FIRST MERCHANTS CAPITAL TRUST IV TRUST AGREEMENT
Exhibit 4.19
This TRUST AGREEMENT, dated as of March 18, 2009 (this “Trust Agreement”), among (i) First
Merchants Corporation, an Indiana corporation (the “Depositor”), (ii) U.S. Bank Trust National
Association (“USBTNA”), a national banking association, as trustee, and (iii) Xxxxxxx X. Xxxxxx,
Xxxx X. Xxxxxxxx and Xxxx X. Xxxxxxxx, each an individual, as trustees (each of such trustees in
(ii) and (iii) a “Trustee” and collectively, the “Trustees”). The Depositor and the Trustees
hereby agree as follows:
1. The trust created hereby (the “Trust”) shall be known as “First Merchants Capital Trust IV”
in which name the Trustees, or the Depositor to the extent provided herein, may engage in the
transactions contemplated hereby, make and execute contracts, and xxx and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the Trustees the sum of
$10.00 and appoints the Trustees as trustees of the Trust. The Trustees hereby accept such
appointment and acknowledge receipt of such amount in trust from the Depositor, which amount shall
constitute the initial trust estate. The Trustees hereby declare that they 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 statutory trust under the Delaware Statutory Trust Act, Chapter 38 of
Title 12 of the Delaware Code, 12 Del. C. § 3801, et seq. (the “Statutory
Trust Act”), and that this document constitutes the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of trust with the
Delaware Secretary of State in accordance with the provisions of the Statutory Trust Act.
3. The Depositor and the Trustees will enter into an amended and restated Trust Agreement,
satisfactory to each such party and substantially in the form included as an exhibit to the 1933
Act Registration Statement (as defined below), to provide for the contemplated operation of the
Trust created hereby and the issuance of the Preferred securities and Common securities referred to
therein. Prior to the execution and delivery of such amended and restated Trust Agreement, the
Trustees shall not have any duty or obligation hereunder or with respect to the trust estate,
except as otherwise required by applicable law or as may be necessary to obtain prior to such
execution and delivery of any licenses, consents or approvals required by applicable law or
otherwise.
4. The Depositor and the Trustees hereby authorize and direct the Depositor, as the sponsor 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,
(the “1933 Act”) of the Preferred Securities of the Trust (including any registration statement for
the same offering that is to be effective upon filing pursuant to Rule 462(b) under the 1933 Act),
and (b) a Registration Statement on Form 8-A (the “1934 Act Registration Statement”) (including all
pre-effective and post-effective thereto)
relating to the registration of the Preferred Securities of the Trust under the Securities
Exchange Act of 1934, as amended; (ii) to file with the New York Stock Exchange, Inc., The Nasdaq
National Market 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 the event that any filing referred to in
clauses (i), (ii) and (iii) above is required by the rules and regulations of the Commission, an
Exchange or state securities or blue sky laws, to be executed on behalf of the Trust by one or more
of the Trustees, each of the Trustees, in its, her or his capacity as a Trustee of the Trust, is
hereby authorized and, to the extent so required, directed to join in any such filing and to
execute on behalf of the Trust any and all of the foregoing, it being understood that USBTNA in its
capacity as a Trustee of the Trust shall not be required to join in any such filing or execute on
behalf of the Trust any such document unless required by the rules and regulations of the
Commission, the Exchange or state securities or blue sky laws. In connection with the filings
referred to above, the Depositor and Xxxxxxx X. Xxxxxx, Xxxx X. Xxxxxxxx and Xxxx X. Xxxxxxxx, each
as Trustees and not in their individual capacities, hereby constitute and appoint Xxxxxxx X.
Xxxxxx, Xxxx X. Xxxxxxxx and Xxxx X. Xxxxxxxx, 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 such Trustee or in the Depositor’s or such Trustees’ name, place and stead, in any and all
capacities, to sign 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 the 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
or such Trustee 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 four 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 to the extent
required by the Statutory 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 otherwise meets the requirements of applicable Delaware law.
Subject to the foregoing, the Depositor is entitled to appoint or remove without cause any Trustee
at any time. The trustees may resign upon thirty days’ prior notice to the Depositor.
2
7. This Trust Agreement shall be governed by, and construed in accordance with, the laws of
the State of Delaware (without regard to conflict of laws of principles).
8. (a) The Trustees (the “Fiduciary Indemnified Persons”) shall not be liable, responsible
or accountable in damages or otherwise to the Trust, the Depositor, the Trustees or any holder of
the Trust’s securities (the Trust, the Depositor and any holder of the Trust’s 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 willful misconduct 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 believe 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 the
Trust’s 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.
