-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WVQz4FLXCKfzWpftXRYKY5pWLtvvPO9XzpnpqFpe/rldvnFcDAF5FOB7xRjzX16j 6z9q51IRzTiqVp2WUSKafg== 0000926274-02-000209.txt : 20020416 0000926274-02-000209.hdr.sgml : 20020416 ACCESSION NUMBER: 0000926274-02-000209 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20020405 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20020411 FILER: COMPANY DATA: COMPANY CONFORMED NAME: OLD NATIONAL BANCORP /IN/ CENTRAL INDEX KEY: 0000707179 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 351539838 STATE OF INCORPORATION: IN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-15817 FILM NUMBER: 02608195 BUSINESS ADDRESS: STREET 1: 420 MAIN ST CITY: EVANSVILLE STATE: IN ZIP: 47708 BUSINESS PHONE: 8124641434 MAIL ADDRESS: STREET 1: 420 MAIN ST CITY: EVANSVILLE STATE: IN ZIP: 47708 FORMER COMPANY: FORMER CONFORMED NAME: O DATE OF NAME CHANGE: 19950822 8-K 1 onb-8k.txt SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): April 5, 2002 OLD NATIONAL BANCORP ------------------------------------------------------ (Exact name of Registrant as specified in its charter) Indiana 001-15817 35-1539838 - ---------------------------- ------------------------ ------------------- (State or other jurisdiction (Commission File Number) (IRS Employer of incorporation) Identification No.) 420 Main Street, Evansville, IN 47708 - ---------------------------------------- ----- (Address of Principal Executive Offices) (Zip Code) (812) 464-1434 ---------------------------------------------------- (Registrant's telephone number, including area code) Item 5. Other Events On April 5, 2002, Old National Bancorp ("Old National") executed an Underwriting Agreement, the form of which is attached hereto, with Salomon Smith Barney Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated, Stifel, Nicolaus & Company, Incorporated, UBS Warburg LLC, Credit Suisse First Boston Corporation, J.P. Morgan Securities Inc., Legg Mason Wood Walker, Incorporated and Lehman Brothers Inc. for the issuance and sale of up to 4,600,000 preferred securities, liquidation amount $25 per security, of ONB Capital Trust II's 8.00% Trust Preferred Securities (the "preferred securities") pursuant to Registration Statement on Form S-3 (File No. 333-87573) filed with the Securities and Exchange Commission on September 22, 1999 (the "Registration Statement"). On April 12, 2002, Old National will execute a Guarantee Agreement, the form of which was filed as an exhibit to the Registration Statement. Old National will also execute an Amended and Restated Trust Agreement, the form of which is attached hereto. Certain statements contained in this current report on Form 8-K may not be based on historical facts and are "forward-looking statements" within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. These forward-looking statements may be identified by their reference to a future period or periods or by the use of forward-looking terminology such as "anticipate," "believe," "estimate," "expect," "may," "might," "will," "would" or "intend." These forward-looking statements include, without limitation, those relating to the use of proceeds from the issuance of the preferred securities and the listing of the preferred securities on the New York Stock Exchange. We caution you not to place undue reliance on the forward-looking statements contained in this current report on Form 8-K in that actual results could differ materially from those indicated in such forward-looking statements, due to a variety of factors. Those factors include, but are not limited to, changes in economic conditions and government fiscal and monetary policies, fluctuations in prevailing interest rates, laws and regulations affecting financial institutions, the ability of Old National to compete with other financial services companies, changes in Old National's operating or expansion strategy, geographic concentration of Old National's assets, availability of and costs associated with obtaining adequate and timely sources of liquidity, other factors generally understood to affect the financial results of financial services companies, and other factors described from time to time in Old National's filings with the Securities and Exchange Commission. We undertake no obligation to update these forward-looking statements to reflect events or circumstances that occur after the date on which such statements were made. 2 Item 7. Financial Statements and Exhibits. (c) See Exhibit Index * * * * * * * 3 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this Current Report on Form 8-K to be signed on its behalf by the undersigned hereunto duly authorized. OLD NATIONAL BANCORP (Registrant) Date: April 8, 2002 By: /s/ Jeffrey L. Knight ------------------------------------------ Jeffrey L. Knight, Senior Vice President, Secretary and General Counsel 4 INDEX TO EXHIBITS Exhibit No. Description - ----------- ----------- 1.2 Form of Underwriting Agreement for ONB Capital Trust II 4.13 Form of Amended and Restated Trust Agreement for ONB Capital Trust II 8.2 Opinion of Krieg DeVault LLP, counsel to Old National, as to certain federal income tax matters for ONB Capital Trust II 23.5 Consent of Krieg DeVault LLP (included in Exhibit 8.2) 5 EX-1.2 3 ex1-2.txt Exhibit 1.2 [FORM OF UNDERWRITING AGREEMENT FOR TRUST PREFERRED SECURITIES] UNDERWRITING AGREEMENT FOR TRUST PREFERRED SECURITIES ONB CAPITAL TRUST II % TRUST PREFERRED SECURITIES (liquidation amount $25 per preferred security) guaranteed on a junior subordinated basis by Old National Bancorp UNDERWRITING AGREEMENT ------------- To the Representatives named in Schedule I hereto of the Underwriters named in Schedule II hereto Ladies and Gentlemen: ONB Capital Trust II, a statutory business trust formed under the laws of the State of Delaware (the "Trust"), and Old National Bancorp, a financial holding company organized under the laws of the State of Indiana, as depositor of the Trust and as guarantor (the "Company" and, together with the Trust, the "Issuers"), propose subject to the terms and conditions stated herein, that the Trust issue and sell to the several underwriters named in Schedule II hereto (the "Underwriters"), for whom you are acting as representatives (the "Representatives"), _____% Trust Preferred Securities (liquidation amount $25 per preferred security) representing beneficial interests in the Trust (the "Trust Securities"), with a Liquidation Amount at Maturity as set forth in Schedule I hereto (the "Underwritten Securities"). The Issuers also propose to grant to the Underwriters an option to purchase additional Trust Securities with a Liquidation Amount at Maturity as set forth in Schedule I hereto to cover over-allotments (the "Option Securities" and the Option Securities, together with the Underwritten Securities, the "Securities"). The Securities are guaranteed on a junior subordinated basis by the Company as to the payment of distributions, and as to payments on liquidation or redemption, to the extent set forth in a guarantee agreement to be dated _____________ (the "Guarantee") between the Company and Bank One Trust Company, NA, as trustee (the "Guarantee Trustee"). The Trust is to purchase, with the proceeds of the sale of the Securities to the Underwriters and the sale of its Common Securities (liquidation amount $25 per common security) (the "Common Securities") to the Company, corresponding junior subordinated debentures (the "Corresponding Junior Subordinated Debentures") of the Company in an amount equal to the combined Liquidation Amount at Maturity of the Securities and the Common Securities, which Corresponding Junior Subordinated Debentures are to be issued pursuant to an indenture (the "Indenture") dated as of March 14, 2000 between the Company and Bank One Trust Company, NA, as trustee (the "Corresponding Debt Trustee") as supplemented by the terms and conditions set forth in an officer's certificate dated _____________. The payments made by the Company on the Corresponding Junior Subordinated Debentures are established at a level sufficient to permit the Trust, upon receipt of such payments, to make payments on the Securities in accordance with their terms. Any reference herein to the Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the case may be; and any reference herein to the terms "amend," "amendment" or "supplement" with respect to the Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. Certain terms used herein are defined in Section 17 hereof. SECTION 1. Representations and Warranties. Each of the Issuers jointly and severally represents and warrants to each Underwriter as of the date hereof, the Closing Date referred to in Section 3 hereof and the Settlement Date, if any, referred to in Section 1(b) hereof, and agrees with each Underwriter, as follows: (a) The Issuers meet the requirements for use of Form S-3 under the Act and have prepared and filed with the Commission a registration statement (the file number of which is set forth in Schedule I hereto) on Form S-3, including a related basic prospectus, for registration under the Act of the offering and sale of the Securities. The Issuers may have filed one or more amendments thereto, including a Preliminary Final Prospectus, each of which has previously been furnished to you. The Issuers will next file with the Commission one of the following: (1) after the Effective Date of such registration statement, a Final Prospectus relating to the Securities in accordance with Rules 430A and 424(b), (2) prior to the Effective Date of such registration statement, an amendment to such registration statement (including the form of Final Prospectus) or (3) a Final Prospectus in accordance with Rules 415 and 424(b). In the case of clause (1), the Issuers have included in such registration statement, as amended at the Effective Date, all information (other than Rule 430A Information) required by the Act and the rules thereunder to be included in such registration statement and the Final Prospectus. As filed, such Final Prospectus or such amendment and form of Final Prospectus shall contain all Rule 430A Information, together with all other such required information, and, except to the extent the Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the Basic Prospectus and any Preliminary Final Prospectus) as the Company has advised you, prior to the Execution Time, will be included or made therein. The Registration Statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x). (b) On the Effective Date, the Registration Statement did or will, and when the Final Prospectus is first filed (if required) in accordance with Rule 424(b) and at the Closing 2 Date and on any date on which Option Securities are purchased, if such date is not the Closing Date (a "Settlement Date"), the Final Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; on the Effective Date and at the Execution Time, the Registration Statement did not or will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; on the Effective Date and on the Closing Date the Trust Agreement (as defined below), the Indenture and the Guarantee did or will comply in all material respects with the applicable requirements of the Trust Indenture Act and the rules thereunder; and, on the Effective Date, the Final Prospectus, if not filed pursuant to Rule 424(b), will not, and on the date of any filing pursuant to Rule 424(b) and on the Closing Date and any Settlement Date, the Final Prospectus (together with any supplement thereto) will not, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Issuers make no representations or warranties as to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement or the Final Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion in the Registration Statement or the Final Prospectus (or any supplement thereto). (c) The Trust has been duly created and is validly existing as a statutory business trust in good standing under the Business Trust Act of the State of Delaware with the power and authority to enter into and perform its obligations under this Agreement, the Securities, the Common Securities and the Trust Agreement (as defined below) and to own property and conduct its business as described in the Final Prospectus, and has conducted and will conduct no business other than the transactions contemplated by this Agreement and as described in the Final Prospectus; the Trust is not a party to or bound by any agreement or instrument other than this Agreement, the Amended and Restated Trust Agreement to be dated as of _____________ (the "Trust Agreement") between the Company and the trustees named therein (the "Trustees") and the agreements and instruments contemplated by the Trust Agreement and the Final Prospectus. (d) The Common Securities have been duly authorized by the Trust and upon delivery by the Trust to the Company against payment therefor as described in the Final Prospectus, will be duly and validly issued and fully paid and non-assessable beneficial interests in the Trust and will conform to the description thereof contained in the Final Prospectus; the issuance of the Common Securities is not subject to preemptive or other similar rights; and on the Closing Date or any Settlement Date, all of the issued and outstanding Common Securities of the Trust will be directly owned by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. (e) The Securities have been duly authorized by the Trust, and, when issued and delivered against payment therefor as provided herein, will be duly and validly issued and, subject to the qualifications set forth herein, fully paid and non-assessable beneficial interests in 3 the Trust and will conform in all material respects to the description thereof contained in the Final Prospectus; the issuance of the Securities is not subject to preemptive or other similar rights; and the holders of the Securities (the "Security holders") will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware (subject to the obligations of the Security holders under the Trust Agreement to make certain payments to the Trust to defray expenses such as any applicable transfer and stamp taxes and to provide security or indemnity in connection with the replacement of destroyed, lost or stolen certificates or in connection with directing the Property Trustee under the Trust Agreement to exercise its rights and powers at the request of Security holders). (f) The Guarantee, the Corresponding Junior Subordinated Debentures, the Trust Agreement and the Indenture (collectively, the "Company Agreements") have each been duly authorized by the Company and when validly executed and delivered by the Company and, in the case of the Guarantee, by the Guarantee Trustee, in the case of the Trust Agreement, by the Trustees, in the case of the Indenture, by the Corresponding Debt Trustee, and, in the case of the Corresponding Junior Subordinated Debentures, when validly issued by the Company and validly authenticated and delivered by the Corresponding Debt Trustee, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing; the Trust Agreement, the Indenture and the Guarantee have been duly qualified under the Trust Indenture Act, as amended; the Corresponding Junior Subordinated Debentures are entitled to the benefits of the Indenture; and the Company Agreements will conform to the descriptions thereof in the Final Prospectus. (g) This Agreement has been duly authorized, executed and delivered by each of the Issuers. (h) The Company is a financial holding company duly organized and validly existing in good standing under the laws of the State of Indiana with full corporate power and authority to enter into and perform its obligations under this Agreement, the Trust Agreement, the Indenture, the Guarantee and the Corresponding Junior Subordinated Debentures, and to purchase, own and hold the Common Securities issued by the Trust. (i) The Company has authorized capitalization as set forth in the Final Prospectus, and all of the issued shares of capital stock of the company have been duly and validly authorized and issued and are fully paid and non-assessable; all the outstanding beneficial interests in the Trust have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the descriptions thereof contained in the Final Prospectus; (j) Each "significant subsidiary" of the Company (as such term is defined in Rule 1-02 of Regulation S-X (each, a "Subsidiary" and, collectively, the "Subsidiaries," and each of which is listed on Schedule III hereto) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has power and authority (corporate and other) to own, lease and operate its properties and to conduct its 4 business as described in the Final Prospectus, and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or be in good standing would not singly or in the aggregate have a material adverse effect on the condition, financial or otherwise, or the earnings or business affairs of the Company and its subsidiaries; and all of the issued and outstanding capital stock of each Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and all such shares owned by the Company, directly or through subsidiaries, are owned free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or security interest; (k) The consolidated historical