the Board of Directors, whether or
not such Director is in the regular employment of the Bank or of one of its
affiliates, shall be reimbursed for travel expenses incident to attendance at
Board and Board committee meetings.
SECTION 2.08. EXECUTIVE COMMITTEE. There may be a standing committee of the
Board of Directors known as the Executive Committee which shall possess and
exercise, when the Board is not in session, all the powers of the Board that may
lawfully be delegated. The Executive Committee shall consist of at least three
Board members, one of whom shall be the Chairman of the Board, Chief Executive
Officer or the President. The other members of the Executive Committee shall be
appointed by the Chairman of the Board, the Chief Executive Officer, or the
President, with the approval of the Board, and who shall continue as members of
the Executive Committee until their successors are appointed, provided, however,
that any member of the Executive Committee may be removed by the Board upon a
majority vote thereof at any regular or special meeting of the Board. The
Chairman, Chief Executive Officer, or President shall fill any vacancy in the
Executive Committee by the appointment of another Director, subject to the
approval of the Board of Directors. The Executive Committee shall meet at the
call of the Chairman, Chief Executive Officer, or President or any two members
thereof at such time or times and place as may be designated. In the event of
the absence of any member or members of the Executive Committee, the presiding
member may appoint a member or members of the Board to fill the place or places
of such absent member or members to serve during such absence. Two members of
the Executive Committee shall constitute a quorum. When neither the Chairman of
the Board, the Chief Executive Officer, nor President are present, the Executive
Committee shall appoint a presiding officer. The Executive Committee shall
report its proceedings and the action taken by it to the Board of Directors.
SECTION 2.09. OTHER COMMITTEES. The Board of Directors may appoint such special
committees from time to time as are in its judgment necessary in the interest of
the Bank.
ARTICLE III
OFFICERS, MANAGEMENT STAFF AND EMPLOYEES
SECTION 3.01. OFFICERS AND MANAGEMENT STAFF.
(a) The executive officers of the Bank shall include a Chairman of the Board,
Chief Executive Officer, President, Chief Financial Officer, Secretary, Security
Officer, and may include one or more Senior Managing Directors or Managing
Directors. The Chairman of the Board, Chief Executive Officer, President, any
Senior Managing Director, any Managing Director, Chief Financial Officer,
Secretary, and Security Officer shall be elected by the Board. The Chairman of
the Board, Chief Executive Officer, and the President shall be elected by the
Board from their own number. Such officers as the Board shall elect from their
own number shall hold office from the date of their election as officers until
the organization meeting of the Board of Directors following the next annual
meeting of shareholders, provided, however, that such officers may be relieved
of their duties at any time by action of the Board of Directors, in which event
all the powers incident to their office shall immediately terminate. The
Chairman of the Board, Chief Executive Officer, or the President shall preside
at all meetings of shareholders and meetings of the Board of Directors.
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<PAGE> 17
(b) The management staff of the Bank shall include officers elected by the
Board, officers appointed by the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and such other persons in the employment of the Bank
who, pursuant to authorization by a duly authorized officer of the Bank, perform
management functions and have management responsibilities. Any two or more
offices may be held by the same person except that no person shall hold the
office of Chairman of the Board, Chief Executive Officer and/or President and at
the same time also hold the office of Secretary.
(c) Except as provided in the case of the elected officers who are members of
the Board, all officers and employees, whether elected or appointed, shall hold
office at the pleasure of the Board. Except as otherwise limited by law or these
By-Laws, the Board assigns to the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and/or each of their respective designees the authority
to control all personnel, including elected and appointed officers and employees
of the Bank, to employ or direct the employment of such officers and employees
as he or she may deem necessary, including the fixing of salaries and the
dismissal of such officers and employees at pleasure, and to define and
prescribe the duties and responsibilities of all officers and employees of the
Bank, subject to such further limitations and directions as he or she may from
time to time deem appropriate.
(d) The Chairman of the Board, the Chief Executive Officer, the President, any
Senior Managing Director, any Managing Director, the Chief Financial Officer,
and any other officer of the Bank, to the extent that such officer is authorized
in writing by the Chairman of the Board, the Chief Executive Officer, the
President, any Senior Managing Director, any Managing Director, or the Chief
Financial Officer may appoint persons other than officers who are in employment
of the Bank to serve in management positions and in connection therewith, the
appointing officer may assign such title, salary, responsibilities and functions
as are deemed appropriate, provided, however, that nothing contained herein
shall be construed as placing any limitation on the authority of the Chairman of
the Board, the Chief Executive Officer, the President, any Senior Managing
Director, any Managing Director, or the Chief Financial Officer as provided in
this and other sections of these By-Laws.
(e) The Senior Managing Directors and the Managing Directors of the Bank shall
have general and active authority over the management of the business of the
Bank, shall see that all orders and resolutions of the Board of Directors are
carried into effect, and shall do or cause to be done all things necessary or
proper to carry on the business of the Bank in accordance with provisions of
applicable law and regulations. Each Senior Managing Director and Managing
Director shall perform all duties incident to his or her office and such other
and further duties, as may from time to time be required by the Chief Executive
Officer, the President, the Board of Directors, or the shareholders. The
specification of authority in these By-Laws wherever and to whomever granted
shall not be construed to limit in any manner the general powers of delegation
granted to a Senior Managing Director or a Managing Director in conducting the
business of the Bank. In the absence of a Senior Managing Director or a Managing
Director, such officer as is designated by the Senior Managing Director or the
Managing Director shall be vested with all the powers and perform all the duties
of the Senior Managing Director or the Managing Director as defined by these
By-Laws.
17
<PAGE> 18
(f) Each Managing Director who is assigned oversight of one or more trust
service offices shall appoint a management committee known as the Investment
Management and Trust Committee consisting of the Managing Director of the trust
service offices and at least three other members who shall be capable and
experienced officers of the Bank appointed from time to time by the Managing
Director and who shall continue as members of the Investment Management and
Trust Committee until their successors are appointed, provided, however, that
any member of the Investment Management and Trust Committee may be removed by
the Managing Director as provided in this and other sections of these By-Laws.
The Managing Director shall fill any vacancy in the Investment Management and
Trust Committee by the appointment of another capable and experienced officer of
the Bank. Each Investment Management and Trust Committee shall meet at such
date, time and place as the Managing Director shall fix. In the event of the
absence of any member or members of the Investment Management and Trust
Committee, the Managing Director may, in his or her discretion, appoint another
officer of the Bank to fill the place or places of such absent member or members
to serve during such absence. A majority of each Investment Management and Trust
Committee shall constitute a quorum. Each Investment Management and Trust
Committee shall carry out the policies of the Bank, as adopted by the Board of
Directors, which shall be formulated and executed in accordance with State and
Federal Law, Regulations of the Comptroller of the Currency, and sound fiduciary
principles. In carrying out the policies of the Bank, each Investment Management
and Trust Committee is hereby authorized to establish management teams whose
duties and responsibilities shall be specifically set forth in the policies of
the Bank. Each such management team shall report such proceedings and the
actions taken thereby to the Investment Management and Trust Committee. Each
Managing Director shall then report such proceedings and the actions taken
thereby to the Board of Directors.
SECTION 3.02. POWERS AND DUTIES OF MANAGEMENT STAFF. Pursuant to the fiduciary
powers granted to this Bank under the provisions of Federal Law and Regulations
of the Comptroller of the Currency, the Chairman of the Board, the Chief
Executive Officer, the President, the Senior Managing Directors, the Managing
Directors, the Chief Financial Officer, and those officers so designated and
authorized by the Chairman of the Board, the Chief Executive Officer, the
President, the Senior Managing Directors, the Managing Directors, or the Chief
Financial Officer are authorized for and on behalf of the Bank, and to the
extent permitted by law, to make loans and discounts; to purchase or acquire
drafts, notes, stocks, bonds, and other securities for investment of funds held
by the Bank; to execute and purchase acceptances; to appoint, empower and direct
all necessary agents and attorneys; to sign and give any notice required to be
given; to demand payment and/or to declare due for any default any debt or
obligation due or payable to the Bank upon demand or authorized to be declared
due; to foreclose any mortgages; to exercise any option, privilege or election
to forfeit, terminate, extend or renew any lease; to authorize and direct any
proceedings for the collection of any money or for the enforcement of any right
or obligation; to adjust, settle and compromise all claims of every kind and
description in favor of or against the Bank, and to give receipts, releases and
discharges therefor; to borrow money and in connection therewith to make,
execute and deliver notes, bonds or other evidences of indebtedness; to pledge
or hypothecate any securities or any stocks, bonds, notes or any property real
or personal held or owned by the Bank, or to rediscount any notes or other
obligations held or owned by the Bank, whenever in his or her judgment it is
reasonably necessary for the operation of the Bank; and in furtherance of and in
addition to the powers hereinabove set forth to do all such acts and to take all
such proceedings as in his or her judgment are necessary and incidental to the
operation of the Bank.