[SIGNATURES ON NEXT PAGE]
3
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be duly executed as
of the day and year first above written.
| FIRST MERCHANTS CORPORATION, as Depositor |
||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxx | |||
| Title: | Senior Vice President & Chief Accounting Officer | |||
| U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Assistant Vice President | |||
| /s/ Xxxxxxx X. Xxxxxx | , as Trustee | |||
| Xxxxxxx X. Xxxxxx | ||||
| /s/ Xxxx X. Xxxxxxxx | , as Trustee | |||
| Xxxx X. Xxxxxxxx | ||||
| /s/ Xxxx X. Xxxxxxxx | , as Trustee | |||
| Xxxx X. Xxxxxxxx | ||||
4
EXHIBIT A
CERTIFICATE OF TRUST
OF
This Certificate of Trust of First Merchants Capital Trust IV (the “Trust”) is being duly
executed and filed on behalf of the Trust by the undersigned, as trustees, to form a statutory
trust under the Delaware Statutory Trust Act (12 Del. C. § 3801 et seq.)
(the “Act”).
| 1. | Name. The name of the statutory trust formed by this Certificate of Trust is “First Merchants Capital Trust IV”. | ||
| 2. | Trustee. The name and business address of the trustee of the Trust in the State of Delaware are U.S. Bank Trust National Association, 000 Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Group. | ||
| 3. | Effective Date. This Certificate of Trust shall be effective upon filing. |
IN WITNESS WHEREOF, the undersigned have duly executed this Certificate of Trust in accordance
with Section 3811(a)(1) of the Act.
| U.S. BANK TRUST NATIONAL ASSOCIATION, not in its individual capacity but solely as Trustee |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Assistant Vice President | |||
| /s/ Xxxxxxx X. Xxxxxx | , | |||
| Xxxxxxx X. Xxxxxx, not in his individual capacity | ||||
| but solely as Trustee | ||||
| /s/ Xxxx X. Xxxxxxxx | , | |||
| Xxxx X. Xxxxxxxx, not in her individual capacity | ||||
| but solely as Trustee | ||||
| /s/ Xxxx X. Xxxxxxxx | , | |||
| Xxxx X. Xxxxxxxx, not in his individual capacity | ||||
| but solely as Trustee | ||||
FIRST MERCHANTS CAPITAL TRUST V
TRUST AGREEMENT
TRUST AGREEMENT
This TRUST AGREEMENT, dated as of March 18, 2009 (this “Trust Agreement”), among (i) First
Merchants Corporation, an Indiana corporation (the “Depositor”), (ii) U.S. Bank Trust National
Association (“USBTNA”), a national banking association, as trustee, and (iii) Xxxxxxx X. Xxxxxx,
Xxxx X. Xxxxxxxx and Xxxx X. Xxxxxxxx, each an individual, as trustees (each of such trustees in
(ii) and (iii) a “Trustee” and collectively, the “Trustees”). The Depositor and the Trustees
hereby agree as follows:
11. The trust created hereby (the “Trust”) shall be known as “First Merchants Capital Trust V”
in which name the Trustees, or the Depositor to the extent provided herein, may engage in the
transactions contemplated hereby, make and execute contracts, and xxx and be sued.
12. The Depositor hereby assigns, transfers, conveys and sets over to the Trustees the sum of
$10.00 and appoints the Trustees as trustees of the Trust. The Trustees hereby accept such
appointment and acknowledge receipt of such amount in trust from the Depositor, which amount shall
constitute the initial trust estate. The Trustees hereby declare that they 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 statutory trust under the Delaware Statutory Trust Act, Chapter 38 of
Title 12 of the Delaware Code, 12 Del. C. § 3801, et seq. (the “Statutory
Trust Act”), and that this document constitutes the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of trust with the
Delaware Secretary of State in accordance with the provisions of the Statutory Trust Act.
13. The Depositor and the Trustees will enter into an amended and restated Trust Agreement,
satisfactory to each such party and substantially in the form included as an exhibit to the 1933
Act Registration Statement (as defined below), to provide for the contemplated operation of the
Trust created hereby and the issuance of the Preferred securities and Common securities referred to
therein. Prior to the execution and delivery of such amended and restated Trust Agreement, the
Trustees shall not have any duty or obligation hereunder or with respect to the trust estate,
except as otherwise required by applicable law or as may be necessary to obtain prior to such
execution and delivery of any licenses, consents or approvals required by applicable law or
otherwise.