financial statements, together with related schedules and notes, included or incorporated by reference in the Registration Statement and the Final Prospectus (and any amendment or supplement thereto), comply as to form in all material respects with the requirements of the Act and the Exchange Act. Such historical financial statements present fairly the consolidated financial position of the Company and its subsidiaries at the respective dates indicated and the results of their operations and their cash flows for the respective periods indicated in accordance with generally accepted accounting principles consistently applied throughout such periods. (l) The Issuers have not distributed and, prior to the later to occur of (i) the Closing Date and (ii) completion of the distribution of the Securities, will not distribute any offering materials in connection with the offering and sale of the Securities other than the Registration Statement, the Preliminary Final Prospectus, the Final Prospectus or other materials, if any, permitted by the Securities Act. (m) None of the Company, the Trust or any Subsidiary is in violation of its charter, by-laws or other organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Trust or any of the Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Trust or any Subsidiary is subject (collectively, "Agreements and Instruments") except for such defaults that would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings or properties of the Company and its subsidiaries, taken as a whole, whether or not arising in the ordinary course of business (a "Material Adverse Effect"); and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Final Prospectus under the caption "Use of Proceeds") and compliance by each of the Trust and the Company with its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Trust or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of 5 the provisions of the charter, by-laws or other organizational documents of the Company, the Trust or any Subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Trust or any Subsidiary or any of their assets, properties or operations. As used herein, a "Repayment Event" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Trust or any Subsidiary. (n) No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property is pending or, to the best knowledge of the Company, threatened that could reasonably be expected to have a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto). (o) Arthur Andersen LLP, the Company's former auditors, were independent public accountants with respect to the Company within the meaning of the Act and the applicable published rules and regulations thereunder for fiscal years and . PricewaterhouseCoopers LLP, the Company's current auditors, who have certified certain financial statements of the Company and its consolidated subsidiaries and delivered their report with respect to the audited consolidated financial statements for fiscal years , and and schedules included in the Final Prospectus, are independent public accountants with respect to the Company within the meaning of the Act and the applicable published rules and regulations thereunder. (p) The Company, the Trust and the Subsidiaries possess all licenses, certificates, permits and other authorizations issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses, and neither the Company, the Trust nor any such Subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto). (q) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by each of the Issuers of its obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement, except such as have been already obtained or made or as may be required under the Act or the rules and regulations of the Commission thereunder or state securities laws and except for the qualification of the Trust Agreement, the Indenture and the Guarantee under the Trust Indenture Act. (r) The statements set forth in (i) the Basic Prospectus under the captions "Description of Debt Securities," "Description of Capital Securities," "Description of Guarantees," and "Relationship Among the Capital Securities, the Corresponding Junior 6 Subordinated Debentures and the Guarantees," and (ii) in the Final Prospectus as amended or supplemented under the captions "Certain Terms of Preferred Securities" and "Certain Terms of the Junior Subordinated Debentures" insofar as they constitute a summary of the terms of the Securities, Subordinated Debentures, the Guarantees and the Company Agreements, and (y) in the Basic Prospectus under the caption "Underwriting" and (y) in the Final Prospectus as amended or supplemented under the caption "Underwriting," insofar as they purport to describe the provisions of the laws and documents referred to therein, in each case are accurate, complete and fair; (s) The Company is a financial holding company under the Bank Holding Company Act of 1956, as amended (the "Bank Holding Company Act"), and the regulations of the Board of Governors of the Federal Reserve System (the "Federal Reserve"), and the deposit accounts of the Company's subsidiary banks are insured by the Federal Deposit Insurance Corporation ("FDIC") to the fullest extent permitted by law and the rules and regulations of the FDIC, and no proceeding for the termination of such insurance are pending or threatened. (t) Each of the Issuers is not, and upon the issuance and sale of the Securities as herein contemplated and the application of the net proceeds therefrom as described in the Final Prospectus will not be, an "investment company" or an entity "controlled" by an "investment company" as such terms are defined in the Investment Company Act of 1940, as amended (the "1940 Act"). Any certificate signed by any officer of the Company and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter. SECTION 2. Purchase and Sale. (a) Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Trust agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Trust, at the purchase price set forth in Schedule I hereto the principal amount of the Securities set forth opposite such Underwriter's name in Schedule II hereto. (b) Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Trust hereby grants an option to the several Underwriters to purchase, severally and not jointly, up to _____________ Option Securities at the same purchase price per share as the Underwriters shall pay for the Underwritten Securities. Said option may be exercised only to cover over-allotments in the sale of the Underwritten Securities by the Underwriters. Said option may be exercised in whole or in part at any time (but not more than once) on or before the 30th day after the date of the Final Prospectus upon written or telegraphic notice by the Representatives to the Issuers setting forth the number of shares of the Option Securities as to which the several Underwriters are exercising the option and the Settlement Date. The number of shares of the Option Securities to be purchased by each Underwriter shall be the same percentage of the total number of shares of the Option Securities to be purchased by the several Underwriters as such Underwriter is purchasing of the Underwritten Securities, 7 subject to such adjustments as you in your absolute discretion shall make to eliminate any fractional shares. SECTION 3. Delivery and Payment. Delivery of and payment for the Underwritten Securities and the Option Securities (if the option provided for in Section 2(b) hereof shall have been exercised on or before the third Business Day prior to the Closing Date) shall be made on the date and at the time specified in Schedule I hereto or at such time on such later date not more than three Business Days after the foregoing date as the Representatives shall designate, which date and time may be postponed by agreement between the Representatives and the Company or as provided in Section 9 hereof (such date and time of delivery and payment for the Securities being herein called the "Closing Date"). Delivery of the Securities shall be made to the Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Trust by wire transfer payable in same-day funds to an account specified by the Company. Delivery of the Securities shall be made through the facilities of The Depository Trust Company unless the Representatives shall otherwise instruct. If the option provided for in Section 2(b) hereof is exercised after the third Business Day prior to the Closing Date, the Trust will deliver the Option Securities (at the expense of the Company) to the Representatives, at 388 Greenwich Street, New York, New York, on the date specified by the Representatives (which shall be within three Business Days after exercise of said option) for the respective accounts of the several Underwriters, against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Trust by wire transfer payable in same-day funds to an account specified by the Trust. If settlement for the Option Securities occurs after the Closing Date, the Company will deliver to the Representatives on the Settlement Date for the Option Securities, and the obligation of the Underwriters to purchase the Option Securities shall be conditioned upon receipt of, supplemental opinions, certificates and letters confirming as of such date the opinions, certificates and letters delivered on the Closing Date pursuant to Section 6 hereof. Following receipt by the Trust of any proceeds received in connection with the exercise of the option provided for in Section 2(b) at any time prior to the expiration thereof, the Company will issue, in accordance with the first paragraph and Section 5(i) hereof, additional Corresponding Junior Subordinated Debentures in an aggregate principal amount equal to the aggregate liquidation amount of the Option Securities actually issued by the Trust, divided by 97/100 and rounded to the nearest $25. SECTION 4. Offering by Underwriters. It is understood that the several Underwriters propose to offer the Securities for sale to the public as set forth in the Final Prospectus. SECTION 5. Agreements. Each of the Issuers jointly and severally covenants with each Underwriter as follows: (a) It will use its best efforts to cause the Registration Statement, if not effective on the Execution Date, and any amendment thereof, to become effective. Prior to the termination of the offering of the Securities, it will not file any amendment of the Registration 8 Statement or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus or any Rule 462(b) Registration Statement unless it has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Final Prospectus is otherwise required under Rule 424(b), it will cause the Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. It will promptly advise the Representatives (1) when the Registration Statement, if not effective at the Execution Time, shall have become effective, (2) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (3) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (4) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (5) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose and (6) of the receipt by it of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. It will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof. (b) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, it promptly will (1) notify the Representatives of such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request. (c) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act. (d) It will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Final Prospectus and the Final Prospectus and any supplement 9 thereto as the Representatives may reasonably request. It will pay the expenses of printing or other production of all documents relating to the offering. (e) It will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject. (f) It will not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any of its securities to facilitate the sale or resale of the Securities. (g) During the period of three years hereafter (i) the Company will furnish to you, upon your request, from time to time, such information concerning the Company as you may reasonably request, and (ii) the Trust will furnish to you, upon your request, a copy of each report of the Trust mailed to holders of Preferred securities or Common Securities. (h) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to Section 11(b) hereof or by notice given by you terminating this Agreement pursuant to Section 11 or Section 12 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Issuers to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all reasonable out-of-pocket expenses (including reasonable fees and expenses of counsel for the Underwriters) incurred by you in connection therewith. (i) It will cause the net proceeds received by the Trust from the sale of the Securities to be used in the manner specified in the Final Prospectus (or any supplement thereto) under "Use of Proceeds." (j) It will use its best efforts to cause the listing of the Securities on any such stock exchange or exchanges as are set forth in Schedule I hereto. (k) It will not, without the prior written consent of Salomon Smith Barney Inc., offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Issuers or any affiliate of the Issuers or any person in privity with the Issuers or any affiliate of the Issuers) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any securities of its with the characteristics and terms similar to the Securities 10 or publicly announce an intention to effect any such transaction until the Business Day set forth on Schedule I hereto. (l) During the period when the Final Prospectus is required to be delivered under the Act or the Exchange Act, the Company will file or cause to be filed all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act. SECTION 6. Payment of Expenses. The Issuers will pay or cause to be paid the expenses set forth in Schedule I hereto. SECTION 7. Conditions of Underwriters' Obligations. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Issuers contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Issuers made in any certificates pursuant to the provisions hereof, to the performance by the Issuers of their obligations hereunder and to the following additional conditions: (a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) On or prior to the Closing Date, the Representatives shall have received the favorable opinion, dated as of Closing Date, of (i) Krieg Devault LLP, counsel for the Issuers, in form and substance satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters and addressed to the Underwriters, to the effect set forth in Exhibit A and to such further effect as counsel to the Underwriters may reasonably request. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of Indiana and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Representatives. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company, the Trust and the Company's Subsidiaries, certificates of representatives of the applicable trustees and certificates of public officials. (c) On or prior to the Closing Date, the Representatives shall have received the favorable opinion, dated as of Closing Date, of Cleary, Gottlieb, Steen & Hamilton, the counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters and addressed to the Underwriters with respect to such matters as the 11 Representatives may reasonably request. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Representatives. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company, the Trust and the Company's Subsidiaries, certificates of representatives of the applicable Trustees and certificates of public officials. (d) On or before the Closing Date, the Representatives shall have received the favorable opinion, dated as of Closing Date, of Richards, Layton & Finger, P.A., special Delaware counsel for the Issuers, in form and substance satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters and addressed to the Underwriters, to the effect set forth in Exhibit B hereto and to such further effect as counsel to the Underwriters may reasonably request. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Representatives. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Trust, the Company and the Company's Subsidiaries, certificates of representatives of the applicable trustees and certificates of public officials. (e) On the Closing Date, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Final Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its Subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and the Representatives shall have received a certificate of the President or a Vice President of the Company and of the Chief Financial Officer or Corporate Controller of the Company, dated as of Closing Date, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties in Section 1(a) hereof are true and correct with the same force and effect as though expressly made at and as of Closing Date, (iii) each of the Trust and the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied on or prior to the Closing Date, and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are, to the knowledge of such officers, contemplated by the Commission. (f) Each Issuer shall have performed all of its obligations under this Agreement which are to be performed by the terms hereof on or before the Closing Date. (g) At the time of the execution of this Agreement, the Representatives shall have received from the Company's independent public accountants, PricewaterhouseCoopers LLP, a letter dated such date, in form and substance satisfactory to the Representatives (substantially in the form of Exhibit C hereto), together with signed or reproduced copies of such letter for each of the other Underwriters and addressed to the Underwriters containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to certain financial statements and certain financial information contained in the Preliminary Final Prospectus and the Final Prospectus. 