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<PAGE> 19
SECTION 3.03. SECRETARY. The Secretary or such other officers as may be
designated by the Chief Executive Officer shall have supervision and control of
the records of the Bank and, subject to the direction of the Chief Executive
Officer, shall undertake other duties and functions usually performed by a
corporate secretary. Other officers may be designated by the Secretary as
Assistant Secretary to perform the duties of the Secretary.
SECTION 3.04. EXECUTION OF DOCUMENTS. Any member of the Bank's management staff
or any employee of the Bank designated as an officer on the Bank's payroll
system is hereby authorized for and on behalf of the Bank to sell, assign,
lease, mortgage, transfer, deliver and convey any real or personal property,
including shares of stock, bonds, notes, certificates of indebtedness (including
the assignment and redemption of registered United States obligations) and all
other forms of intangible property now or hereafter owned by or standing in the
name of the Bank, or its nominee, or held by the Bank as collateral security, or
standing in the name of the Bank, or its nominee, in any fiduciary capacity or
in the name of any principal for whom this Bank may now or hereafter be acting
under a power of attorney or as agent, and to execute and deliver such partial
releases from any discharges or assignments of mortgages and assignments or
surrender of insurance policies, deeds, contracts, assignments or other papers
or documents as may be appropriate in the circumstances now or hereafter held by
the Bank in its own name, in a fiduciary capacity, or owned by any principal for
whom this Bank may now or hereafter be acting under a power of attorney or as
agent; provided, however, that, when necessary, the signature of any such person
shall be attested or witnessed in each case by another officer of the Bank.
Any member of the Bank's management staff or any employee of the Bank designated
as an officer on the Bank's payroll system is hereby authorized for and on
behalf of the Bank to execute any indemnity and fidelity bonds, trust
agreements, proxies or other papers or documents of like or different character
necessary, desirable or incidental to the appointment of the Bank in any
fiduciary capacity, the conduct of its business in any fiduciary capacity, or
the conduct of its other banking business; to sign and issue checks, drafts,
orders for the payment of money and certificates of deposit; to sign and endorse
bills of exchange, to sign and countersign foreign and domestic letters of
credit, to receive and receipt for payments of principal, interest, dividends,
rents, fees and payments of every kind and description paid to the Bank, to sign
receipts for money or other property acquired by or entrusted to the Bank, to
guarantee the genuineness of signatures on assignments of stocks, bonds or other
securities, to sign certifications of checks, to endorse and deliver checks,
drafts, warrants, bills, notes, certificates of deposit and acceptances in all
business transactions of the Bank; also to foreclose any mortgage, to execute
and deliver receipts for any money or property; also to sign stock certificates
for and on behalf of this Bank as transfer agent or registrar, and to
authenticate bonds, debentures, land or lease trust certificates or other forms
of security issued pursuant to any indenture under which this Bank now or
hereafter is acting as trustee or in any other fiduciary capacity; to execute
and deliver various forms of documents or agreements necessary to effectuate
certain investment strategies for various fiduciary or custody customers of the
Bank, including, without limitation, exchange funds, options, both listed and
over-the-counter, commodities trading, futures trading, hedge funds, limited
partnerships, venture capital funds, swap or collar transactions and other
similar investment vehicles for which the Bank now or in the future may deem
appropriate for investment of fiduciary customers or in which non-fiduciary
customers may direct investment by the Bank.
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<PAGE> 20
Without limitation on the foregoing, the Chief Executive Officer, Chairman of
the Board, or President of the Bank shall have the authority from time to time
to appoint officers of the Bank as Vice President for the sole purpose of
executing releases or other documents incidental to the conduct of the Bank's
business in any fiduciary capacity where required by state law or the governing
document. In addition, other persons in the employment of the Bank or its
affiliates may be authorized by the Chief Executive Officer, Chairman of the
Board, President, Senior Managing Directors, Managing Directors, or Chief
Financial Officer to perform acts and to execute the documents described in the
paragraph above, subject, however, to such limitations and conditions as are
contained in the authorization given to such person.
SECTION 3.05. PERFORMANCE BOND. All officers and employees of the Bank shall be
bonded for the honest and faithful performance of their duties for such amount
as may be prescribed by the Board of Directors.
ARTICLE IV
STOCKS AND STOCK CERTIFICATES
SECTION 4.01. STOCK CERTIFICATES. The shares of stock of the Bank shall be
evidenced by certificates which shall bear the signature of the Chairman of the
Board, the Chief Executive Officer, or the President (which signature may be
engraved, printed or impressed), and shall be signed manually by the Secretary,
or any other officer appointed by the Chief Executive Officer for that purpose.
In case any such officer who has signed or whose facsimile signature has been
placed upon such certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Bank with the same effect as if
such officer had not ceased to be such at the time of its issue. Each such
certificate shall bear the corporate seal of the Bank, shall recite on its face
that stock represented thereby is transferable only upon the books of the Bank
when properly endorsed and shall recite such other information as is required by
law and deemed appropriate by the Board. The corporate seal may be facsimile
engraved or printed.
SECTION 4.02. STOCK ISSUE AND TRANSFER. The shares of stock of the Bank shall be
transferable only upon the stock transfer books of the Bank and, except as
hereinafter provided, no transfer shall be made or new certificates issued
except upon the surrender for cancellation of the certificate or certificates
previously issued therefor. In the case of the loss, theft, or destruction of
any certificate, a new certificate may be issued in place of such certificate
upon the furnishing of an affidavit setting forth the circumstances of such
loss, theft, or destruction and indemnity satisfactory to the Chairman of the
Board, the Chief Executive Officer, or the President. The Board of Directors or
the Chairman of the Board, Chief Executive Officer, or the President may
authorize the issuance of a new certificate therefor without the furnishing of
indemnity. Stock transfer books, in which all transfers of stock shall be
recorded, shall be provided. The stock transfer books may be closed for a
reasonable period and under such conditions as the Board of Directors may at
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any time determine, for any meeting of shareholders, the payment of dividends or
any other lawful purpose. In lieu of closing the transfer books, the Board of
Directors may, in its discretion, fix a record date and hour constituting a
reasonable period prior to the day designated for the holding of any meeting of
the shareholders or the day appointed for the payment of any dividend, or for
any other purpose at the time as of which shareholders entitled to notice of and
to vote at any such meeting or to receive such dividend or to be treated as
shareholders for such other purpose shall be determined, and only shareholders
of record at such time shall be entitled to notice of or to vote at such meeting
or to receive such dividends or to be treated as shareholders for such other
purpose.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.01. SEAL. The seal of the Bank shall be circular in form with "SEAL"
in the center, and the name "BANK ONE TRUST COMPANY, NA" located clockwise
around the upper half of the seal.
SECTION 5.02. MINUTE BOOK. The organization papers of this Bank, the Articles of
Association, the returns of judges of elections, the By-Laws and any amendments
thereto, the proceedings of all regular and special meetings of the shareholders
and of the Board of Directors, and reports of the committees of the Board of
Directors shall be recorded in the minute books of the Bank. The minutes of each
such meeting shall be signed by the presiding officer and attested by the
secretary of the meeting.
SECTION 5.03. CORPORATE POWERS. The corporate existence of the Bank shall
continue until terminated in accordance with the laws of the United States. The
purpose of the Bank shall be to carry on the general business of a commercial
bank trust department and to engage in such activities as are necessary,
incident, or related to such business. The Articles of Association of the Bank
shall not be amended, or any other provision added elsewhere in the Articles
expanding the powers of the Bank, without the prior approval of the Comptroller
of the Currency.
SECTION 5.04. AMENDMENT OF BY-LAWS. The By-Laws may be amended, altered or
repealed, at any regular or special meeting of the Board of Directors, by a vote
of a majority of the Directors.
