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Exhibit 4.1
[FORM OF INDENTURE]
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OLD NATIONAL BANCORP
to
BANK ONE TRUST COMPANY, NA,
as Trustee
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INDENTURE
Dated as of , 1999
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TABLE OF CONTENTS
PAGE
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
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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
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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
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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
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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
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
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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 000 Xxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxx 00000, 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.
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"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 Xxx Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000.
"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.
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"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.
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"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.
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"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).
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"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.
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"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.
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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.
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(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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(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.
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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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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 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) 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.
-----------
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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
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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
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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
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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:
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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.]
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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
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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
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Name:
Title:
Attest:
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Name:
Title:
BANK ONE TRUST COMPANY, NA,
As Trustee
By
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Name:
Title:
Attest:
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Name:
Title:
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