12 (h) On or prior to the Closing Date, the Representatives shall have received from PricewaterhouseCoopers LLP, the Company's independent public accountants a letter, dated as of the Closing Date, together with signed or reproduced copies of such letter for each of the other Underwriters and addressed to the Underwriters, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (g) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Date. (i) On or prior to the Closing Date, the Representatives shall have received a rating from Moody's Investors Service, Inc., Standard & Poors Rating Services and Fitch Ratings indicating that the Securities have been rated as set forth in Schedule I hereto. Since the date of this Agreement, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the Company's debt securities by any "nationally recognized statistical rating agency," as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and no such organization shall have publicly announced that it has placed under surveillance or review its rating of the Securities or any of the Company's other debt securities. (k) On or prior to the Closing Date, the Securities shall have been approved for listing on such exchange or exchanges as are listed on Schedule I hereto, subject only to official notice of issuance. (l) On or prior to the Closing Date, counsel for the Underwriters shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Issuers in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Representatives and counsel for the Underwriters. (m) If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Representatives by notice to the Issuers at any time on or prior to the Closing Date and such termination shall be without liability of any party to any other party except as provided in Section 6 and except that Sections 1, 8, 9 and 10 shall survive any such termination and remain in full force and effect. SECTION 8. Indemnification. (a) Each of the Issuers agrees jointly and severally to indemnify and hold harmless each Underwriter, the directors, officers, employees and agents of each Underwriter and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement for the registration of the Securities as originally filed or in any amendment thereof, or in the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission 13 to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Issuers will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Issuers by or on behalf of any Underwriter through the Representatives specifically for inclusion therein. This indemnity agreement will be in addition to any liability which the Issuers may otherwise have. (b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Issuers, each of their directors, each of their officers who signs the Registration Statement, and each person who controls either of the Issuers within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Issuers to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth in the last paragraph of the cover page regarding delivery of the Securities and, under the heading "Underwriting" in the Final Prospectus, (i) the list of Underwriters and their respective participation in the sale of the Securities, (ii) the sentences related to concessions and reallowances and (iii) the paragraph related to stabilization, syndicate covering transactions and penalty bids in any Preliminary Final Prospectus and the Final Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in any Preliminary Final Prospectus or the Final Prospectus. (c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party's choice at the indemnifying party's expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party's election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such 14 action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (ii) does not include a statement as to or admission of, fault, culpability or a failure to act by or on behalf of any such indemnified party. (d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Issuers and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, "Losses") to which the Issuers and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Issuers on the one hand and by the Underwriters on the other from the offering of the Securities; provided, however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Issuers and the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Issuers on the one hand and of the Underwriters on the other in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Issuers shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by them, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Final Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Issuers on the one hand or the Underwriters on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Issuers and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls an 15 Underwriter within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls either of the Issuers within the meaning of either the Act or the Exchange Act, each officer of the Issuers who shall have signed the Registration Statement and each director of the Issuers shall have the same rights to contribution as the Issuers, subject in each case to the applicable terms and conditions of this paragraph (d). SECTION 9. Default by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the principal amount of Securities set forth opposite their names in Schedule II hereto bears to the aggregate principal amount of Securities set forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate principal amount of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate principal amount of Securities set forth in Schedule I hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the Company. In the event of a default by any Underwriter as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business Days, as the Representatives shall determine in order that the required changes in the Registration Statement and the Final Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any nondefaulting Underwriter for damages occasioned by its default hereunder. SECTION 10. Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements contained in this Agreement or in certificates of officers of the Trust, Company or any Subsidiaries of the Company submitted pursuant hereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or controlling person, or by or on behalf of the Issuers, and shall survive delivery of and payment for the Securities to the Underwriters. SECTION 11. Termination of Agreement. (a) The Representatives may, in their sole discretion, terminate this Agreement, by notice to the Issuers, at any time on or prior to the Closing Date (i) if there has been, since the time of execution of this Agreement or since the respective dates as of which information is given in the Final Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its Subsidiaries considered as one enterprise or the Trust, whether or not arising in the ordinary course of business, or (ii) if there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any declaration by the United States of a national emergency or war or the outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which is such as to make it, in the sole judgment 16 of the Representatives, impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the Securities, or (iii) if trading in any securities of the Company has been suspended or limited by the Commission or the New York Stock Exchange, or if trading generally on the American Stock Exchange, the Nasdaq National Market System or the New York Stock Exchange has been suspended or limited (other than to provide for an orderly market), or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or (iv) if a banking moratorium has been declared by either Federal or New York authorities. (b) If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party except as provided in Section 4 hereof, and provided further that Sections 1, 6, 8, 9 and 10 shall survive such termination and remain in full force and effect. SECTION 12. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed to the Representatives at the address set forth on Schedule I; notices to the Issuers shall be directed to them at 420 Main Street, Evansville, Indiana 47708, attention of the Corporate Secretary. SECTION 13. Parties. This Agreement shall inure to the benefit of and be binding upon the Underwriters, the Issuers and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters, the Issuers and their respective successors and the controlling persons and officers and directors referred to in Sections 8 and 10 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters, the Issuers and their respective successors, and said controlling persons and officers, directors, trustees and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase. SECTION 14. Governing Law and Time. This agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed wholly within such state. Except as otherwise set forth herein, specified times of day refer to New York City time. SECTION 15. Effect of Headings. The Article and Section headings herein are for convenience only and shall not affect the construction hereof. SECTION 16. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 17 SECTION 17. Definitions. The terms which follow, when used in this Agreement, shall have the meanings indicated. "Act" shall mean the Securities Act of 1933, as amended and the rules and regulations of the Commission promulgated thereunder. "Basic Prospectus" shall mean the prospectus referred to in paragraph 1(a) above contained in the Registration Statement at the Effective Date including any Preliminary Final Prospectus. "Business Day" shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City. "Commission" shall mean the Securities and Exchange Commission. "Effective Date" shall mean each date and time that the Registration Statement, any post-effective amendment or amendments thereto and any Rule 462(b) Registration Statement became or become effective. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder. "Execution Time" shall mean the date and time that this Agreement is executed and delivered by the parties hereto. "Final Prospectus" shall mean the prospectus supplement relating to the Securities that was first filed pursuant to Rule 424(b) after the Execution Time, together with the Basic Prospectus. "Preliminary Final Prospectus" shall mean any preliminary prospectus supplement to the Basic Prospectus which describes the Securities and the offering thereof and is used prior to filing of the Final Prospectus, together with the Basic Prospectus. "Registration Statement" shall mean the registration statement referred to in paragraph 1(a) above, including exhibits and financial statements, as amended at the Execution Time (or, if not effective at the Execution Time, in the form in which it shall become effective) and, in the event any post-effective amendment thereto or any Rule 462(b) Registration Statement becomes effective prior to the Closing Date, shall also mean such registration statement as so amended or such Rule 462(b) Registration Statement, as the case may be. Such term shall include any Rule 430A Information deemed to be included therein at the Effective Date as provided by Rule 430A. "Rule 415," "Rule 424," "Rule 430A" and "Rule 462" refer to such rules under the Act. 18 "Rule 430A Information" shall mean information with respect to the Securities and the offering thereof permitted to be omitted from the Registration Statement when it becomes effective pursuant to Rule 430A. "Rule 462(b) Registration Statement" shall mean a registration statement and any amendments thereto filed pursuant to Rule 462(b) relating to the offering covered by the registration statement referred to in Section 1(a) hereof. "Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as amended and the rules and regulations of the Commission promulgated thereunder. 19 If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Issuers and the several Underwriters. Very truly yours, OLD NATIONAL BANCORP By: ___________________________________ Name: Title: ONB CAPITAL TRUST II By: ___________________________________ Name: Title: The foregoing Agreement is hereby confirmed and accepted as of the date first written above. [NAME(S) OF REPRESENTATIVES] By: Salomon Smith Barney Inc. By: ____________________________ Name: Title: For themselves and the other Underwriters named in Schedule II to the foregoing Agreement 20 SCHEDULE I ONB CAPITAL TRUST II Underwriting Agreement dated: _____________ Registration Statement No.: _____________ Representative(s): Title, Purchase Price and Description of Securities:
Title: _____% Trust Preferred Securities. Liquidation Amount at Maturity of $_____________ (liquidation amount $25 per preferred security). Underwritten Securities: Liquidation Amount of Maturity of Option $_____________. Securities: Distributions: _____% per annum, from _____________, payable quarterly on _____________, _____________, _____________ and _____________, commencing _____________. Maturity: Optional Redemption: Sinking Fund: Listing: Rating: Expenses: Purchase Price: ____% of liquidation amount. Underwriters' Compensations: As compensation to the Underwriters for their commitments hereunder, and in view of the fact that the proceeds of the sale of the Securities will be used by the Trust to purchase the Corresponding Junior Subordinated Debentures of the Company, the Company hereby agrees to pay at Closing to Salomon Smith Barney Inc., for the accounts of the several Underwriters, an amount equal to $._____ per Security ($_____________ in the aggregate if the overallotment option is unexercised and up to an additional $_____________ if the overallotment option is exercised). Closing: _____ a.m. on _____________, at the offices of [Federal (same day)] funds. Settlement and Trading: [Physical certificated form.] [Book-Entry Only via the Depository Trust Company ("DTC").] The Securities [will][will not] trade in DTC's Same Day Funds Settlement System. Type of Offering: Registered. Date referred to in Section 5(k) after which the Company may offer or sell debt securities issued or guaranteed by the Company without the consent of the Representatives: Notices: Notices to be given to the Underwriters should be directed to the Representatives as follows:
The respective numbers of the Securities to be purchased by each of the Underwriters are set forth opposite their names in Schedule II hereto. 2 SCHEDULE II ONB CAPITAL TRUST II Number of Preferred Underwriters Securitiesto be Purchased - ------------ ------------------------- SCHEDULE III OLD NATIONAL BANCORP List of Significant Subsidiaries Old National Bank, Evansville, Indiana Exhibit A FORM OF OPINION OF ISSUERS' COUNSEL TO BE DELIVERED PURSUANT TO SECTION 7(b) Capitalized terms used herein shall have the same definitions as set forth in the underwriting agreement (the "Agreement") to which this Exhibit A is attached. (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Indiana. The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus and to enter into and perform its obligations under the Agreement and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction that requires such qualification. (ii) Each Subsidiary set forth on Schedule III to the Agreement has been duly incorporated and is validly existing as a corporation under the laws of the jurisdiction of its incorporation, and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus; except as otherwise disclosed in the Registration Statement, all of the issued and outstanding capital stock of each Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the best of our knowledge, is owned by the Company, directly or through Subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; to the best of our knowledge, none of the outstanding shares of capital stock of any Subsidiary was issued in violation of the preemptive or similar rights of any securityholder of such Subsidiary. (iii) The Agreement has been duly authorized, executed and delivered by the Company. (iv) The Guarantee, the Corresponding Junior Subordinated Debentures, the Trust Agreement and the Indenture have each been duly authorized by the Company and when validly executed and delivered by the Company and, in the case of the Guarantee, by the Guarantee Trustee, in the case of Trust Agreement, by the Trustees and, in the case of the Indenture, by the Corresponding Debt Trustee, and, in the case of Corresponding Junior Subordinated Debentures, when validly issued by the Company and validly authenticated and delivered by the Corresponding Debt Trustee, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law); the Trust Agreement, the Indenture and the Guarantee have been duly qualified under the Trust Indenture Act, as amended; the Corresponding Junior Subordinated Debentures are entitled to the benefits of the Indenture; and the Company Agreements conform in all material respects to the descriptions thereof in the Final Prospectus. (vi) The Registration Statement has been declared effective under the Act; any required filing of the Basic Prospects, the Preliminary Final Prospectus and the Final Prospectus A-1 pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission. (vii) The Registration Statement, the Final Prospectus, excluding the documents incorporated by reference therein, and each amendment or supplement to the Registration Statement and Final Prospectus, excluding the documents incorporated by reference therein, as of their respective effective or issue dates (other than the financial statements and supporting schedules included therein or omitted therefrom and the Statements of Eligibility on Form T-1 of the applicable trustees, as to which we express no opinion) appear on their face to comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the respective rules thereunder. (viii) The documents incorporated by reference in the Final Prospectus (other than the financial statements and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they became effective or were filed with the Commission, as the case may be, appear on their face to comply as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. (ix) Neither the Company nor any Subsidiary is in violation of its charter or by-laws and no default by the Company or any Subsidiary exists in the due performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument that is described or referred to in the Registration Statement or the Final Prospectus or filed or incorporated by reference as an exhibit to the Registration Statement. (x) No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property is pending or, to the best knowledge of the Company, threatened that could reasonably be expected to have a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus. (xi) The Company, the Trust and the Subsidiaries possess all licenses, certificates, permits and other authorizations issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses, and neither the Company, the Trust nor any such Subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus. (xii) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign (other than under the Act and the Trust Indenture Act, which have been obtained or made, or as may be required under the securities or blue sky laws of the various states, as to which we A-2 express no opinion) is necessary or required in connection with the due authorization, execution and delivery of the Agreement or the transactions contemplated in the Agreement. (xiii) The Securities are duly listed, admitted and authorized for trading on the New York Stock Exchange subject to official notice of issuance, and, except as set forth in the Final Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, the Securities are outstanding. (xiv) The execution, delivery and performance of the Agreement and the Company Agreements and the consummation of the transactions contemplated in the Agreement and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Final Prospectus under the caption "Use Of Proceeds") and compliance by each of the Company and the Trust with its obligations under the Agreement and the Company Agreements do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or similar event under or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary pursuant to any written contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreement or instrument, known to us, to which the Company or any Subsidiary is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary is subject (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not have a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Company or any Subsidiary, or any applicable law, statute, rule, regulation, judgment, order, writ or decree, known to us, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Subsidiary or any of their respective properties, assets or operations. (xv) Neither the Company nor the Trust is and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Prospectus, will be an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the 1940 Act. (xvi) The Company is duly registered as a financial holding company under the Bank Holding Company Act, and the regulations of the Board of Governors of the Federal Reserve System (the "Federal Reserve"), and the deposit accounts of the Company's subsidiary banks are insured by the Federal Deposit Insurance Corporation ("FDIC") to the fullest extent permitted by law and the rules and regulations of the FDIC, and no proceeding for the termination of such insurance are pending or threatened. (xvii) The statements set forth in (i) the Basic Prospectus under the captions "Description of Debt Securities," "Description of Capital Securities," "Description of Guarantees" and "Relationship Among the Capital Securities, the Corresponding Junior Subordinated Debentures and the Guarantees," and (ii) in the Final Prospectus as amended or supplemented under the captions "Certain Terms of the Preferred Securities" and "Certain Terms of the Junior Subordinated Debentures" insofar as they constitute a summary of the terms of the Securities, Subordinated Debentures, the Guarantees and the Company Agreements, and (x) in A-3 the Basic Prospectus under the caption "Underwriting" and (y) in the Final Prospectus as amended or supplemented under the caption "Underwriting," insofar as they purport to describe the provisions of the laws and documents referred to therein, in each case are accurate, complete and fair. (xviii) The statements made in the Final Prospectus under the caption "United States Federal Income Taxation," to the extent they are matters of law or legal conclusions, have been reviewed by such counsel and are accurate and correct in all material respects and fairly present the information set forth therein. (xix) The Junior Subordinated Debentures will be treated for United States federal income tax purposes as indebtedness of the Company. (x) The Trust will be treated for United States federal income tax purposes as a grantor trust and not as an association taxable as a corporation. We have participated in conferences with officers and other representatives of the Issuers, representatives of the Underwriters and representatives of the independent public accountants for the Issuers at which conferences the contents of the Preliminary Final Prospectus, Final Prospectus and the Registration Statement and related matters were discussed and, although we have not independently verified, are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Final Prospectus (except as otherwise indicated above), we advise you that, on the basis of the foregoing (relying as to materiality to the extent we deem appropriate upon the opinions of officers and other representatives of the Issuers), no facts have come to our attention that lead us to believe that the Registration Statement or any amendment thereto, at the time such Registration Statement or any such amendment became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Preliminary Final Prospectus or Final Prospectus, in each case as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that we express no comment with respect to the Forms T-1 or the financial statements, including the notes thereto, or any other financial or statistical data found in or derived from the internal accounting and other records of the Company and its Subsidiaries set forth or referred to in the Registration Statement or the Final Prospectus). A-4 Exhibit B FORM OF OPINION OF DELAWARE COUNSEL TO BE DELIVERED PURSUANT TO SECTION 7(d) Capitalized terms used herein shall have the same definitions as set forth in the underwriting agreement (the "Agreement") to which this Exhibit B is attached. (i) The Trust is a duly formed and validly existing statutory business trust in good standing under the Business Trust Act of the State of Delaware with the business trust power and authority to enter into and perform its obligations under this Agreement, the Securities, the Common Securities and the Trust Agreement and to own property and conduct its business as described in the Final Prospectus. (ii) Under the Delaware Business Trust Act and the Trust Agreement, the execution and delivery by the Trust of this Agreement, and the performance by the Trust of its obligations hereunder, have been duly authorized by all necessary business trust action on the part of the Trust. (iii) The Trust Agreement constitutes a valid and binding obligation of the Company, the Trustees and the Administrators, enforceable against the Company, the Trustees and the Administrators, in accordance with its terms, subject, as to enforcement, to the effect of (a) bankruptcy, insolvency, moratorium, receivership, liquidation, fraudulent conveyance, reorganization and other similar laws relating to or affecting the remedies and rights of creditors, (b) general principles of equity (regardless of whether considered or applied in a proceeding in equity or at law), (c) considerations of public policy or the effect of applicable law relating to fiduciary duties, and (d) principles of course of dealing or course of performance and standards of good faith, fair dealing, materiality or reasonableness that may be applied by a court to the exercise of rights or remedies. (iv) The Common Securities have been duly authorized for issuance by the Trust and upon issuance and delivery by the Trust to the Company against payment therefor as described in the Trust Agreement, will be duly and validly issued and, subject to the qualifications set forth herein, fully paid and non-assessable beneficial interests in the Trust and [NOTE: counsel may note that the holders of Common Securities may be required to make payment or provide indemnity or security as set forth in the Trust Agreement] the issuance of the Common Securities is not subject to preemptive or other similar rights under the Trust Agreement or the Business Trust Act. (v) The Securities have been duly authorized for issuance by the Trust, and, when issued and delivered against payment therefor as provided herein, will be duly and validly issued and, subject to the qualifications set forth herein, fully paid and non-assessable beneficial interests in the Trust [NOTE: counsel may note that the holders of Common Securities may be required to make payment or provide indemnity or security as set forth in the Trust Agreement]; the issuance of the Securities is not subject to preemptive or other similar rights B-1 under the Trust Agreement or the Business Trust Act; and the Security holders will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. [NOTE: counsel need express no opinion as to any holder of a Security that is, was or becomes a named Trustee of the Trust.] (vi) The issuance and sale by the Trust of the Securities and the Common Securities, the execution, delivery and performance by the Trust of the Agreement, the consummation by the Trust of the transactions contemplated therein and the compliance by the Trust with its obligations thereunder do not violate (a) any of the provisions of the Certificate of Trust of the Trust or the Trust Agreement or (b) any applicable Delaware law or Delaware administrative regulation. (vii) Assuming that the Trust derives no income from or connected with sources within the State of Delaware and has no assets, activities (other than having a Delaware trustee as required by the Delaware Business Trust Act and the filing of documents with the Secretary of State of the State of Delaware) or employees in the State of Delaware, no authorization, approval, consent or order of any Delaware court or Delaware governmental authority or Delaware agency is required to be obtained by the Trust solely as a result of the issuance and sale of the Securities, the consummation by the Trust of the transactions contemplated herein or the compliance by the Trust of its obligations hereunder, except such as have been obtained and such as may be required by the securities laws of the State of Delaware (as to which such counsel need express no opinion). (viii) Assuming that the Trust derives no income from or connected with sources within the State of Delaware and has no assets, activities (other than having a Delaware trustee as required by the Delaware Business Trust Act and the filing of documents with the Secretary of State of the State of Delaware) or employees in the State of Delaware, and assuming that the Trust is treated as a grantor trust for federal income tax purposes and that the holders of the Securities are viewed for federal income tax purposes as owners of either all of, or their liquidation and accrued but unpaid share of, the Corresponding Subordinated Debt Securities held by the Trust, the Security holders (other than those holders of the Securities, or persons who are partners or S corporation shareholders for federal income tax purposes in such holders of Securities, who reside or are domiciled in the State of Delaware or who are otherwise subject to income taxation in the State of Delaware) will have no liability for income taxes imposed by the State of Delaware solely as a result of their participation in the Trust, and the Trust will not be liable for any income tax imposed by the State of Delaware (in rendering the opinion expressed in this paragraph (viii), such counsel need express no opinion concerning the securities laws of the State of Delaware). B-2 Exhibit C FORM OF ACCOUNTANTS' COMFORT LETTER - -------------------------: We have audited the consolidated financial statements of Old National Bancorp (the "Company") and subsidiaries as of December 31, _____________ and _______ and for each of the _______ years in the period ended December 31, ___________ incorporated by reference in the Company's annual report on Form 10-K for the year ended _____________ (the "Form 10-K"), incorporated by reference in the registration statement (No._____________) on Form S-3 filed by the Company under the Securities Act of 1933 (the "Act"); our report with respect thereto is also incorporated by reference in such registration statement. Such registration statement, including, without limitation, the preliminary prospectus supplement dated _____________ and the prospectus supplement dated _____________, is herein referred to as the "Registration Statement." In connection with the Registration Statement: 1. We are independent certified public accountants with respect to the Company within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Securities and Exchange Commission ("the SEC"). 2. In our opinion, the consolidated financial statements audited by us and incorporated by reference in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the Act and the Securities Exchange Act of 1934 and the related rules and regulations adopted by the SEC. 3. We have not audited any financial statements of the Company as of any date or for any period subsequent to December 31,__________. Therefore, we are unable to and do not express any opinion on the company's financial position, results of operations or cash flows as of any date or for any period subsequent to -------------. 4. For purposes of this letter, we have read the minutes of the ______meetings of the Board of Directors of the Company as set forth in the minute books at _____________, officials of the Company having advised us that the minutes of all such meetings through that date were set forth therein except for the minutes of the _____________ Board of Directors meeting which were not approved in final form, for which drafts were provided to us; officials of the Company have represented that such drafts include all substantive actions taken at such meeting, and have carried out other procedures to _____________ (our work did not extend to the period from _____________ to _____________, inclusive) as follows: C-1 With respect to the period from _____________ to _____________, we have: (i) read the unaudited consolidated financial data of the Company and subsidiaries for _____________ and _____________ of both _______ and _______ furnished us by the Company (such financial information is incomplete in that it omits the statement of cash flows and other disclosures), officials of the Company having advised us that no such financial data as of any date or for any period subsequent to _____________ were available; and (ii) inquired of certain officials of the Company who have responsibility for financial and accounting matters as to whether the unaudited consolidated financial data referred to in (i) above are stated on a basis substantially consistent with that of the audited consolidated financial statements incorporated by reference in the Registration Statement. The foregoing procedures do not constitute an audit made in accordance with generally accepted auditing standards. Also, they would not necessarily reveal matters of significance with respect to the comments in the following paragraph. Accordingly, we make no representations as to the sufficiency of the foregoing procedures for your purposes. 