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As amended April 24, 1991 Section 3.01 (Officers and Management Staff)
Section 3.02 (Chief Executive Officer)
Section 3.03 (Powers and Duties of Officers and
Management Staff)
Section 3.05 (Execution of Documents)
As amended January 27, 1995 Section 2.04 (Regular Meetings)
Section 2.05 (Special Meetings)
Section 3.01(f) (Officers and Management Staff)
Section 3.03(e) (Powers and Duties of Officers
and Management Staff)
Section 5.01 (Seal)
Amended and restated in its entirety effective May 1, 1996
As amended August 1, 1996 Section 2.09 (Trust Examining Committee)
Section 2.10 (Other Committees)
As amended October 16, 1997 Section 3.01 (Officers and Management Staff)
Section 3.02 (Powers and Duties of Officers and
Management Staff)
Section 3.04 (Execution of Documents)
As amended January 1, 1998 Section 1.01 (Annual Meeting)
23
<PAGE> 23
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
September 13, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an amended and restated trust agreement
between ONB Capital Trust III and Bank One Trust Company, NA, as Trustee, the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
BANK ONE TRUST COMPANY, NA
BY: /s/ Sandra L. Caruba
--------------------------------------
SANDRA L. CARUBA
VICE PRESIDENT
24
<PAGE> 1
EXHIBIT 26.5
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
------
------------------------
BANK ONE TRUST COMPANY, NA
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 31-0838515
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE TRUST COMPANY, NA
100 EAST BROAD STREET
COLUMBUS, OHIO 43271-0181
ATTN: LINDA J. PATTERSON, SENIOR MANAGING DIRECTOR, (614) 248-5193
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
------------------------
ONB CAPITAL TRUST IV
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE APPLIED FOR
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
420 MAIN STREET
EVANSVILLE, INDIANA 47708
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
CAPITAL SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; The Board of Governors of
the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.
2. A copy of the certificates of authority of the
trustee to commence business.
3. A copy of the authorization of the trustee to
exercise corporate trust powers.
4. A copy of the existing by-laws of the trustee.
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
2
<PAGE> 3
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, NA, a national banking
association organized and existing under the laws of the United States
of America, has duly caused this Statement of Eligibility to be signed
on its behalf by the undersigned, thereunto duly authorized, all in the
City of Chicago and State of Illinois, on the 13th day of September,
1999.
BANK ONE TRUST COMPANY, NA,
TRUSTEE
BY /s/ Sandra L. Caruba
------------------------------------------------
SANDRA L. CARUBA
VICE PRESIDENT
<PAGE> 4
EXHIBIT 1
A COPY OF THE ARTICLES OF ASSOCIATION OF THE
TRUSTEE NOW IN EFFECT
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
of
BANK ONE TRUST COMPANY, NA
FIRST. The title of this Association shall be BANK ONE TRUST COMPANY, NA.
SECOND. The main office of the Association shall be in the City of Columbus,
County of Franklin, State of Ohio.
The business of the Association will be limited to the fiduciary powers and the
support of activities incidental to the exercise of those powers. The
Association will not expand or alter its business beyond that stated in this
article without the prior approval of the Comptroller of the Currency.
THIRD. The Board of Directors of this Association shall consist of not less than
five nor more than twenty-five persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full Board of
Directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director shall own common or preferred stock of
the Association, or of a holding company owning the Association, with an
aggregate par, fair market or equity value of not less than $1,000, as of either
(i) the date of purchase, (ii) the date the person became a director, or (iii)
the date of that person's most recent election to the Board of Directors,
whichever is more recent. Any combination of common or preferred stock of the
Association or holding company may be used.
Any vacancy in the Board of Directors may be filled by action of a majority of
the remaining directors between meetings of shareholders. The Board of Directors
may not increase the number of directors between meetings of shareholders to a
number which: (1) exceeds by more than two the number of directors last elected
by shareholders where the number was 15 or less; or (2) exceeds by more than
four the number of directors last elected by shareholders where the number was
16 or more, but in no event shall the number of directors exceed 25.
Terms of directors, including directors selected to fill vacancies, shall expire
at the next regular meeting of shareholders at which directors are elected,
unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
<PAGE> 5
Honorary or advisory members of the Board of Directors, without voting power or
power of final decision in matters concerning the business of the Association,
may be appointed by resolution of a majority of the full Board of Directors, or
by resolution of shareholders at any annual or special meeting. Honorary or
advisory directors shall not be counted to determine the number of directors of
the Association or the presence of a quorum in connection with any board action,
and shall not be required to own qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It shall
be held at the main office or any other convenient place the Board of Directors
may designate, on the day of each year specified therefor in the Bylaws or, if
that day falls on a legal holiday in the state in which the Association is
located, on the next following banking day. If no election is held on the day
fixed or in the event of a legal holiday on the following banking day, an
election may be held on any subsequent day within 60 days of the day fixed, to
be designated by the Board of Directors or, if the directors fail to fix the
day, by shareholders representing two-thirds of the shares issued and
outstanding. In all cases at least 10 days advance notice of the meeting shall
be given to the shareholders by first class mail.
In all elections of directors, the number of votes each common shareholder may
cast will be determined by multiplying the number of shares such shareholder
owns by the number of directors to be elected. Those votes may be cumulated and
cast for a single candidate or may be distributed among two or more candidates
in the manner selected by the shareholder. On all other questions, each common
shareholder shall be entitled to one vote for each share of stock held by such
shareholder. If the issuance of preferred stock with voting rights has been
authorized by a vote of shareholders owning a majority of the common stock of
the association, preferred shareholders will have cumulative voting rights and
will be included within the same class as common shareholders, for purposes of
elections of directors.
A director may resign at any time by delivering written notice to the Board of
Directors, its chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of the
affirmative requirements for qualification, or for cause, provided, however,
that a director may not be removed if the number of votes sufficient to elect
him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of this Association shall be
eighty thousand shares of common stock of the par value of ten dollars ($10.00)
each; but said capital stock may be increased or decreased from time to time,
according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time
<PAGE> 6
Honorary or advisory members of the Board of Directors, without voting power or
power of final decision in matters concerning the business of the Association,
may be appointed by resolution of a majority of the full Board of Directors, or
by resolution of shareholders at any annual or special meeting. Honorary or
advisory directors shall not be counted to determine the number of directors of
the Association or the presence of a quorum in connection with any board action,
and shall not be required to own qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It shall
be held at the main office or any other convenient place the Board of Directors
may designate, on the day of each year specified therefor in the Bylaws or, if
that day falls on a legal holiday in the state in which the Association is
located, on the next following banking day. If no election is held on the day
fixed or in the event of a legal holiday on the following banking day, an
election may be held on any subsequent day within 60 days of the day fixed, to
be designated by the Board of Directors or, if the directors fail to fix the
day, by shareholders representing two-thirds of the shares issued and
outstanding. In all cases at least 10 days advance notice of the meeting shall
be given to the shareholders by first class mail.
In all elections of directors, the number of votes each common shareholder may
cast will be determined by multiplying the number of shares such shareholder
owns by the number of directors to be elected. Those votes may be cumulated and
cast for a single candidate or may be distributed among two or more candidates
in the manner selected by the shareholder. On all other questions, each common
shareholder shall be entitled to one vote for each share of stock held by such
shareholder. If the issuance of preferred stock with voting rights has been
authorized by a vote of shareholders owning a majority of the common stock of
the association, preferred shareholders will have cumulative voting rights and
will be included within the same class as common shareholders, for purposes of
elections of directors.
A director may resign at any time by delivering written notice to the Board of
Directors, its chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of the
affirmative requirements for qualification, or for cause, provided, however,
that a director may not be removed if the number of votes sufficient to elect
him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of this Association shall be
eighty thousand shares of common stock of the par value of ten dollars ($10.00)
each; but said capital stock may be increased or decreased from time to time,
according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time determine and at such
<PAGE> 7
price as the Board of Directors may from time to time fix. Unless otherwise
specified in the Articles of Association or required by law, (1) all matters
requiring shareholder action, including amendments to the Articles of
Association, must be approved by shareholders owning a majority voting interest
in the outstanding voting stock, and (2) each shareholder shall be entitled to
one vote per share.
