Exhibit 4.4
INTEREST CALCULATION
AGENCY AGREEMENT
BETWEEN
OLD NATIONAL BANCORP
AND
BANK ONE TRUST COMPANY, N.A.
DATED AS OF ___________________, 1997
OLD NATIONAL BANCORP (the "Issuer"), proposes to issue and sell its
Floating Rate Medium-Term Notes Due Nine Months or More From Date of Issue
(the "Notes") under and pursuant to the terms of an Indenture (the
"Indenture") dated as of ______________________, 1997 between the Issuer and
Bank One Trust Company, N.A., as Trustee.
For the purpose of providing for an agent of the Issuer to calculate
the base rate applicable to the Notes, determined by reference to the CD Rate,
the CMT Rate, the Commercial Paper Rate, the Eleventh District Cost of Funds
Rate, the Federal Funds Rate, LIBOR, the Prime Rate or the Treasury Rate
(each, a "Base Rate") as specified and described in the Notes, a specimen copy
of which is attached hereto as Exhibit A, the Issuer and Bank One Trust
Company, N.A. hereby agree as follows:
SECTION 1. Appointment of Calculation Agent. The Issuer
hereby appoints Bank One Trust Company, N.A. as Calculation Agent (in such
capacity, the "Calculation Agent") of the Issuer with respect to the Notes,
and the Calculation Agent hereby accepts its obligations as set forth in this
Agreement upon the terms and conditions set forth herein.
SECTION 2. Calculation of Base Rates. As soon as reasonably
practical on or after each interest determination date, but in no event later
than the applicable interest calculation date, for the Notes, the Calculation
Agent shall determine the applicable Base Rate and notify the Issuer of such
Base Rate. Upon the written request of the registered holder of any Note, the
Calculation Agent will provide the Base Rate then in effect with respect to
such Note and, if determined, the applicable Base Rate that will become
effective with respect to such Note as of the next interest reset date.
SECTION 3. Fees and Expenses. The Calculation Agent shall be
entitled to such compensation for its services under this Agreement as the
Calculation Agent and the Issuer may agree, and the Issuer shall pay such
compensation and shall reimburse the Calculation Agent for all reasonable
expenses, disbursements and advances incurred or made by the Calculation Agent
in connection with the services rendered by it under this Agreement.
SECTION 4. Rights and Liabilities of Calculation Agent. The
Calculation Agent shall incur no liability for, or in respect of, any action
taken, omitted to be taken or suffered by it in reliance upon any Note,
certificate, affidavit, instruction, notice, request, direction, order,
statement or other paper, document or communication reasonably believed by it
to be genuine. Any certificate, affidavit, instruction, notice, request,
direction, order, statement or other communication from the Issuer made or
given by it and sent, delivered or directed to the Calculation Agent under,
pursuant to or as permitted by any provision of this Agreement shall be
sufficient for purposes of this Agreement if such communication is in writing
and signed by any officer of the Issuer. The Calculation Agent may consult
with counsel satisfactory to it and the opinion of such counsel shall
constitute a full and compete authorization and protection of the Calculation
Agent with respect to any action taken, omitted to be taken or suffered by it
hereunder in good faith, in a commercially reasonable manner and in accordance
with and in reliance upon the opinion of such counsel. In acting under this
Agreement, the Calculation Agent (in its capacity as such) does not assume any
obligation to, or any relationship of agency or trust for or with, the holders
of the Notes.
SECTION 5. Right of Calculation Agent to Own Notes. The
Calculation Agent and its officers, employees, agents and shareholders may
become owners of, or acquire any interests in, Notes, with the same rights as
if the Calculation Agent were not the Calculation Agent hereunder, and may
engage in, or have an interest in, any financial or other transaction with the
Issuer as if the Calculation Agent were not the Calculation Agent hereunder.
SECTION 6. Duties of Calculation Agent. The Calculation Agent
shall be obligated only to perform such duties as are specifically set forth
herein and no other duties or obligations on the part of the Calculation
Agent, in its capacity as such, shall be implied by this Agreement.
SECTION 7. Termination, Resignation or Removal of Calculation
Agent. The Calculation Agent may at any time terminate this Agreement by
giving no less than 90 days' prior written notice to the Issuer, unless the
Issuer consents in writing to a shorter time. Upon receipt of notice of
termination by the Calculation Agent, the Issuer agrees promptly to appoint a
successor Calculation Agent. The Issuer may, in its discretion, terminate
this Agreement at any time by giving written notice to the Calculation Agent
of such termination and specifying the date when such termination shall become
effective; provided, however, that no termination by the Calculation Agent or
by the Issuer shall become effective prior to the date of the appointment by
the Issuer, as provided in Section 8 hereof, of a successor Calculation Agent
and the acceptance of such appointment by such successor Calculation Agent.