5. Nothing came to our attention as a result of the foregoing procedures, however, that caused us to believe that (i) at _____________ there was any change in common stock, decreases in total assets, total deposits, shareholders' equity, or increase in long-term debt of the Company and subsidiaries consolidated as compared with amounts shown in the December 31,__________ consolidated balance sheet incorporated by reference in the Registration Statement, or (ii) for the period from _____________ to _____________ there were any decreases, as compared with the corresponding period in the preceding year, in consolidated net interest income or in net income, except in all instances for changes, increases or decreases which the Registration Statement discloses have occurred or may occur and except as described in the following sentence. The unaudited consolidated balance sheet as of _____________, which we were furnished by the Company, showed a decrease in consolidated total deposits and an increase in consolidated long-term debt as compared with amounts shown in the December 31,____________ consolidated balance sheet incorporated by reference in the Registration Statement as follows (in millions of dollars): --------------------------------------------------------------------- Total Deposits Long-term Debt --------------------------------------------------------------------- December 31, --------------------------------------------------------------------- --------------------------------------------------------------------- 6. As mentioned in 4, Company officials have advised us that no consolidated financial data as of any date or for any period subsequent to _____________ are available; accordingly, the procedures carried out by us with respect to changes in financial statement items after _____________ have, of necessity, been even more limited than those with respect to the periods referred to in 4. We have inquired of certain officials of the Company who have C-2 responsibility for financial and accounting matters as to whether (a) at _____________ there was any change in common stock, decreases in total assets, total deposits, shareholders' equity, or increase in long-term debt of the Company and subsidiaries consolidated as compared with amounts shown in the December 31,_____________ audited consolidated balance sheet incorporated by reference in the Registration Statement; or (b) for the period from _____________ to _____________, there were any decreases, as compared with the corresponding period in the preceding year, in consolidated net interest income or in net income. On the basis of these inquiries and our reading of the minutes as described in 4, nothing came to our attention that caused us to believe that there was any such change, increase or decrease, except in all instances for changes, increases or decreases which the Registration Statement discloses have occurred or may occur and except as described in the following sentence. We have been informed by officials of the Company that there continues to be a decrease in consolidated total deposits and an increase in consolidated long-term debt that is estimated to be approximately the same amount as set forth in 5 above. 7. For purposes of this letter, we have also read the items identified by you on the attached copy of the prospectus supplement forming part of the Registration Statement and have performed the following procedures, which were applied as indicated with respect to the symbols explained below: A Compared to or recalculated from the audited consolidated financial statements and notes included in the Company's annual report on Form 10-K for the year ended December 31,___________ and incorporated by reference in the Registration Statement and found the amounts or percentages to be in agreement after rounding. B Compared to or recalculated from the audited consolidated financial statements and notes included in the Company's annual reports on Form 10-K for the years ended December 31,__________ and _______ and found the amounts or percentages to be in agreement after rounding. M Verified mathematical accuracy. P Compared to or recalculated from schedules prepared by the Company from its accounting records and found the amounts or percentages to be in agreement. Amounts were rounded to the nearest whole dollar or percentage where applicable. Our work included agreeing the amounts on the schedules with the Company's accounting records and verifying the mathematical accuracy of the schedules. R Compared to or recalculated from schedules prepared by the Company from its accounting records and found the amounts or percentages to be in agreement. Amounts were rounded to the nearest whole dollar or percentage where applicable. Our work included agreeing the amounts on the schedules with the Company's accounting records and verifying the mathematical accuracy of the schedules. We make no comment as to the appropriateness of the allocation of rental expense that is representative of the interest factor of such rental. T Compared and agreed or recalculated and agreed, as appropriate, the dollar amounts or percentages to analyses and schedules prepared by the Company from its detailed accounting records. We make no comment as to the appropriateness of the tax rates used in the Company's taxable-equivalent adjustment. C-3 EX-4.13 4 ex4-13.txt Exhibit 4.13 [FORM OF AMENDED AND RESTATED TRUST AGREEMENT] ---------------------------------------------------------------------------- AMENDED AND RESTATED TRUST AGREEMENT among OLD NATIONAL BANCORP, as Depositor, BANK ONE TRUST COMPANY, NA, as Property Trustee, BANK ONE DELAWARE, INC., as Delaware Trustee and the Administrators and the several Holders of the Trust Securities dated as of , ONB CAPITAL TRUST II ---------------------------------------------------------------------------- Certain Sections of this Trust Agreement Relating to Section 310 through 318 of the Trust Indenture Act of 1939: Trust Indenture Sections of this Act Section Trust Agreement Section 310(a)(1).................................... 8.7(a) (a)(2)............................................... 8.7(a) (a)(3)............................................... 8.9(b) (a)(4)............................................... 8.5, 2.7(a)(ii)(E) (b).................................................. 8.8 Section 311(a)....................................... 8.13 (b).................................................. 8.13 Section 312(a)....................................... 5.8 (b).................................................. 5.8 (c).................................................. 5.8 Section 313(a)....................................... 8.14(a) (b).................................................. 8.14(a) (c).................................................. 8.14(a), 10.8 Section 314(a)....................................... 8.15 (b).................................................. Not Applicable (c)(1)............................................... 8.16 (c)(2)............................................... 8.16 (c)(3)............................................... Not Applicable (d).................................................. Not Applicable (e).................................................. 1.1, 8.16 Section 315(a)....................................... 8.1(a), 8.1(d), 8.3(a) (b).................................................. 8.2, 10.8 (c).................................................. 8.1(d) (d).................................................. 8.1 (e).................................................. Not Applicable Section 316(a)....................................... Not Applicable (a)(1)(A)............................................ Not Applicable (a)(1)(B)............................................ Not Applicable (a)(2)............................................... Not Applicable (b).................................................. 5.13 (c).................................................. 6.7 Section 317(a)....................................... Not Applicable (b).................................................. 5.10, 8.2 Section 318(a)....................................... 10.10 Note: This reconciliation and tie sheet shall not, for any purpose, be deemed to be a part of the Trust Agreement and shall not affect the interpretation of any of its terms or provisions.
TABLE OF CONTENTS ARTICLE I DEFINED TERMS Section 1.1. Definitions.....................................................................................1 ARTICLE II ESTABLISHMENT OF THE TRUST Section 2.1. Name...........................................................................................10 Section 2.2. Office of the Delaware Trustee; Principal Place of Business of the Trust.......................11 Section 2.3. Initial Contribution of Trust Property; Organizational Expenses................................11 Section 2.4. Issuance of the Preferred Securities...........................................................11 Section 2.5. Issuance of the Common Securities; Subscription and Purchase of Debentures.....................11 Section 2.6. Declaration of Trust...........................................................................12 Section 2.7. Authorization to Enter into Certain Transactions...............................................12 Section 2.8. Assets of Trust................................................................................16 Section 2.9. Title to Trust Property........................................................................16 ARTICLE III PAYMENT ACCOUNT Section 3.1. Payment Account................................................................................17 ARTICLE IV CERTAIN TERMS OF THE TRUST SECURITIES Section 4.1. Distributions..................................................................................17 Section 4.2. Redemption.....................................................................................18 Section 4.3. Subordination of Common Securities.............................................................20 Section 4.4. Payment Procedures.............................................................................21 Section 4.5. Tax Returns and Reports........................................................................21 Section 4.6. Payments Under Indenture or Pursuant to Direct Actions.........................................21 ARTICLE V TRUST SECURITIES CERTIFICATES Section 5.1. Initial Ownership..............................................................................22 Section 5.2. The Trust Securities Certificates..............................................................22 Section 5.3. Execution and Delivery of Trust Securities Certificates........................................22 Section 5.4. Book-Entry Preferred Securities................................................................23 Section 5.5. Registration of Transfer and Exchange of Preferred Securities Certificates.....................24 Section 5.6. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates.............................25 Section 5.7. Persons Deemed Holders.........................................................................26 Section 5.8. Access to List of Holders' Names and Addresses.................................................26 Section 5.9. Maintenance of Office or Agency................................................................26 Section 5.10. Appointment of Paying Agent....................................................................26 i Section 5.11. Ownership of Common Securities by Depositor....................................................27 Section 5.12. Notices to Clearing Agency.....................................................................27 Section 5.13. Rights of Holders..............................................................................27 ARTICLE VI ACTS OF HOLDERS; MEETINGS; VOTING Section 6.1. Limitations on Voting Rights...................................................................30 Section 6.2. Notice of Meetings.............................................................................31 Section 6.3. Meetings of the Holders of Preferred Securities................................................31 Section 6.4. Voting Rights..................................................................................32 Section 6.5. Proxies, Etc...................................................................................32 Section 6.6. Holder Action by Written Consent...............................................................32 Section 6.7. Record Date for Voting and Other Purposes......................................................32 Section 6.8. Acts of Holders................................................................................33 Section 6.9. Inspection of Records..........................................................................34 ARTICLE VII REPRESENTATIONS AND WARRANTIES Section 7.1. Representations and Warranties of the Issuer Trustees..........................................34 Section 7.2. Representations and Warranties of Depositor....................................................35 ARTICLE VIII THE ISSUER TRUSTEES; THE ADMINISTRATORS Section 8.1. Certain Duties and Responsibilities............................................................36 Section 8.2. Certain Notices................................................................................38 Section 8.3. Certain Rights of Property Trustee.............................................................38 Section 8.4. Not Responsible for Recitals or Issuance of Securities.........................................40 Section 8.5. May Hold Securities............................................................................41 Section 8.6. Compensation; Indemnity; Fees..................................................................41 Section 8.7. Corporate Property Trustee Required; Eligibility of Issuer Trustees and Administrators.........42 Section 8.8. Conflicting Interests..........................................................................42 Section 8.9. Co-Trustees and Separate Trustee...............................................................43 Section 8.10. Resignation and Removal of Issuer Trustees, Appointment of Successor...........................44 Section 8.11. Acceptance of Appointment by Successor.........................................................45 Section 8.12. Merger, Conversion, Consolidation or Succession to Business....................................46 Section 8.13. Preferential Collection of Claims Against Depositor or Trust...................................46 Section 8.14. Reports by the Property Trustee................................................................46 Section 8.15. Reports to the Property Trustee................................................................46 Section 8.16. Evidence of Compliance with Conditions Precedent...............................................46 Section 8.17. Number of Issuer Trustees......................................................................47 Section 8.18. Delegation of Power by Administrators..........................................................47 Section 8.19. Appointment and Removal of Administrators......................................................47 ii ARTICLE IX TERMINATION, LIQUIDATION AND MERGER Section 9.1. Termination Upon Expiration Date...............................................................48 Section 9.2. Early Termination..............................................................................48 Section 9.3. Termination....................................................................................48 Section 9.4. Liquidation....................................................................................49 Section 9.5. Mergers, Consolidations, Conversions, Amalgamations or Replacements of the Trust...............50 ARTICLE X MISCELLANEOUS PROVISIONS Section 10.1. Limitation of Rights of Holders.............................................................51 Section 10.2. Amendment...................................................................................51 Section 10.3. Separability................................................................................52 Section 10.4. Governing Law...............................................................................53 Section 10.5. Payments Due on Non-Business Day............................................................53 Section 10.6. Successors..................................................................................53 Section 10.7. Headings....................................................................................54 Section 10.8. Reports, Notices and Demands................................................................54 Section 10.9. Agreement Not to Petition...................................................................54 Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act......................................55 Section 10.11. Acceptance of Terms of Trust Agreement, Guarantee and Indenture.............................55 Section 10.12. Counterparts................................................................................55 EXHIBITS - -------- Exhibit A Form of Common Security Certificate Exhibit B Form of Preferred Security Certificate