14. The Depositor and the Trustees hereby authorize and direct the Depositor, as the sponsor
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, (the “1933 Act”) of the Preferred Securities of the Trust (including any registration
statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under
the 1933 Act), and (b) a Registration Statement on Form 8-A (the “1934 Act Registration Statement”)
(including all pre-effective and post-effective thereto) relating to the registration of the
Preferred Securities of the Trust under the Securities Exchange Act of 1934, as amended; (ii) to
file with the New York Stock Exchange, Inc., The Nasdaq National Market 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 the event that any filing referred to in
clauses (i), (ii) and (iii) above is required by the rules and regulations of the Commission, an
Exchange or state securities or blue sky laws, to be executed on behalf of the Trust by one or more
of the Trustees, each of the Trustees, in its, her or his capacity as a Trustee of the Trust, is
hereby authorized and, to the extent so required, directed to join in any such filing and to
execute on behalf of the Trust any and all of the foregoing, it being understood that USBTNA in its
capacity as a Trustee of the Trust shall not be required to join in any such filing or execute on
behalf of the Trust any such document unless required by the rules and regulations of the
Commission, the Exchange or state securities or blue sky laws. In connection with the filings
referred to above, the Depositor and Xxxxxxx X. Xxxxxx, Xxxx X. Xxxxxxxx and Xxxx X. Xxxxxxxx, each
as Trustees and not in their individual capacities, hereby constitute and appoint Xxxxxxx X.
Xxxxxx, Xxxx X. Xxxxxxxx and Xxxx X. Xxxxxxxx, 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 such Trustee or in the Depositor’s or such Trustees’ name, place and stead, in any and all
capacities, to sign 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 the 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
or such Trustee 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.
15. This Trust Agreement may be executed in one or more counterparts.
16. The number of Trustees initially shall be four 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 to the extent
required by the Statutory 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 otherwise meets the requirements of applicable Delaware law.
Subject to the foregoing, the Depositor is entitled to appoint or remove without cause any Trustee
at any time. The trustees may resign upon thirty days’ prior notice to the Depositor.
17. This Trust Agreement shall be governed by, and construed in accordance with, the laws of
the State of Delaware (without regard to conflict of laws of principles).
4
18. (a) The Trustees (the “Fiduciary Indemnified Persons”) shall not be liable, responsible
or accountable in damages or otherwise to the Trust, the Depositor, the Trustees or any holder of
the Trust’s securities (the Trust, the Depositor and any holder of the Trust’s 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 willful misconduct 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 believe 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 the
Trust’s securities might properly be paid.
19. 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.
20. The provisions of Section 9 shall survive the termination of this Trust Agreement or the
earlier resignation or removal of the Fiduciary Indemnified Persons.
[SIGNATURES ON NEXT 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.
| FIRST MERCHANTS CORPORATION, as Depositor |
||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxx | |||
| Title: | Senior Vice President & Chief Accounting Officer | |||
| U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Assistant Vice President | |||
| /s/ Xxxxxxx X. Xxxxxx | , as Trustee | |||
| Xxxxxxx X. Xxxxxx | ||||
| /s/ Xxxx X. Xxxxxxxx | , as Trustee | |||
| Xxxx X. Xxxxxxxx | ||||
| /s/ Xxxx X. Xxxxxxxx | , as Trustee | |||
| Xxxx X. Xxxxxxxx | ||||
6
EXHIBIT A
CERTIFICATE OF TRUST
OF
FIRST MERCHANTS CAPITAL TRUST V
This Certificate of Trust of First Merchants Capital Trust V (the “Trust”) is being duly
executed and filed on behalf of the Trust by the undersigned, as trustees, to form a statutory
trust under the Delaware Statutory Trust Act (12 Del. C. § 3801 et seq.)
(the “Act”).
| 4. | Name. The name of the statutory trust formed by this Certificate of Trust is “First Merchants Capital Trust V”. | ||
| 5. | Trustee. The name and business address of the trustee of the Trust in the State of Delaware are U.S. Bank Trust National Association, 000 Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Group. | ||
| 6. | Effective Date. This Certificate of Trust shall be effective upon filing. |
IN WITNESS WHEREOF, the undersigned have duly executed this Certificate of Trust in accordance
with Section 3811(a)(1) of the Act.
| U.S. BANK TRUST NATIONAL ASSOCIATION, not in its individual capacity but solely as Trustee |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Assistant Vice President | |||
| /s/ Xxxxxxx X. Xxxxxx | , | |||
| Xxxxxxx X. Xxxxxx, not in his individual capacity | ||||
| but solely as Trustee | ||||
| /s/ Xxxx X. Xxxxxxxx | , | |||
| Xxxx X. Xxxxxxxx, not in her individual capacity | ||||
| but solely as Trustee | ||||
| /s/ Xxxx X. Xxxxxxxx | , | |||
| Xxxx X. Xxxxxxxx, not in his individual capacity | ||||
| but solely as Trustee | ||||