Unless otherwise specified in the Articles of Association or required by law,
all shares of voting stock shall be voted together as a class on any matters
requiring shareholder approval. If a proposed amendment would affect two or more
classes or series in the same or a substantially similar way, all the classes or
series so affected must vote together as a single voting group on the proposed
amendment.
Shares of the same class or series may be issued as a dividend on a pro rata
basis and without consideration. Shares of another class or series may be issued
as share dividends in respect of a class or series of stock if approved by a
majority of the votes entitled to be cast by the class or series to be issued
unless there are no outstanding shares of the class or series to be issued.
Unless otherwise provided by the Board of Directors, the record date for
determining shareholders entitled to a share dividend shall be the date the
Board of Directors authorizes the share dividend.
Unless otherwise provided in the Bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close of
business on the day before the first notice is mailed or otherwise sent to the
shareholders, provided that in no event may a record date be more than 70 days
before the meeting.
If a shareholder is entitled to fractional shares pursuant to preemptive rights,
a stock dividend, consolidation or merger, reverse stock split or otherwise, the
Association may: (a) issue fractional shares or; (b) in lieu of the issuance of
fractional shares, issue script or warrants entitling the holder to receive a
full share upon surrendering enough script or warrants to equal a full share;
(c) if there is an established and active market in the Association's stock,
make reasonable arrangements to provide the shareholder with an opportunity to
realize a fair price through sale of the fraction, or purchase of the additional
fraction required for a full share; (d) remit the cash equivalent of the
fraction to the shareholder; or (e) sell full shares representing all the
fractions at public auction or to the highest bidder after having solicited and
received sealed bids from at least three licensed stock brokers, and distribute
the proceeds pro rata to shareholders who otherwise would be entitled to the
fractional shares. The holder of a fractional share is entitled to exercise the
rights for shareholder, including the right to vote, to receive dividends, and
to participate in the assets of the Association upon liquidation, in proportion
to the fractional interest. The holder of script or warrants is not entitled to
any of these rights unless the script or warrants explicitly provide for such
rights. The script or warrants may be subject to such additional conditions as:
(1) that the script or warrants will become void if not exchanged for full
shares before a specified date; and (2) that the shares for which the script or
warrants are exchangeable may be sold at the option of the Association and the
proceeds paid to scriptholders.
<PAGE> 8
SEVENTH. The Board of Directors shall have the power to change the location of
the main office of this Association to any other place within the limits of the
City of Columbus, State of Ohio, without the approval of the shareholders; and
shall have the power to change the location of the main office of this
Association to any other place outside the limits of the City of Columbus, State
of Ohio, but not more than thirty miles beyond such limits, with the affirmative
vote of shareholders owning two-thirds of the stock of the Association, subject
to receipt of a certificate of approval from the Comptroller of the Currency.
The Board of Directors shall have the power to establish or change the location
of any branch or branches of the Association to any other location permitted
under applicable law without the approval of the shareholders, subject to
approval by the Office of the Comptroller of the Currency. The Board of
Directors shall have the power to establish or change the location of any
nonbranch office or facility of the Association without the approval of the
shareholders.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
NINTH. The Board of Directors of this Association, or any shareholders owning,
in the aggregate, not less than 20 percent of the stock of this Association, may
call a special meeting of shareholders at any time. Unless otherwise provided by
the Bylaws or the laws of the United States, or waived by shareholders, a notice
of the time, place, and purpose of every annual and special meeting of the
shareholders shall be given by first-class mail, postage prepaid, mailed at
least 10, and no more than 60, days prior to the date of the meeting to each
shareholder of record at his/her address as shown upon the books of this
Association. Unless otherwise provided by the Bylaws, any action requiring
approval of shareholders must be effected at a duly called annual or special
meeting.
TENTH. The Association shall provide indemnification as set forth below:
Every person who is or was a Director, officer or employee of the Association or
of any other corporation which he served as a Director, officer or employee at
the request of the Association as part of his regularly assigned duties may be
indemnified by the Association in accordance with the provisions of this Article
against all liability (including, without limitation, judgments, fines,
penalties, and settlements) and all reasonable expenses (including, without
limitation, attorneys' fees and investigative expenses) that may be incurred or
paid by him in connection with any claim, action, suit or proceeding, whether
civil, criminal or administrative (all referred to hereafter in this Article as
"Claims") or in connection with any appeal relating thereto in which he may
become involved as a party or otherwise or with which he may be threatened by
reason of his being or having been a Director, officer or employee of the
Association or such other corporation, or by reason of any action taken or
omitted by him in his capacity as such Director, officer or employee, whether or
not he continues to be such at the time such liability or expenses are incurred;
provided that nothing contained in this Article shall be construed to permit
indemnification of any such person who is adjudged guilty of, or liable for,
willful misconduct, gross neglect of duty or criminal acts, unless, at the time
such indemnification is sought, such indemnification in such instance is
permissible under applicable law and regulations, including published rulings of
the Comptroller of the Currency or other appropriate
<PAGE> 9
SEVENTH. The Board of Directors shall have the power to change the location of
the main office of this Association to any other place within the limits of the
City of Columbus, State of Ohio, without the approval of the shareholders; and
shall have the power to change the location of the main office of this
Association to any other place outside the limits of the City of Columbus, State
of Ohio, but not more than thirty miles beyond such limits, with the affirmative
vote of shareholders owning two-thirds of the stock of the Association, subject
to receipt of a certificate of approval from the Comptroller of the Currency.
The Board of Directors shall have the power to establish or change the location
of any branch or branches of the Association to any other location permitted
under applicable law without the approval of the shareholders, subject to
approval by the Office of the Comptroller of the Currency. The Board of
Directors shall have the power to establish or change the location of any
nonbranch office or facility of the Association without the approval of the
shareholders.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
NINTH. The Board of Directors of this Association, or any shareholders owning,
in the aggregate, not less than 20 percent of the stock of this Association, may
call a special meeting of shareholders at any time. Unless otherwise provided by
the Bylaws or the laws of the United States, or waived by shareholders, a notice
of the time, place, and purpose of every annual and special meeting of the
shareholders shall be given by first-class mail, postage prepaid, mailed at
least 10, and no more than 60, days prior to the date of the meeting to each
shareholder of record at his/her address as shown upon the books of this
Association. Unless otherwise provided by the Bylaws, any action requiring
approval of shareholders must be effected at a duly called annual or special
meeting.
TENTH. The Association shall provide indemnification as set forth below:
Every person who is or was a Director, officer or employee of the Association or
of any other corporation which he served as a Director, officer or employee at
the request of the Association as part of his regularly assigned duties may be
indemnified by the Association in accordance with the provisions of this Article
against all liability (including, without limitation, judgments, fines,
penalties, and settlements) and all reasonable expenses (including, without
limitation, attorneys' fees and investigative expenses) that may be incurred or
paid by him in connection with any claim, action, suit or proceeding, whether
civil, criminal or administrative (all referred to hereafter in this Article as
"Claims") or in connection with any appeal relating thereto in which he may
become involved as a party or otherwise or with which he may be threatened by
reason of his being or having been a Director, officer or employee of the
Association or such other corporation, or by reason of any action taken or
omitted by him in his capacity as such Director, officer or employee, whether or
not he continues to be such at the time such liability or expenses are incurred;
provided that nothing contained in this Article shall be construed to permit
indemnification of any such person who is adjudged guilty of, or liable for,
willful misconduct, gross neglect of duty or criminal acts, unless, at the time
such indemnification is sought, such indemnification in such instance is
permissible under applicable law and regulations, including published rulings of
the Comptroller of the Currency or other appropriate supervisory or regulatory
<PAGE> 10
authority; and provided further that there shall be no indemnification of
Directors, officers, or employees against expenses, penalties, or other
payments incurred in an administrative proceeding or action instituted by an
appropriate regulatory agency which proceeding or action results in a final
order assessing civil money penalties or requiring affirmative action by an
individual or individuals in the form of payments to the Association.