iii AMENDED AND RESTATED TRUST AGREEMENT, dated as of , , among (i) Old National Bancorp, a financial holding company organized under the laws of the State of Indiana (including any successors or assigns, the "Depositor"), (ii) Bank One Trust Company, NA, a national banking association organized under the laws of the United States, as property trustee (the "Property Trustee" and, in its separate corporate capacity and not in its capacity as Property Trustee, the "Bank"), (iii) Bank One Delaware, Inc., a Delaware corporation, as Delaware trustee (the "Delaware Trustee") (the Property Trustee and the Delaware Trustee referred to collectively as the "Issuer Trustees") and (iv) the several Holders, as hereinafter defined. W I T N E S S E T H: WHEREAS, the Depositor and the Delaware Trustee have heretofore duly declared and established a business trust pursuant to the Delaware Business Trust Act by entering into a Trust Agreement, dated as of September 15, 1999 (the "Original Trust Agreement"), and by the execution and filing with the Secretary of State of the State of Delaware of the Certificate of Trust, filed on September 15, 1999 with the Securities and Exchange Commission as Exhibit 4.4 to the Depositor's shelf registration statement (No. 333-87573) ; and WHEREAS, the Depositor and the Issuer Trustees desire to amend and restate the Original Trust Agreement in its entirety as set forth herein to provide for, among other things, (i) the issuance of the Common Securities by the Trust to the Depositor, (ii) the issuance and sale of the Preferred Securities by the Trust pursuant to the Underwriting Agreement, (iii) the acquisition by the Trust from the Depositor of all of the right, title and interest in the Debentures and (iv) the appointment of the Administrators; NOW THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, each party, for the benefit of the other parties and for the benefit of the Holders, hereby amends and restates the Original Trust Agreement in its entirety and agrees as follows: ARTICLE I DEFINED TERMS Section 1.1. Definitions. For all purposes of this Trust Agreement, except as otherwise expressly provided or unless the context otherwise requires: (a) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; (b) all other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; (c) all accounting terms used but not defined herein have the meanings assigned to them in accordance with United States generally accepted accounting principles; (d) unless the context otherwise requires, any reference to an "Article" or a "Section" refers to an Article or a Section, as the case may be, of this Trust Agreement; and (e) the words "herein," "hereof" and "hereunder" and other words of similar import refer to this Trust Agreement as a whole and not to any particular Article, Section or other subdivision. "1940 Act" means the Investment Company Act of 1940, as amended. "Act" has the meaning specified in Section 6.8 "Additional Amounts" has the meaning specified in Section 10.6 of the Indenture. "Additional Interest" means, with respect to Trust Securities of a given Liquidation Amount or a given period, the amount of Additional Interest (as defined in the Indenture) paid by the Depositor on a Like Amount of Debentures for such period. "Administrator" means each Person appointed in accordance with Section 8.19 solely in such Person's capacity as Administrator of the Trust created and continued hereunder and not in such Person's individual capacity, or such Administrator's successor in interest in such capacity, or any successor administrator appointed as herein provided. "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Applicable Procedures" means, with respect to any transfer or transaction involving a Book-Entry Preferred Security, the rules and procedures of the Clearing Agency for such Book-Entry Preferred Security, in each case to the extent applicable to such transaction and as in effect from time to time. "Bank" has the meaning specified in the preamble to this Trust Agreement. "Bankruptcy Event" means, with respect to any Person: (a) the entry of a decree or order by a court having jurisdiction in the premises judging such Person a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjudication or composition of or in respect of such Person under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or 2 other similar official) of such Person or of any substantial part of its property or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or (b) the institution by such Person of proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law, or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or similar official) of such Person or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due and its willingness to be adjudicated a bankrupt, or the taking of corporate action by such Person in furtherance of any such action. "Bankruptcy Laws" has the meaning specified in Section 10.9. "Book-Entry Preferred Securities Certificates" means a Preferred Security, the ownership and transfers of which shall be made through book entries by a Clearing Agency as described in Section 5.4. "Business Day" means a day other than (a) a Saturday or Sunday, (b) a day on which banking institutions in The City of New York are authorized or required by law, regulation or executive order to remain closed, or (c) a day on which the Property Trustee's Corporate Trust Office or the corporate trust office of the Indenture Trustee is closed for business. "Clearing Agency" means an organization registered as a "clearing agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. The Depository Trust Company will be the initial Clearing Agency. "Clearing Agency Participant" means a broker, dealer, bank, other financial institution or other Person for whom from time to time a Clearing Agency effects book-entry transfers and pledges of securities deposited with the Clearing Agency. "Closing Date" has the meaning specified in the Underwriting Agreement. "Code" means the Internal Revenue Code of 1986, as amended. "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, as amended, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time. "Common Securities Certificate" means a certificate evidencing ownership of Common Securities, substantially in the form attached as Exhibit A. 3 "Common Security" means an undivided beneficial ownership interest in the Trust Property, having a Liquidation Amount of $25, having a term of thirty years ending on and having the rights provided therefor in this Trust Agreement, including the right to receive Distributions and a Liquidation Distribution as provided herein. "Corporate Trust Office" means the office of the Property Trustee at which this Trust Agreement shall, at any particular time, be principally administered, which office shall at all times be located in the United States and at the date of execution of this Trust Agreement is located at 1 Bank One Plaza, Chicago, Illinois 60670, Attention: Corporate Trust Administration, or such other address in the United States as the Property Trustee may designate from time to time by notice to the Holders and the Depositor. "Debenture Event of Default" means an "Event of Default" as defined in the Indenture. "Debenture Redemption Date" means, with respect to any Debentures to be redeemed under the Indenture, the date fixed for redemption under the Indenture; provided, that any such redemption prior to the stated maturity of the Debentures shall be subject to the prior approval of the Regulator if required under its then-applicable capital guidelines or policies. "Debentures" means the Depositor's % Junior Subordinated Debentures issued pursuant to the Indenture. "Definitive Preferred Securities Certificates" means either or both (as the context requires) of (a) Preferred Securities Certificates issued as Global Preferred Securities as provided in Section 5.4(c) and (b) Preferred Securities Certificates issued in certificated, fully registered form as provided in Section 5.4 and 5.5. "Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Section 3801, et seq., as it may be amended from time to time. "Delaware Trustee" means the Person identified as the "Delaware Trustee" in the preamble to this Trust Agreement solely in its capacity as Delaware Trustee of the Trust created and continued hereunder and not in its individual capacity, or its successor in interest in such capacity, or any successor Delaware trustee appointed as herein provided. "Depositor" has the meaning specified in the preamble to this Trust Agreement. "Distribution Date" has the meaning specified in Section 4.1(a). "Distributions" means amounts payable in respect of the Trust Securities as provided in Section 4.1. "DTC" means the Depository Trust Company. "DTC Letter of Representations" means a letter executed by the Trust, the Property Trustee and DTC and required to be submitted to DTC in order for the global Preferred Securities Certificate to be eligible for deposit at DTC. 4 "ERISA" means the Employee Retirement Income Security Act of 1974, as amended. "Event of Default" means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (a) the occurrence of an Event of Default with respect to a Debenture; or (b) for so long as no Interest Payment Deferral Period is continuing, a default by the Trust in the payment of any Distribution when it becomes due and payable, and continuation of such default for a period of 30 days; or (c) a default by the Trust in the payment of any Redemption Price of any Trust Security when it becomes due and payable; or (d) a default in the performance, or breach, in any material respect, of any covenant or warranty of the Issuer Trustees in this Trust Agreement (other than a covenant or warranty a default in the performance or breach of which is dealt with in clause (b) or (c) above) and continuation of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the defaulting Issuer Trustee or Trustees by the Holders of at least 25% in aggregate Liquidation Amount preference of the Outstanding Preferred Securities a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or (e) the occurrence of a Bankruptcy Event with respect to the Property Trustee and the failure by the Depositor to appoint a successor Property Trustee within 60 days thereof. "Expiration Date" has the meaning specified in Section 9.1. "Global Preferred Security" means a Preferred Securities Certificate evidencing ownership of Book-Entry Preferred Securities. "Guarantee" means the Guarantee Agreement dated as of , between the Depositor and Bank One Trust Company, NA, as guarantee trustee, for the benefit of the Holders of the Trust Securities, as amended from time to time. "Holder" means a Person in whose name a Trust Security or Trust Securities is registered in the Securities Register, any such Person being a beneficial owner within the meaning of the Delaware Business Trust Act. "Indemnified Person" has the meaning set forth in Section 8.6(c). "Indenture" means the Indenture, dated as of March 14, 2000, between the Depositor and the Indenture Trustee relating to the Debentures, as amended or supplemented from time to time. 5 "Indenture Trustee" means Bank One Trust Company, NA, as trustee under the Indenture and any successor thereto. "Interest Payment Deferral Period" shall have the meaning specified in Section 4.1. "Issuer Trustees" has the meaning specified in the preamble to this Trust Agreement. "Investment Company Event" means the receipt by the Trust of an Opinion of Counsel experienced in such matters to the effect that, as a result of the occurrence of a change in law or regulation or a change in interpretation or application of law or regulation by any legislative body, court, governmental agency or regulatory authority that becomes or would become effective on or after the date of original issuance of the Preferred Securities, there is more than an insubstantial risk that the Trust is or will be considered an "investment company" that is required to be registered under the 1940 Act. "Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of trust, adverse ownership interest, hypothecation, assignment, security interest or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever. "Like Amount" means (a) with respect to a redemption of Trust Securities, Trust Securities having an aggregate Liquidation Amount equal to the principal amount of Debentures to be contemporaneously redeemed in accordance with the Indenture, allocated to the Common Securities and the Preferred Securities based upon the relative aggregate Liquidation Amounts of such classes and the proceeds of which will be used to pay the Redemption Price of such Trust Securities, (b) with respect to a distribution of Debentures to Holders of Trust Securities in connection with a dissolution or liquidation of the Trust, Debentures having a principal amount equal to the aggregate Liquidation Amount of the Trust Securities of the Holder to whom such Debentures are distributed and (c) with respect to any distribution of any Additional Interest to Holders of Trust Securities, Debentures having a principal amount equal to the aggregate Liquidation Amount of the Trust Securities in respect of which such Distribution is made. "Liquidation Amount" means $25 per Trust Security. "Liquidation Date" means the date on which Debentures, if any, are to be distributed to Holders of Trust Securities in connection with a termination and liquidation of the Trust pursuant to Sections 9.3 and 9.4(a). "Liquidation Distribution" has the meaning specified in Section 9.4(d). "Ministerial Action" means the taking of an action, such as filing a form or making an election, or pursuing some other similar reasonable measure that will have no adverse effect on the Trust, the Depositor or the Holders of the Trust Securities and will involve no material cost. "Officer" means the Chairman of the Board, the President, any Senior Vice President, any Vice President, the Treasurer or any Assistant Treasurer, the Secretary or any Assistant Secretary of the Depositor. 6 "Officers' Certificate" means a certificate signed by two Officers of the Depositor and delivered to the appropriate Issuer Trustee. One of the officers signing an Officers' Certificate given pursuant to Section 8.16 shall be the principal executive, financial or accounting officer of the Depositor. Any Officers' Certificate delivered with respect to compliance with a condition or covenant provided for in this Trust Agreement shall include: (a) a statement that each officer signing the Officers' Certificate has read the covenant or condition and the definitions relating thereto; (b) a brief statement of the nature and scope of the examination or investigation undertaken by each officer in rendering the Officers' Certificate; (c) a statement that each such officer has made such examination or investigation as, in such officer's opinion, is necessary to enable such officer to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether, in the opinion of each such officer, such condition or covenant has been complied with. "Opinion of Counsel" means a written opinion of counsel who may be an employee of or, counsel for the Trust, the Property Trustee or the Depositor, or any of their respective Affiliates, and who shall be reasonably acceptable to the Property Trustee. "Original Trust Agreement" has the meaning specified in the recitals to this Trust Agreement. "Outstanding," when used with respect to Trust Securities, means, as of the date of determination, all Trust Securities represented by Trust Securities Certificates theretofore executed and delivered under this Trust Agreement, except: (a) Trust Securities represented by Trust Securities Certificates theretofore cancelled by the Property Trustee or delivered to the Property Trustee for cancellation; (b) Trust Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Property Trustee or any Paying Agent for the Holders of such Trust Securities; provided, that, if such Trust Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Trust Agreement; and (c) Trust Securities which have been paid or Trust Securities represented by Trust Securities Certificates in exchange for or in lieu of which other Trust Securities Certificates have been executed and delivered pursuant to Article V; provided, however, that, in determining whether the Holders of the requisite Liquidation Amount of the Outstanding Preferred Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Preferred Securities owned by the Depositor, any Issuer Trustee, any 7 Administrator or any Affiliate of the Depositor, any Issuer Trustee or any Administrator shall be disregarded and deemed not to be Outstanding, except that (a) in determining whether any Issuer Trustee or Administrator shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Preferred Securities that such Issuer Trustee