Upon termination by either party pursuant to the provisions of this Section,
the Calculation Agent shall be entitled to the payment of any compensation
owed to it by the Issuer hereunder, as provided by Section 3 hereof, and the
provisions of Section 9 shall remain in effect following such termination.
SECTION 8. Appointment of Successor Calculation Agent. Any
successor Calculation Agent appointed by the Issuer following termination of
this Agreement pursuant to the provisions of Section 7 hereof shall execute
and deliver to the Calculation Agent and to the Issuer an instrument accepting
such appointment, and thereupon such successor Calculation Agent shall,
without further act or instrument, become vested with all the rights,
immunities, duties and obligations of the
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Calculation Agent, with like effect as if originally named as Calculation
Agent hereunder, and the Calculation Agent shall thereupon be obligated to
transfer and deliver, and such successor Calculation Agent shall be entitled
to receive and accept, copies of any available records maintained by the
Calculation Agent in connection with the performance of its obligations
hereunder.
SECTION 9. Indemnification. The Issuer shall indemnify and
hold harmless the Calculation Agent, and its officers and employees, from and
against all actions, claims, damages, liabilities, losses and expenses
(including reasonable attorneys' fees and expenses) relating to or arising out
of any actions or omissions of the Calculation Agent, or its officers and
employees, in any capacity hereunder, except for any actions, claims, damages,
liabilities, losses and expenses caused by the negligence or willful
misconduct of the Calculation Agent, or any of its officers, employees or
agents.
SECTION 10. Merger, Consolidation or Sale of Business by
Calculation Agent. Any corporation or entity into which the Calculation Agent
may be merged, converted or consolidated, or any corporation or entity
resulting from any merger, conversion or consolidation to which the
Calculation Agent may be a party, or any corporation or entity to which the
Calculation Agent may sell or otherwise transfer all or substantially all of
its corporate trust business, shall, to the extent permitted by applicable
law, become the Calculation Agent under this Agreement without the execution
of any paper or any further act by the parties hereto. The Calculation Agent
will give prompt written notice to the Issuer and the Trustee under the
Indenture of any such merger, conversion or consolidation.
SECTION 11. Notices. All notices, requests and other
communications given hereunder shall be in writing (which shall include
facsimile communication) and shall be deemed to have been duly given if (a)
delivered by hand, (b) sent by certified United States Mail, return receipt
requested, first class postage pre-paid, (c) delivered by overnight receipted
delivery service, or (d) sent by facsimile communication if confirmed
immediately thereafter by also mailing a copy of such notice, request or other
communication by certified United States Mail, return receipt requested, first
class postage pre-paid, as follows:
To the Issuer:
Old National Bancorp
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Corporate Secretary and General Counsel
Facsimile: (000) 000-0000
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To the Calculation Agent: Bank One Trust Company, N.A.
____________________________
____________________________
____________________________
Attention:__________________
Facsimile:__________________
or such substituted address or person as any party has given to the other in
writing in accordance with the foregoing.
All such notices, requests and other communications shall be
effective (a) if delivered by hand, when delivered, (b) if mailed in the
manner provided herein, three (3) business days after deposit with the United
States Postal Service, (c) if delivered by overnight express delivery service,
on the next business day after deposit with such service, and (d) if by
facsimile communication, on the next business day if also confirmed by mail in
the manner provided herein.
SECTION 12. Counterparts. This Agreement may be executed in
counterparts which, taken together, shall constitute a single document.
SECTION 13. Amendments. This Agreement may be amended only be
means of a written instrument duly executed and delivered by or on behalf of
the Issuer and the Calculation Agent.
SECTION 14. Benefit of Agreement. Except as provided herein,
this Agreement is solely for the benefit of the parties hereto and their
successors and assigns and no other person shall acquire or have any rights
under or by virtue hereof.
SECTION 15. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of ________________.
SECTION 16. Severability. In case any one or more of the provisions
contained herein shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, but this Agreement
shall be construed as if such invalid, illegal or unenforceable provision or
provisions had never been contained herein.
SECTION 17. Entire Agreement. This Agreement supersedes all other
prior understandings, commitments and agreements, whether oral or written,
between the parties hereto relating to the matters contemplated hereby and
constitutes the entire agreement between the parties hereto relating to the
subject matter hereof.
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SECTION 18. Headings; Construction. The headings contained in this
Agreement have been inserted solely for ease of reference and should not be
construed in the interpretation or construction of this Agreement. The rule
of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation or construction
of this Agreement.
IN WITNESS WHEREOF, this Agreement has been entered into as of the
day and year first above written.
OLD NATIONAL BANCORP
By:___________________________
Name:_________________________
Title:________________________
BANK ONE TRUST COMPANY, N.A.
By:___________________________
Name:_________________________
Title:________________________
SS-115350-1
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