Every person who may be indemnified under the provisions of this Article and who
has been wholly successful on the merits with respect to any Claim shall be
entitled to indemnification as of right. Except as provided in the preceding
sentence, any indemnification under this Article shall be at the sole discretion
of the Board of Directors and shall be made only if the Board of Directors or
the Executive Committee acting by a quorum consisting of Directors who are not
parties to such Claim shall find or if independent legal counsel (who may be the
regular counsel of the Association) selected by the Board of Directors or
Executive Committee whether or not a disinterested quorum exists shall render
their opinion that in view of all of the circumstances then surrounding the
Claim, such indemnification is equitable and in the best interests of the
Association. Among the circumstances to be taken into consideration in arriving
at such a finding or opinion is the existence or non-existence of a contract of
insurance or indemnity under which the Association would be wholly or partially
reimbursed for such indemnification, but the existence or non-existence of such
insurance is not the sole circumstance to be considered nor shall it be wholly
determinative of whether such indemnification shall be made. In addition to such
finding or opinion, no indemnification under this Article shall be made unless
the Board of Directors or the Executive Committee acting by a quorum consisting
of Directors who are not parties to such Claim shall find or if independent
legal counsel (who may be the regular counsel of the Association) selected by
the Board of Directors or Executive Committee whether or not a disinterested
quorum exists shall render their opinion that the Directors, officer or employee
acted in good faith in what he reasonably believed to be the best interests of
the Association or such other corporation and further in the case of any
criminal action or proceeding, that the Director, officer or employee reasonably
believed his conduct to be lawful. Determination of any Claim by judgment
adverse to a Director, officer or employee by settlement with or without Court
approval or conviction upon a plea of guilty or of nolo contendere or its
equivalent shall not create a presumption that a Director, officer or employee
failed to meet the standards of conduct set forth in this Article. Expenses
incurred with respect to any Claim may be advanced by the Association prior to
the final disposition thereof upon receipt of an undertaking satisfactory to the
Association by or on behalf of the recipient to repay such amount unless it is
ultimately determined that he is entitled to indemnification under this Article.
The rights of indemnification provided in this Article shall be in addition to
any rights to which any Director, officer or employee may otherwise be entitled
by contract or as a matter of law. Every person who shall act as a Director,
officer or employee of this Association shall be conclusively presumed to be
doing so in reliance upon the right of indemnification provided for in this
Article.
<PAGE> 11
EXHIBIT 2
A COPY OF THE CERTIFICATE OF AUTHORITY OF THE
TRUSTEE TO COMMENCE BUSINESS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324,
et seq., as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody
and control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio,
(Charter No. 16235) is a National Banking Association formed under the laws of
the United States and is authorized thereunder to transact the business of
banking on the date of this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
24th day of March, 1999.
/s/ John D. Hawke, Jr.
---------------------------
Comptroller of the Currency
<PAGE> 12
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE TRUSTEE
TO EXERCISE CORPORATE TRUST POWERS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter
No. 16235) was granted, under the hand and seal of the Comptroller, the right to
act in all fiduciary capacities authorized under the provisions of the Act of
Congress approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a, and that the
authority so granted remains in full force and effect on the date of this
Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
24th day of March, 1999.
/s/ John D. Hawke, Jr.
---------------------------
Comptroller of the Currency
<PAGE> 13
EXHIBIT 4
A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE
BANK ONE TRUST COMPANY, N.A.
BY-LAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1.01. ANNUAL MEETING. The regular annual meeting of the shareholders of
the Bank for the election of Directors and for the transaction of such business
as may properly come before the meeting shall be held at its main office, or
other convenient place duly authorized by the Board of Directors, on the same
day upon which any regular or special Board meeting is held from and including
the first Monday of January to, and including, the fourth Monday of February of
each year, or on the next succeeding banking day, if the day fixed falls on a
legal holiday. If from any cause, an election of Directors is not made on the
day fixed for the regular meeting of the shareholders or, in the event of a
legal holiday, on the next succeeding banking day, the Board of Directors shall
order the election to be held on some subsequent day, as soon thereafter as
practicable, according to the provisions of law; and notice thereof shall be
given in the manner herein provided for the annual meeting. Notice of such
annual meeting shall be given by or under the direction of the Secretary, or
such other officer as may be designated by the Chief Executive Officer, by
first-class mail, postage prepaid, to all shareholders of record of the Bank at
their respective addresses as shown upon the books of the Bank mailed not less
than ten days prior to the date fixed for such meeting.
SECTION 1.02. SPECIAL MEETINGS. A special meeting of the shareholders of the
Bank may be called at any time by the Board of Directors or by any three or more
shareholders owning, in the aggregate, not less than ten percent of the stock of
the Bank. Notice of any special meeting of the shareholders called by the Board
of Directors, stating the time, place and purpose of the meeting, shall be given
by or under the direction of the Secretary, or such other officer as is
designated by the Chief Executive Officer, by first-class mail, postage prepaid,
to all shareholders of record of the Bank at their respective addresses as shown
upon the books of the Bank mailed not less than ten days prior to the date fixed
for such meeting. Any special meeting of shareholders shall be conducted and its
proceedings recorded in the manner prescribed in these By-Laws for annual
meetings of shareholders.
13
<PAGE> 14
SECTION 1.03. SECRETARY OF MEETING OF SHAREHOLDERS. The Board of Directors may
designate a person to be the secretary of the meeting of shareholders. In the
absence of a presiding officer, as designated by these By-Laws, the Board of
Directors may designate a person to act as the presiding officer. In the event
the Board of Directors fails to designate a person to preside at a meeting of
shareholders and a secretary of such meeting, the shareholders present or
represented shall elect a person to preside and a person to serve as secretary
of the meeting. The secretary of the meeting of shareholders shall cause the
returns made by the judges of election and other proceedings to be recorded in
the minute books of the Bank. The presiding officer shall notify the
Directors-elect of their election and to meet forthwith for the organization of
the new Board of Directors. The minutes of the meeting shall be signed by the
presiding officer and the secretary designated for the meeting.
SECTION 1.04. JUDGES OF ELECTION. The Board of Directors may appoint as many as
three shareholders to be judges of the election, who shall hold and conduct the
same, and who shall, after the election has been held, notify, in writing over
their signatures, the secretary of the meeting of shareholders of the result
thereof and the names of the Directors elected; provided, however, that upon
failure for any reason of any judge or judges of election, so appointed by the
Directors, to serve, the presiding officer of the meeting shall appoint other
shareholders or their proxies to fill the vacancies. The judges of election, at
the request of the chairman of the meeting, shall act as tellers of any other
vote by ballot taken at such meeting, and shall notify, in writing over their
signature, the secretary of the Board of Directors of the result thereof.
SECTION 1.05. PROXIES. In all elections of Directors, each shareholder of
record, who is qualified to vote under the provisions of Federal Law, shall have
the right to vote the number of shares of record in such shareholder's name for
as many persons as there are Directors to be elected, or to cumulate such shares
as provided by Federal Law. In deciding all other questions at meetings of
shareholders, each shareholder shall be entitled to one vote on each share of
stock of record in such shareholder's name. Shareholders may vote by proxy duly
authorized in writing. All proxies used at the annual meeting shall be secured
for that meeting only, or any adjournment thereof, and shall be dated, if not
dated by the shareholder, as of the date of the receipt thereof. No officer or
employee of this Bank may act as proxy.
SECTION 1.06. QUORUM. Holders of record of a majority of the shares of the
capital stock of the Bank, eligible to be voted, present either in person or by
proxy, shall constitute a quorum for the transaction of business at any meeting
of shareholders, but shareholders present at any meeting and constituting less
than a quorum may, without further notice, adjourn the meeting from time to time
until a quorum is obtained. A majority of the votes cast shall decide every
question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
DIRECTORS
SECTION 2.01. QUALIFICATIONS. Each Director shall have the qualifications
prescribed by law. No person elected as a Director may exercise any of the
powers of office until such Director has taken the oath of such office.
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<PAGE> 15
SECTION 2.02. VACANCIES. Directors of the Bank shall hold office for one year or
until their successors are elected and qualified. Any vacancy in the Board shall
be filled by appointment of the remaining Directors, and any Director so
appointed shall hold office until the next election.
SECTION 2.03. ORGANIZATION MEETING. The Directors elected by the shareholders
shall meet for organization of the new Board of Directors at the time and place
fixed by the presiding officer of the annual meeting. If at the time fixed for
such meeting there is no quorum present, the Directors in attendance may adjourn
from time to time until a quorum is obtained. A majority of the number of
Directors elected by the shareholders shall constitute a quorum for the
transaction of business.