or Administrator, as the case may be, knows to be so owned shall be so disregarded and (b) the foregoing shall not apply at any time when all of the Outstanding Preferred Securities are owned by the Depositor, one or more of the Issuer Trustees, one or more of the Administrators and/or any such Affiliate. Preferred Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Administrators the pledgee's right so to act with respect to such Preferred Securities and that the pledgee is not the Depositor or any Affiliate of the Depositor. "Owner" means each Person who is the beneficial owner of a Book-Entry Preferred Security as reflected in the records of the Clearing Agency or, if a Clearing Agency Participant is not the Owner, then as reflected in the records of a Person maintaining an account with such Clearing Agency (directly or indirectly, in accordance with the rules of such Clearing Agency). "Paying Agent" means any paying agent or co-paying agent appointed pursuant to Section 5.10 and shall initially be the Bank. "Payment Account" means a segregated non-interest-bearing corporate trust account maintained by the Property Trustee in its trust department for the benefit of the Holders in which all amounts paid in respect of the Debentures will be held and from which the Property Trustee shall make payments to the Holders in accordance with Sections 4.1 and 4.2. "Person" means any individual, corporation, partnership, joint venture, association, joint stock company, trust, limited liability company or corporation, unincorporated organization or government or any agency or political subdivision thereof. "Preferred Securities Certificate" means a certificate evidencing ownership of Preferred Securities, substantially in the form attached as Exhibit B. "Preferred Security" means an undivided beneficial ownership interest in the assets of the Trust, having a Liquidation Amount of $25 and having the rights provided therefor in this Trust Agreement, including the right to receive Distributions and a Liquidation Distribution as provided herein. "Property Trustee" means the commercial bank or trust company identified as the "Property Trustee" in the preamble to this Trust Agreement, solely in its capacity as Property Trustee of the Trust heretofore created and continued hereunder and not in its individual capacity, or its successor in interest in such capacity, or any successor property trustee appointed as herein provided. "Redemption Date" means, with respect to any Trust Security to be redeemed, the date fixed for such redemption by or pursuant to this Trust Agreement; provided, that each Debenture Redemption Date and the stated maturity of the Debentures shall be a Redemption Date for a Like Amount of Trust Securities. 8 "Redemption Price" means, with respect to any Trust Security, the Liquidation Amount of such Trust Security, plus accrued but unpaid Distributions to the Redemption Date, plus the related amount of the premium, if any, paid by the Depositor upon the concurrent redemption of a Like Amount of Debentures, allocated on a pro rata basis (based on aggregate Liquidation Amounts) among the Trust Securities. "Regulator" means the Board of Governors of the Federal Reserve System or the primary federal banking regulator of the Depositor. "Regulatory Capital Event" means a determination by the Depositor, based on an Opinion of Counsel experienced in such matters, to the effect that, as a result of: (i) any amendment to, clarification of or change in applicable laws or regulations or official interpretations thereof or policies with respect thereto, or (ii) any official administrative pronouncement or judicial decision interpreting or applying such laws or regulations, in each case which amendment, clarification or change is effective or which pronouncement or decision is announced on or after the date of original issuance of the Preferred Securities, there is more than an insubstantial risk that the Preferred Securities will no longer constitute Tier 1 capital of the Depositor or any bank holding company or financial holding company of which the Depositor is a subsidiary for purposes of the capital adequacy guidelines or policies of the Regulator.. "Relevant Trustee" has the meaning specified in Section 8.10. "Securities Register" and "Securities Registrar" have the respective meanings specified in Section 5.5. "Settlement Date" has the meaning specified in the Underwriting Agreement. "Series" means a series of securities or the securities of the series issued under the Indenture. "Special Event" means any of a Tax Event, an Investment Company Event or a Regulatory Capital Event. "Successor Securities" has the meaning specified in Section 9.4. "Tax Event" means the receipt by the Trust of an Opinion of Counsel experienced in such matters to the effect that, as a result of (a) any amendment to or change (including any announced prospective change) in the laws or any regulations thereunder of the United States or any political subdivision or taxing authority thereof or therein, or (b) any judicial decision or any official administrative pronouncement (including any private letter ruling, technical advice, memorandum or field service advice) interpreting or applying such laws or regulations (an "Administrative Action"), regardless of whether such judicial decision or Administrative Action is issued to or in connection with a proceeding involving the Depositor or the Trust and whether or not subject to review or appeal, which amendment, change, Administrative Action or decision is enacted, effective, promulgated or announced, in each case, on or after the date of original issuance of the Preferred Securities, there is more than an insubstantial risk that (i) the Trust is, or will be within 90 days of the date of such opinion, subject to United States federal income tax 9 with respect to income received or accrued on the Debentures, (ii) the interest payable by the Depositor is not, or within 90 days of the date of such opinion, will not be deductible by the Depositor , in whole or in part, for United States federal income tax purposes, or (iii) the Trust is, or will be within 90 days of the date of such opinion, subject to more than a de minimis amount of other taxes, duties or other governmental charges. "Time of Delivery" has the meaning specified in the Underwriting Agreement. "Trust" means the Delaware business trust created and continued hereby and identified on the cover page to this Trust Agreement. "Trust Agreement" means this Amended and Restated Trust Agreement, as the same may be modified, amended or supplemented in accordance with the applicable provisions hereof, including all exhibits hereto, including, for all purposes of this Trust Agreement and any such modification, amendment or supplement, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this Trust Agreement and any such modification, amendment or supplement, respectively. "Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended. "Trust Property" means (a) the Debentures, (b) any cash on deposit in, or owing to, the Payment Account and (c) all proceeds and rights in respect of the foregoing and any other property and assets for the time being held or deemed to be held by the Property Trustee pursuant to the terms of this Trust Agreement. "Trust Securities Certificate" means any one of the Common Securities Certificates or the Preferred Securities Certificates. "Trust Security" means any one of the Common Securities or the Preferred Securities. "Underwriting Agreement" means the Underwriting Agreement, dated as of , among the Trust, the Depositor and the underwriters named therein. ARTICLE II ESTABLISHMENT OF THE TRUST Section 2.1. Name The Trust continued hereby shall be known as "ONB CAPITAL TRUST II," as such name may be modified from time to time by the Administrators following written notice to the Holders of Trust Securities and the Issuer Trustees, in which name the Administrators and the Issuer Trustees may conduct the business of the Trust, make and execute contracts and other instruments on behalf of the Trust and sue and be sued. 10 Section 2.2. Office of the Delaware Trustee; Principal Place of Business of the Trust. The address of the Delaware Trustee in the State of Delaware is Three Christiana Center 201 North Walnut Street, Wilmington, DE 19801, Attention: Legal Dept./First USA, or such other address in the State of Delaware as the Delaware Trustee may designate by written notice to the Holders and the Depositor. The principal executive office of the Trust is c/o Old National Bancorp, 420 Main Street, Evansville, Indiana 47708. Section 2.3. Initial Contribution of Trust Property; Organizational Expenses. The Property Trustee acknowledges receipt from the Depositor in connection with the Original Trust Agreement of the sum of $10, which constituted the initial Trust Property. The Depositor shall pay organizational expenses of the Trust as they arise or shall, upon request of any Issuer Trustee, promptly reimburse such Issuer Trustee for any such expenses paid by such Issuer Trustee. The Depositor shall make no claim upon the Trust Property for the payment of such expenses. Section 2.4. Issuance of the Preferred Securities. On ________, the Depositor, on its own behalf and on behalf of the Trust and pursuant to the Original Trust Agreement, executed and delivered the Underwriting Agreement. Contemporaneously with the execution and delivery of this Trust Agreement, an Administrator, on behalf of the Trust, shall execute in accordance with Section 5.2 and the Property Trustee shall deliver to the Underwriters named in the Underwriting Agreement, Preferred Securities Certificates, registered in the name of the nominee of the initial Clearing Agency, representing ________ Preferred Securities having an aggregate Liquidation Amount of $________, against receipt of such aggregate purchase price of such Preferred Securities of $________, by the Property Trustee. In the event and to the extent any over-allotment option granted by the Trust and the Depositor pursuant to the Underwriting Agreement is exercised by the underwriters named therein, on the Closing Date or any Settlement Date, an Administrator, on behalf of the Trust, shall execute in accordance with Section 5.2 and the Property Trustee shall deliver to the underwriters named therein additional Preferred Securities Certificates, registered in the name of the nominee of the initial Clearing Agency, representing up to ________ Preferred Securities having an aggregate Liquidation Amount of up to $________, against receipt of the purchase price per Preferred Security of $25 by the Property Trustee. Section 2.5. Issuance of the Common Securities; Subscription and Purchase of Debentures. Contemporaneously with the execution and delivery of this Trust Agreement, an Administrator, on behalf of the Trust, shall execute in accordance with Section 5.2 and deliver to the Depositor Common Securities Certificates, registered in the name of the Depositor, representing ________ Common Securities having an aggregate Liquidation Amount of $________ against payment by the Depositor of such amount to the Property Trustee. Contemporaneously therewith, an Administrator, on behalf of the Trust, shall subscribe to and purchase from the Depositor Debentures, registered in the name of the Property Trustee, on behalf of the Trust and having an aggregate principal amount equal to $________, and, in satisfaction of the purchase price 11 for such Debentures, the Property Trustee, on behalf of the Trust, shall deliver to the Depositor the sum of $________. In the event and to the extent any over-allotment option granted by the Trust and the Depositor pursuant to the Underwriting Agreement is exercised by the underwriters named therein, on each Closing Date after the date hereof, (a) an Administrator, on behalf of the Trust, shall execute in accordance with Section 5.2 and deliver to the Depositor Common Securities Certificates, registered in the name of the Depositor, representing an aggregate of up to ________ Common Securities having an aggregate Liquidation Amount of up to $________, against receipt of the purchase price per Common Security of $25 by the Property Trustee; and (b) an Administrator, on behalf of the Trust, shall subscribe to and purchase from the Depositor additional Debentures, registered in the name of the Property Trustee, on behalf of the Trust and having an aggregate principal amount of up to $________, and, in satisfaction of the purchase price for such additional Debentures, the Property Trustee, on behalf of the Trust, shall deliver to the Depositor an amount equal to the aggregate principal amount of the additional Debentures being purchased. Section 2.6. Declaration of Trust. The exclusive purposes and functions of the Trust are (a) to issue and sell Preferred Securities and Common Securities and use the proceeds from such sale to acquire the Debentures, and (b) to engage in those activities necessary, convenient or incidental thereto. The Depositor hereby appoints the Issuer Trustees as trustees of the Trust, to have all the rights, powers and duties to the extent set forth herein, and the Issuer Trustees hereby accept such appointment. The Property Trustee hereby declares that it will hold the Trust Property upon and subject to the conditions set forth herein for the benefit of the Trust and the Holders. Section 2.7. Authorization to Enter into Certain Transactions. (a) The Issuer Trustees and the Administrators shall conduct the affairs of the Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in paragraph (b) of this Section and Article VIII, and in accordance with the following provisions (i) and (ii), the Issuer Trustees and the Administrators shall have the authority to enter into all transactions and agreements determined by the Issuer Trustees or the Administrators to be appropriate in exercising the authority granted to the Issuer Trustees or the Administrators, as the case may be, under this Trust Agreement, and to perform all acts in furtherance thereof, including without limitation, the following: (i) Each Administrator shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters in accordance with the terms of this Trust Agreement: (A) the issuance and sale of the Preferred Securities and the Common Securities; (B) to acquire the Debentures with the proceeds of the sale of the Preferred Securities and the Common Securities; provided, however, that the Administrators shall cause legal title to the Debentures to be held of record in the name of the Property Trustee for the benefit of the Holders of the Trust Securities; 12 (C) the execution of the Trust Securities on behalf of the Trust in accordance with this Trust Agreement; (D) the negotiation of the terms, and execution and delivery, for and on behalf of the Trust, of the Underwriting Agreement providing for the sale of the Preferred Securities; (E) to cause the Trust to enter into, and to execute, deliver, file and perform on behalf of the Trust, the DTC Letter of Representations and such other agreements as may be necessary or desirable in connection with the purposes and function of the Trust; (F) assisting in the registration of the Preferred Securities under the Securities Act of 1933, as amended, and under state securities or blue sky laws, and the qualification of this Trust Agreement as a trust indenture under the Trust Indenture Act; (G) assisting in the listing of the Preferred Securities upon such securities exchange or exchanges as shall be determined by the Depositor and the registration of the Preferred Securities under the Securities Exchange Act of 1934, as amended, and the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing; (H) assisting in the sending of notices (other than notices of default) and other information regarding the Trust Securities and the Debentures to the Holders in accordance with this Trust Agreement; (I) the appointment of a Paying Agent, authenticating agent and Securities Registrar in accordance with this Trust Agreement; (J) unless otherwise determined by the Property Trustee or the Holders of at least a majority in aggregate Liquidation Amount of the Preferred Securities or as otherwise required by the Delaware Business Trust Act or the Trust Indenture Act, the execution on behalf of the Trust (either acting alone or together with any or all of the Administrators) of any documents that the Administrators have the power to execute pursuant to this Trust Agreement; (K) entering into such agreements and arrangements and taking any action incidental to the foregoing as the Issuer Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement; and (L) providing the Issuer Trustees with prompt written notice of the occurrence of a Special Event. 