SECTION 2.04. REGULAR MEETINGS. The regular meetings of the Board of Directors
shall be held at such date, time and place as the Board may previously
designate, or should the Board fail to so designate, at such date, time and
place as the Chairman of the Board, Chief Executive Officer, or President may
fix. Whenever a quorum is not present, the Directors in attendance shall adjourn
the meeting to a time not later than the date fixed by the By-Laws for the next
succeeding regular meeting of the Board. Members of the Board of Directors may
participate in such meetings through use of conference telephone or similar
communications equipment, so long as all members participating in such meetings
can hear one another.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the Board of Directors shall
be held at the call of the Chairman of the Board, Chief Executive Officer, or
President, or at the request of two or more Directors. Any special meeting may
be held at such place and at such time as may be fixed in the call. Written or
oral notice shall be given to each Director not later than the day next
preceding the day on which the special meeting is to be held, which notice may
be waived in writing. The presence of a Director at any meeting of the Board of
Directors shall be deemed a waiver of notice thereof by such Director. Whenever
a quorum is not present, the Directors in attendance shall adjourn the special
meeting from day to day until a quorum is obtained. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.06. QUORUM. A majority of the Directors shall constitute a quorum at
any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as herein
defined, but at least one-third and not less than two of the authorized number
of Directors are present at a meeting of the Directors, business of the Bank may
be transacted and matters before the Board approved or disapproved by the
unanimous vote of the Directors present.
SECTION 2.07. COMPENSATION. Each member of the Board of Directors shall receive
such fees for attendance at Board and Board committee meetings and such fees for
service as a Director, irrespective of meeting attendance, as from time to time
are fixed by resolution of the Board; provided, however, that payment hereunder
shall not be made to a Director for meetings attended and/or Board service which
are not for the Bank's sole
15
<PAGE> 16
SECTION 2.02. VACANCIES. Directors of the Bank shall hold office for one year or
until their successors are elected and qualified. Any vacancy in the Board shall
be filled by appointment of the remaining Directors, and any Director so
appointed shall hold office until the next election.
SECTION 2.03. ORGANIZATION MEETING. The Directors elected by the shareholders
shall meet for organization of the new Board of Directors at the time and place
fixed by the presiding officer of the annual meeting. If at the time fixed for
such meeting there is no quorum present, the Directors in attendance may adjourn
from time to time until a quorum is obtained. A majority of the number of
Directors elected by the shareholders shall constitute a quorum for the
transaction of business.
SECTION 2.04. REGULAR MEETINGS. The regular meetings of the Board of Directors
shall be held at such date, time and place as the Board may previously
designate, or should the Board fail to so designate, at such date, time and
place as the Chairman of the Board, Chief Executive Officer, or President may
fix. Whenever a quorum is not present, the Directors in attendance shall adjourn
the meeting to a time not later than the date fixed by the By-Laws for the next
succeeding regular meeting of the Board. Members of the Board of Directors may
participate in such meetings through use of conference telephone or similar
communications equipment, so long as all members participating in such meetings
can hear one another.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the Board of Directors shall
be held at the call of the Chairman of the Board, Chief Executive Officer, or
President, or at the request of two or more Directors. Any special meeting may
be held at such place and at such time as may be fixed in the call. Written or
oral notice shall be given to each Director not later than the day next
preceding the day on which the special meeting is to be held, which notice may
be waived in writing. The presence of a Director at any meeting of the Board of
Directors shall be deemed a waiver of notice thereof by such Director. Whenever
a quorum is not present, the Directors in attendance shall adjourn the special
meeting from day to day until a quorum is obtained. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.06. QUORUM. A majority of the Directors shall constitute a quorum at
any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as herein
defined, but at least one-third and not less than two of the authorized number
of Directors are present at a meeting of the Directors, business of the Bank may
be transacted and matters before the Board approved or disapproved by the
unanimous vote of the Directors present.
SECTION 2.07. COMPENSATION. Each member of the Board of Directors shall receive
such fees for attendance at Board and Board committee meetings and such fees for
service as a Director, irrespective of meeting attendance, as from time to time
are fixed by resolution of the Board; provided, however, that payment hereunder
shall not be made to a Director for meetings attended and/or Board service which
are not for the Bank's sole benefit and which are concurrent and duplicative
15
<PAGE> 17
with meetings attended or Board service for an affiliate of the Bank for which
the Director receives payment; and provided further that fees hereunder shall
not be paid in the case of any Director in the regular employment of the Bank
or of one of its affiliates. Each member of the Board of Directors, whether or
not such Director is in the regular employment of the Bank or of one of its
affiliates, shall be reimbursed for travel expenses incident to attendance at
Board and Board committee meetings.
SECTION 2.08. EXECUTIVE COMMITTEE. There may be a standing committee of the
Board of Directors known as the Executive Committee which shall possess and
exercise, when the Board is not in session, all the powers of the Board that may
lawfully be delegated. The Executive Committee shall consist of at least three
Board members, one of whom shall be the Chairman of the Board, Chief Executive
Officer or the President. The other members of the Executive Committee shall be
appointed by the Chairman of the Board, the Chief Executive Officer, or the
President, with the approval of the Board, and who shall continue as members of
the Executive Committee until their successors are appointed, provided, however,
that any member of the Executive Committee may be removed by the Board upon a
majority vote thereof at any regular or special meeting of the Board. The
Chairman, Chief Executive Officer, or President shall fill any vacancy in the
Executive Committee by the appointment of another Director, subject to the
approval of the Board of Directors. The Executive Committee shall meet at the
call of the Chairman, Chief Executive Officer, or President or any two members
thereof at such time or times and place as may be designated. In the event of
the absence of any member or members of the Executive Committee, the presiding
member may appoint a member or members of the Board to fill the place or places
of such absent member or members to serve during such absence. Two members of
the Executive Committee shall constitute a quorum. When neither the Chairman of
the Board, the Chief Executive Officer, nor President are present, the Executive
Committee shall appoint a presiding officer. The Executive Committee shall
report its proceedings and the action taken by it to the Board of Directors.
SECTION 2.09. OTHER COMMITTEES. The Board of Directors may appoint such special
committees from time to time as are in its judgment necessary in the interest of
the Bank.
ARTICLE III
OFFICERS, MANAGEMENT STAFF AND EMPLOYEES
SECTION 3.01. OFFICERS AND MANAGEMENT STAFF.
(a) The executive officers of the Bank shall include a Chairman of the Board,
Chief Executive Officer, President, Chief Financial Officer, Secretary, Security
Officer, and may include one or more Senior Managing Directors or Managing
Directors. The Chairman of the Board, Chief Executive Officer, President, any
Senior Managing Director, any Managing Director, Chief Financial Officer,
Secretary, and Security Officer shall be elected by the Board. The Chairman of
the Board, Chief Executive Officer, and the President shall be elected by the
Board from their own number. Such officers as the Board shall elect from their
own number shall hold office from the date of their election as officers until
the organization meeting of the Board of Directors following the next annual
meeting of shareholders, provided, however, that such officers may be relieved
of their duties at any time by action of the Board of Directors, in which event
all the powers incident to their office shall immediately terminate. The
Chairman of the Board, Chief Executive Officer, or the President shall
preside at all meetings of shareholders and meetings of the Board of Directors.
16
<PAGE> 18
(b) The management staff of the Bank shall include officers elected by the
Board, officers appointed by the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and such other persons in the employment of the Bank
who, pursuant to authorization by a duly authorized officer of the Bank, perform
management functions and have management responsibilities. Any two or more
offices may be held by the same person except that no person shall hold the
office of Chairman of the Board, Chief Executive Officer and/or President and at
the same time also hold the office of Secretary.
(c) Except as provided in the case of the elected officers who are members of
the Board, all officers and employees, whether elected or appointed, shall hold
office at the pleasure of the Board. Except as otherwise limited by law or these
By-Laws, the Board assigns to the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and/or each of their respective designees the authority
to control all personnel, including elected and appointed officers and employees
of the Bank, to employ or direct the employment of such officers and employees
as he or she may deem necessary, including the fixing of salaries and the
dismissal of such officers and employees at pleasure, and to define and
prescribe the duties and responsibilities of all officers and employees of the
Bank, subject to such further limitations and directions as he or she may from
time to time deem appropriate.
(d) The Chairman of the Board, the Chief Executive Officer, the President, any
Senior Managing Director, any Managing Director, the Chief Financial Officer,
and any other officer of the Bank, to the extent that such officer is authorized
in writing by the Chairman of the Board, the Chief Executive Officer, the
President, any Senior Managing Director, any Managing Director, or the Chief
Financial Officer may appoint persons other than officers who are in employment
of the Bank to serve in management positions and in connection therewith, the
appointing officer may assign such title, salary, responsibilities and functions
as are deemed appropriate, provided, however, that nothing contained herein
shall be construed as placing any limitation on the authority of the Chairman of
the Board, the Chief Executive Officer, the President, any Senior Managing
Director, any Managing Director, or the Chief Financial Officer as provided in
this and other sections of these By-Laws.
(e) The Senior Managing Directors and the Managing Directors of the Bank shall
have general and active authority over the management of the business of the
Bank, shall see that all orders and resolutions of the Board of Directors are
carried into effect, and shall do or cause to be done all things necessary or
proper to carry on the business of the Bank in accordance with provisions of
applicable law and regulations. Each Senior Managing Director and Managing
Director shall perform all duties incident to his or her office and such other
and further duties, as may from time to time be required by the Chief Executive
Officer, the President, the Board of Directors, or the shareholders. The
specification of authority in these By-Laws wherever and to whomever granted
shall not be construed to limit in any manner the general powers of delegation
granted to a Senior Managing Director or a Managing Director in conducting the
business of the Bank. In the absence of a Senior Managing Director or a Managing
Director, such officer as is designated by the Senior Managing Director or the
Managing Director shall be vested with all the powers and perform all the duties
of the Senior Managing Director or the Managing Director as defined by these
By-Laws.
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<PAGE> 19
(f) Each Managing Director who is assigned oversight of one or more trust
service offices shall appoint a management committee known as the Investment
Management and Trust Committee consisting of the Managing Director of the trust
service offices and at least three other members who shall be capable and
experienced officers of the Bank appointed from time to time by the Managing
Director and who shall continue as members of the Investment Management and
Trust Committee until their successors are appointed, provided, however, that
any member of the Investment Management and Trust Committee may be removed by
the Managing Director as provided in this and other sections of these By-Laws.
The Managing Director shall fill any vacancy in the Investment Management and
Trust Committee by the appointment of another capable and experienced officer of
the Bank. Each Investment Management and Trust Committee shall meet at such
date, time and place as the Managing Director shall fix. In the event of the
absence of any member or members of the Investment Management and Trust
Committee, the Managing Director may, in his or her discretion, appoint another
officer of the Bank to fill the place or places of such absent member or members
to serve during such absence. A majority of each Investment Management and Trust
Committee shall constitute a quorum. Each Investment Management and Trust
Committee shall carry out the policies of the Bank, as adopted by the Board of
Directors, which shall be formulated and executed in accordance with State and
Federal Law, Regulations of the Comptroller of the Currency, and sound fiduciary
principles. In carrying out the policies of the Bank, each Investment Management
and Trust Committee is hereby authorized to establish management teams whose
duties and responsibilities shall be specifically set forth in the policies of
the Bank. Each such management team shall report such proceedings and the
actions taken thereby to the Investment Management and Trust Committee. Each
Managing Director shall then report such proceedings and the actions taken
thereby to the Board of Directors.
SECTION 3.02. POWERS AND DUTIES OF MANAGEMENT STAFF. Pursuant to the
fiduciary powers granted to this Bank under the provisions of Federal Law and
Regulations of the Comptroller of the Currency, the Chairman of the Board, the
Chief Executive Officer, the President, the Senior Managing Directors, the
Managing Directors, the Chief Financial Officer, and those officers so
designated and authorized by the Chairman of the Board, the Chief Executive
Officer, the President, the Senior Managing Directors, the Managing Directors,
or the Chief Financial Officer are authorized for and on behalf of the Bank, and
to the extent permitted by law, to make loans and discounts; to purchase or
acquire drafts, notes, stocks, bonds, and other securities for investment of
funds held by the Bank; to execute and purchase acceptances; to appoint, empower
and direct all necessary agents and attorneys; to sign and give any notice
required to be given; to demand payment and/or to declare due for any default
any debt or obligation due or payable to the Bank upon demand or authorized to
be declared due; to foreclose any mortgages; to exercise any option, privilege
or election to forfeit, terminate, extend or renew any lease; to authorize and
direct any proceedings for the collection of any money or for the enforcement of
any right or obligation; to adjust, settle and compromise all claims of every
kind and description in favor of or against the Bank, and to give receipts,
releases and discharges therefor; to borrow money and in connection therewith to
make, execute and deliver notes, bonds or other evidences of indebtedness; to
pledge or hypothecate any securities or any stocks, bonds, notes or any property
real or personal held or owned by the Bank, or to rediscount any notes or other
obligations held or owned by the Bank, whenever in his or her judgment it is
reasonably necessary for the operation of the Bank; and in furtherance of and in
addition to the powers hereinabove set forth to do all such acts and to take all
such proceedings as in his or her judgment are necessary and incidental to the
operation of the Bank.
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<PAGE> 20
SECTION 3.03. SECRETARY. The Secretary or such other officers as may be
designated by the Chief Executive Officer shall have supervision and control of
the records of the Bank and, subject to the direction of the Chief Executive
Officer, shall undertake other duties and functions usually performed by a
corporate secretary. Other officers may be designated by the Secretary as
Assistant Secretary to perform the duties of the Secretary.
SECTION 3.04. EXECUTION OF DOCUMENTS. Any member of the Bank's management staff
or any employee of the Bank designated as an officer on the Bank's payroll
system is hereby authorized for and on behalf of the Bank to sell, assign,
lease, mortgage, transfer, deliver and convey any real or personal property,
including shares of stock, bonds, notes, certificates of indebtedness (including
the assignment and redemption of registered United States obligations) and all
other forms of intangible property now or hereafter owned by or standing in the
name of the Bank, or its nominee, or held by the Bank as collateral security, or
standing in the name of the Bank, or its nominee, in any fiduciary capacity or
in the name of any principal for whom this Bank may now or hereafter be acting
under a power of attorney or as agent, and to execute and deliver such partial
releases from any discharges or assignments of mortgages and assignments or
surrender of insurance policies, deeds, contracts, assignments or other papers
or documents as may be appropriate in the circumstances now or hereafter held by
the Bank in its own name, in a fiduciary capacity, or owned by any principal for
whom this Bank may now or hereafter be acting under a power of attorney or as
agent; provided, however, that, when necessary, the signature of any such person
shall be attested or witnessed in each case by another officer of the Bank.
Any member of the Bank's management staff or any employee of the Bank designated
as an officer on the Bank's payroll system is hereby authorized for and on
behalf of the Bank to execute any indemnity and fidelity bonds, trust
agreements, proxies or other papers or documents of like or different character
necessary, desirable or incidental to the appointment of the Bank in any
fiduciary capacity, the conduct of its business in any fiduciary capacity, or
the conduct of its other banking business; to sign and issue checks, drafts,
orders for the payment of money and certificates of deposit; to sign and endorse
bills of exchange, to sign and countersign foreign and domestic letters of
credit, to receive and receipt for payments of principal, interest, dividends,
rents, fees and payments of every kind and description paid to the Bank, to sign
receipts for money or other property acquired by or entrusted to the Bank, to
guarantee the genuineness of signatures on assignments of stocks, bonds or other
securities, to sign certifications of checks, to endorse and deliver checks,
drafts, warrants, bills, notes, certificates of deposit and acceptances in all
business transactions of the Bank; also to foreclose any mortgage, to execute
and deliver receipts for any money or property; also to sign stock certificates
for and on behalf of this Bank as transfer agent or registrar, and to
authenticate bonds, debentures, land or lease trust certificates or other forms
of security issued pursuant to any indenture under which this Bank now or
hereafter is acting as trustee or in any other fiduciary capacity; to execute
and deliver various forms of documents or agreements necessary to effectuate
certain investment strategies for various fiduciary or custody customers of the
Bank, including, without limitation, exchange funds, options, both listed and
over-the-counter, commodities trading, futures trading, hedge funds, limited
partnerships, venture capital funds, swap or collar transactions and other
similar investment vehicles for which the Bank now or in the future may deem
appropriate for investment of fiduciary customers or in which non-fiduciary
customers may direct investment by the Bank.
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<PAGE> 21
Without limitation on the foregoing, the Chief Executive Officer, Chairman of
the Board, or President of the Bank shall have the authority from time to time
to appoint officers of the Bank as Vice President for the sole purpose of
executing releases or other documents incidental to the conduct of the Bank's
business in any fiduciary capacity where required by state law or the governing
document. In addition, other persons in the employment of the Bank or its
affiliates may be authorized by the Chief Executive Officer, Chairman of the
Board, President, Senior Managing Directors, Managing Directors, or Chief
Financial Officer to perform acts and to execute the documents described in the
paragraph above, subject, however, to such limitations and conditions as are
contained in the authorization given to such person.
SECTION 3.05. PERFORMANCE BOND. All officers and employees of the Bank
shall be bonded for the honest and faithful performance of their duties for such
amount as may be prescribed by the Board of Directors.
ARTICLE IV
STOCKS AND STOCK CERTIFICATES
SECTION 4.01. STOCK CERTIFICATES. The shares of stock of the Bank shall be
evidenced by certificates which shall bear the signature of the Chairman of the
Board, the Chief Executive Officer, or the President (which signature may be
engraved, printed or impressed), and shall be signed manually by the Secretary,
or any other officer appointed by the Chief Executive Officer for that purpose.
In case any such officer who has signed or whose facsimile signature has been
placed upon such certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Bank with the same effect as if
such officer had not ceased to be such at the time of its issue. Each such
certificate shall bear the corporate seal of the Bank, shall recite on its face
that stock represented thereby is transferable only upon the books of the Bank
when properly endorsed and shall recite such other information as is required by
law and deemed appropriate by the Board. The corporate seal may be facsimile
engraved or printed.
SECTION 4.02. STOCK ISSUE AND TRANSFER. The shares of stock of the Bank
shall be transferable only upon the stock transfer books of the Bank and, except
as hereinafter provided, no transfer shall be made or new certificates issued
except upon the surrender for cancellation of the certificate or certificates
previously issued therefor. In the case of the loss, theft, or destruction of
any certificate, a new certificate may be issued in place of such certificate
upon the furnishing of an affidavit setting forth the circumstances of such
loss, theft, or destruction and indemnity satisfactory to the Chairman of the
Board, the Chief Executive Officer, or the President. The Board of Directors or
the Chairman of the Board, Chief Executive Officer, or the President may
authorize the issuance of a new certificate therefor without the furnishing of
indemnity. Stock transfer books, in which all transfers of stock shall be
recorded, shall be provided. The stock transfer books may be closed for a
reasonable period and under such conditions as the Board of Directors may at
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<PAGE> 22
any time determine, for any meeting of shareholders, the payment of dividends or
any other lawful purpose. In lieu of closing the transfer books, the Board of
Directors may, in its discretion, fix a record date and hour constituting a
reasonable period prior to the day designated for the holding of any meeting of
the shareholders or the day appointed for the payment of any dividend, or for
any other purpose at the time as of which shareholders entitled to notice of and
to vote at any such meeting or to receive such dividend or to be treated as
shareholders for such other purpose shall be determined, and only shareholders
of record at such time shall be entitled to notice of or to vote at such meeting
or to receive such dividends or to be treated as shareholders for such other
purpose.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.01. SEAL. The seal of the Bank shall be circular in form with "SEAL"
in the center, and the name "BANK ONE TRUST COMPANY, NA" located clockwise
around the upper half of the seal.
SECTION 5.02. MINUTE BOOK. The organization papers of this Bank, the Articles of
Association, the returns of judges of elections, the By-Laws and any amendments
thereto, the proceedings of all regular and special meetings of the shareholders
and of the Board of Directors, and reports of the committees of the Board of
Directors shall be recorded in the minute books of the Bank. The minutes of each
such meeting shall be signed by the presiding officer and attested by the
secretary of the meeting.
SECTION 5.03. CORPORATE POWERS. The corporate existence of the Bank shall
continue until terminated in accordance with the laws of the United States. The
purpose of the Bank shall be to carry on the general business of a commercial
bank trust department and to engage in such activities as are necessary,
incident, or related to such business. The Articles of Association of the Bank
shall not be amended, or any other provision added elsewhere in the Articles
expanding the powers of the Bank, without the prior approval of the Comptroller
of the Currency.
SECTION 5.04. AMENDMENT OF BY-LAWS. The By-Laws may be amended, altered or
repealed, at any regular or special meeting of the Board of Directors, by a vote
of a majority of the Directors.
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As amended April 24, 1991 Section 3.01 (Officers and Management Staff)
Section 3.02 (Chief Executive Officer)
Section 3.03 (Powers and Duties of Officers
and Management Staff)
Section 3.05 (Execution of Documents)
As amended January 27, 1995 Section 2.04 (Regular Meetings)
Section 2.05 (Special Meetings)
Section 3.01(f) (Officers and Management
Staff)
Section 3.03(e) (Powers and Duties of
Officers and Management Staff)
Section 5.01 (Seal)
Amended and restated in its entirety effective May 1, 1996
As amended August 1, 1996 Section 2.09 (Trust Examining Committee)
Section 2.10 (Other Committees)
As amended October 16, 1997 Section 3.01 (Officers and Management Staff)
Section 3.02 (Powers and Duties of Officers
and Management Staff)
Section 3.04 (Execution of Documents)
As amended January 1, 1998 Section 1.01 (Annual Meeting)
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EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
September 13, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an amended and restated trust agreement
between ONB Capital Trust IV and Bank One Trust Company, NA, as Trustee, the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
BANK ONE TRUST COMPANY, NA
By: /s/ Sandra L. Caruba
-----------------------------------------
Sandra L. Caruba
Vice President
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EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/98 ST-BK: 7-1630 FFIEC 032
Address: 100 Broad Street Page RC-1
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C300
RCON BIL MIL THOU ------
---- ------------
ASSETS
<S> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCON
----
a. Noninterest-bearing balances and currency and coin(1) 0081 159,911 1.a
b. Interest-bearing balances(2)............................................ 0071 16,874 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)............... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)............ 1773 7,403 2.b
3. Federal funds sold and securities purchased under agreements to
resell 1350 576,473 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCON
----
RC-C)...................................................................... 2122 32,603 4.a
b. LESS: Allowance for loan and lease losses............................... 3123 10 4.b
c. LESS: Allocated transfer risk reserve................................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCON
----
reserve (item 4.a minus 4.b and 4.c).................................... 2125 32,593 4.d
5. Trading assets (from Schedule RD-D)........................................ 3545 0 5.
6. Premises and fixed assets (including capitalized leases)................... 2145 18,685 6.
7. Other real estate owned (from Schedule RC-M)............................... 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)............................................. 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding 2155 0 9.
10. Intangible assets (from Schedule RC-M)..................................... 2143 31,392 10.
11. Other assets (from Schedule RC-F).......................................... 2160 127,322 11.
12. Total assets (sum of items 1 through 11)................................... 2170 970,653 12.
</TABLE>
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(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 26
<TABLE>
<S> <C> <C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 032
Address: 100 East Broad Street Page RC-2
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
---------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1).................................. 2200 802,791 13.a
(1) Noninterest-bearing(1)................................... 6631 727,720 13.a1
(2) Interest-bearing......................................... 6636 75,071 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)...........................
(1) Noninterest bearing......................................
(2) Interest-bearing.........................................
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 0 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 0 15.a
b. Trading Liabilities(from Schedule RC-D)...................... RCFD 3548 0 15.b
16. Other borrowed money: RCON
----
a. With original maturity of one year or less................... 2332 0 16.a
b. With original maturity of more than one year................ A547 0 16.b
c. With original maturity of more than three years ............. A548 0 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding......... 2920 0 18.
19. Subordinated notes and debentures............................... 3200 0 19.
20. Other liabilities (from Schedule RC-G).......................... 2930 64,642 20.
21. Total liabilities (sum of items 13 through 20).................. 2948 867,433 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus................... 3838 0 23.
24. Common stock.................................................... 3230 800 24.
25. Surplus (exclude all surplus related to preferred stock) 3839 35,157 25.
26. a. Undivided profits and capital reserves....................... 3632 67,207 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities................................................... 8434 5 26.b
27. Cumulative foreign currency translation adjustments............. 3284 0 27.
28. Total equity capital (sum of items 23 through 27)............... 3210 103,220 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)........................... 3300 970,653 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below
that best describes the most comprehensive level of auditing work
performed for the bank by independent external auditors as of Number
any date during 1996.................................................... RCFD 6724..........N\A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4.= Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