13 The Administrators shall have only those ministerial duties set forth herein with respect to accomplishing the purposes of the Trust and shall not be trustees or, to the fullest extent permitted by law, fiduciaries with respect to the Trust or the Holders. Unless otherwise determined by the Administrators, any Administrator is authorized to execute on behalf of the Trust any documents which the Administrators have the power and authority to execute pursuant to this Trust Agreement. (ii) The Property Trustee shall have the power, duty and authority to act on behalf of the Trust with respect to the following matters in accordance with the terms of this Trust Agreement: (A) the establishment and maintenance of the Payment Account; (B) the receipt of the Debentures; (C) the collection of interest, principal and any other payments made in respect of the Debentures in the Payment Account; (D) the distribution of amounts from the Payment Account owed to the Holders in respect of the Trust Securities; (E) the exercise of all of the rights, powers and privileges of a holder of the Debentures; (F) the sending of notices of default and other information regarding the Trust Securities and the Debentures to the Holders in accordance with this Trust Agreement; (G) the distribution of the Trust Property; (H) winding up the affairs of and liquidation of the Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; (I) after an Event of Default, the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and protect and conserve the Trust Property for the benefit of the Holders (without consideration of the effect of any such action on any particular Holder); and (J) engaging in such Ministerial Activities as shall be necessary, appropriate, convenient or incidental to effect the repayment of the Preferred Securities and the Common Securities to the extent the Debentures mature or are redeemed. (iii) The Property Trustee shall have the power and authority to act on behalf of the Trust with respect to any of the duties, liabilities, powers or authority of the Administrators set forth in Section 2.7(a)(i)(H), (I) and (K) herein, but shall not have a 14 duty to do any such act unless specifically requested to do so in writing by the Depositor, and shall then be fully protected in acting pursuant to such written request; and in the event of a conflict between the action of the Administrators and the action of the Property Trustee, the action of the Property Trustee shall prevail. The Property Trustee shall not transfer or assign its rights, title and interest in and to the Debentures to the Administrators or to the Delaware Trustee (if the Property Trustee does not also act as Delaware Trustee). (iv) Except as otherwise required by the Delaware Business Trust Act, the Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Property Trustee, the Issuer Trustees or the Administrators set forth herein. The Delaware Trustee shall be one of the trustees of the Trust for the sole and limited purpose of fulfilling the requirements of Section 3807(a) of the Delaware Business Trust Act. (b) So long as this Trust Agreement remains in effect, the Trust (or the Issuer Trustees or Administrators acting on behalf of the Trust) shall not undertake any business, activities or transaction except as expressly provided herein or contemplated hereby. In particular, neither the Issuer Trustees nor the Administrators shall cause the Trust to (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or interests therein, including to Holders, except as expressly provided herein, (iii) take any action that would cause the Trust to fail or cease to qualify as a "grantor trust" for United States Federal income tax purposes, (iv) take or consent to any action that would cause the Debentures to be treated as other than indebtedness of the Corporation for United States federal income tax purposes, (v) incur any indebtedness for borrowed money or issue any other debt or (vi) take or consent to any action that would result in the placement of a Lien on any of the Trust Property. The Administrators shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Trust or the Holders in their capacity as Holders. (c) In connection with the issuance and sale of the Preferred Securities, the Depositor shall have the right, duty and responsibility to assist the Trust with respect to, or effect on behalf of the Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects): (i) the preparation and filing by the Trust with the Commission and the execution on behalf of the Trust of a registration statement on the appropriate form in relation to the Preferred Securities, including any amendments thereto, and the taking of any action necessary or desirable to sell the Preferred Securities in a transaction or series of transactions pursuant thereto; (ii) the determination of the states in which to take appropriate action to qualify or register for sale all or part of the Preferred Securities and the determination of any and all such acts, other than actions which must be taken by or on behalf of the Trust, and the advice to the Issuer Trustees of actions they must take on behalf of the Trust, and 15 the preparation for execution and filing of any documents to be executed and filed by the Trust or on behalf of the Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such States in connection with the sale of the Preferred Securities; (iii) the preparation for filing by the Trust and execution on behalf of the Trust of an application to the New York Stock Exchange or any other national stock exchange or the Nasdaq National Market for listing upon notice of issuance of any Preferred Securities; (iv) the preparation for filing by the Trust with the Commission and the execution on behalf of the Trust of a registration statement on Form 8-A relating to the registration of the Preferred Securities under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended, including any amendments thereto; (v) the negotiation of the terms of, and the execution and delivery of, the Underwriting Agreement providing for the sale of the Preferred Securities; and (vi) the taking of any other actions deemed by the Depositor necessary or desirable to carry out any of the foregoing activities. (d) Notwithstanding anything herein to the contrary, the Administrators and the Issuer Trustees are authorized and directed to conduct the affairs of the Trust and to operate the Trust so that the Trust will not be deemed to be an "investment company" required to be registered under the 1940 Act, or taxed as a corporation for United States federal income tax purposes and so that the Debentures will be treated as indebtedness of the Depositor for United States federal income tax purposes. In this connection, each Administrator, the Property Trustee or the Holders of at least a majority in aggregate Liquidation Amount of the Common Securities are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that such Administrator, the Property Trustee or such Holders of Common Securities determine in their discretion to be necessary or desirable for such purposes, as long as such action does not adversely affect in any material respect the interests of the Holders of the Outstanding Preferred Securities. In no event shall the Administrator take any action pursuant to the preceding sentence or any other provision herein that would constitute discretionary control over the assets of the Trust for purposes of Section 3(21) of ERISA. In no event shall the Administrators or the Issuer Trustees be liable to the Trust or the Holders for any failure to comply with this Section that results from a change in law or regulation or in the interpretation thereof. Section 2.8. Assets of Trust. The assets of the Trust shall consist of the Trust Property. Section 2.9. Title to Trust Property. Legal title to all Trust Property shall be vested at all times in the Property Trustee (in its capacity as such) and shall be held and administered by the Property Trustee for the benefit of the Trust and the Holders in accordance with this Trust Agreement. 16 ARTICLE III PAYMENT ACCOUNT Section 3.1. Payment Account. (a) On or prior to the Closing Date, the Property Trustee shall establish the Payment Account. The Property Trustee and any agent of the Property Trustee shall have exclusive control and sole right of withdrawal with respect to the Payment Account for the purpose of making deposits in and withdrawals from the Payment Account in accordance with this Trust Agreement. All monies and other property deposited or held from time to time in the Payment Account shall be held by the Property Trustee in the Payment Account for the exclusive benefit of the Holders and for distribution as herein provided, including (and subject to) any priority of payments provided for herein. (b) The Property Trustee shall deposit in the Payment Account, promptly upon receipt, all payments of principal of or interest on, and any other payments or proceeds with respect to, the Debentures. Amounts held in the Payment Account shall not be invested by the Property Trustee pending distribution thereof. ARTICLE IV CERTAIN TERMS OF THE TRUST SECURITIES Section 4.1. Distributions. The term "Distributions" as used in this Trust Agreement includes such cash distributions and any such accumulated amounts, including Additional Interest and Additional Amounts, that are payable unless otherwise stated. (a) The Trust Securities represent undivided beneficial ownership interests in the Trust Property, and, as a practical matter, the Distributions on the Preferred Securities shall be payable at the rates and on the dates that payments of interest are made on the Debentures. Accordingly: (i) Distributions on the Trust Securities shall be cumulative, and will accumulate whether or not there are funds of the Trust available for the payment of Distributions. Distributions shall accrue from and shall be payable quarterly in arrears on , , and of each year, commencing on , except as provided below. If any date on which a Distribution is otherwise payable on the Trust Securities is not a Business Day, then the payment of such Distribution shall be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay) except that, if such Business Day is in the next succeeding calendar year, payment of such Distribution shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date (each date on which distributions are payable in accordance with this Section 4.1(a), a "Distribution Date"). 17 (ii) Unless a Debenture Event of Default shall have occurred and be continuing, the Depositor has the right under the Indenture to defer payments of interest by extending the interest payment period from time to time on the Debentures for a period of up to five years and not extending, in the aggregate, beyond the maturity date of the Debentures (each, an "Interest Payment Deferral Period"). During any such Interest Payment Deferral Period, no interest shall be due and payable on the Debentures. As a consequence of such deferral, Distributions on the Preferred Securities and the Common Securities will also be deferred and shall not be due and payable hereunder. During such Interest Payment Deferral Period, quarterly Distributions will accrue Additional Interest (to the extent permitted by applicable law). (iii) The Trust Securities and any Distributions in arrears for more than one quarter will accrue and compound interest at a rate of % per annum of the Liquidation Amount and the amount of accrued but unpaid Distributions, respectively. The amount of Distributions payable for any period less than a full period shall be computed on the basis of a 360-day year consisting of twelve 30-day months and will include the first day but exclude the last day of such period. Distributions payable for each full Distribution period will be computed by dividing the rate per annum by four. (iv) Distributions on the Trust Securities shall be made by the Property Trustee from the Payment Account and shall be payable on each Distribution Date only to the extent that the Trust has funds then on hand and available in the Payment Account for the payment of such Distributions. (b) Distributions on the Trust Securities with respect to a Distribution Date shall be payable to the Holders thereof as they appear on the Securities Register for the Trust Securities on the relevant record date, which with respect to Book-Entry Preferred Securities shall be one Business Day prior to the relevant Distribution Date, and, with respect to Preferred Securities not in book-entry-only form, the date 15 days prior to the relevant Distribution Date or, in the case of an Interest Payment Deferral Period as described in subclause (a)(ii) above, on the first record date after the end of the Interest Payment Deferral Period. Section 4.2. Redemption. (a) On each Debenture Redemption Date and on the stated maturity of the Debentures, the Trust will be required to redeem a Like Amount of Trust Securities at the Redemption Price. (b) Notice of redemption shall be given by the Property Trustee by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date to each Holder of Trust Securities to be redeemed, at such Holder's address appearing in the Security Register. All notices of redemption shall identify the Trust Securities being redeemed and state: (i) the Redemption Date; (ii) the Redemption Price; 18 (iii) the CUSIP number(s) of the Preferred Securities affected; (iv) if less than all the Outstanding Trust Securities are to be redeemed, the identification and the total Liquidation Amount of the particular Trust Securities to be redeemed; (v) that, on the Redemption Date, the Redemption Price will become due and payable upon each such Trust Security to be redeemed and that distributions thereon will cease to accrue on and after said date; and (vi) the place where the Trust Securities are to be surrendered for the payment of the Redemption Price. (c) The Preferred Securities and, subject to Section 9.5, the Common Securities redeemed on each Redemption Date shall be redeemed at the Redemption Price with the proceeds from the contemporaneous redemption of Debentures. Redemptions of the Trust Securities shall be made and the Redemption Price shall be payable on each Redemption Date only to the extent that the Trust has funds then on hand and available in the Payment Account for the payment of such Redemption Price. (d) If the Property Trustee gives a notice of redemption in respect of any Trust Securities, then, by 12:00 noon, New York City time, on the Redemption Date, subject to Section 4.2(c), the Property Trustee will, with respect to Book-Entry Preferred Securities, irrevocably deposit with the Clearing Agency for such Book-Entry Preferred Securities, to the extent available, funds sufficient to pay the applicable Redemption Price and will give such Clearing Agency irrevocable instructions and authority to pay the Redemption Price to the Holders thereof. If any Preferred Securities are not in book-entry form, the Property Trustee, subject to Section 4.2(c), will irrevocably deposit with the Paying Agent, to the extent available, funds sufficient to pay the applicable Redemption Price and will give the Paying Agent irrevocable instructions and authority to pay the Redemption Price to the Holders thereof upon surrender of their Preferred Securities Certificates. Notwithstanding the foregoing, Distributions payable on or prior to the Redemption Date for any Trust Securities called for redemption shall be payable to the Holders of such Trust Securities as they appear on the Register for the Trust Securities on the relevant record dates for the related Distribution Dates. If notice of redemption shall have been given and funds deposited as required, then immediately prior to the close of business on the date of such deposit, all rights of Holders holding Trust Securities so called for redemption will cease, except the right of such Holders to receive the Redemption Price and any Distribution payable on or prior to the Redemption Date, but without interest, and such Securities will cease to be outstanding. In the event that any date on which any Redemption Price is payable is not a Business Day, then payment of the Redemption Price payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay), except that, if such Business Day falls in the next calendar year, such payment will be made on the immediately preceding Business Day, in each case, with the same force and effect as if made on such date. In the event that payment of the Redemption Price in respect of any Trust Securities called for redemption is improperly withheld or refused and not paid either by the Trust or by the Depositor pursuant to the Guarantee, Distributions on such Trust Securities will continue to accrue, at the then applicable rate, from the Redemption Date 19 originally established by the Trust for such Trust Securities to the date such Redemption Price is actually paid, in which case the actual payment date will be the date fixed for redemption for purposes of calculating the Redemption Price. (e) Payment of the Redemption Price on the Trust Securities shall be made to the recordholders thereof as they appear on the Securities Register for the Trust Securities on the relevant record date, which with respect to Book-Entry Preferred Securities shall be one Business Day prior to the relevant Redemption Date, and, with respect to Preferred Securities not in book-entry-only form, the date 15 days prior to the relevant Redemption Date. (f) Subject to Section 4.3(a) and 9.5, if less than all the Outstanding Trust Securities are to be redeemed on a Redemption Date, then the aggregate Liquidation Amount of Trust Securities to be redeemed shall be allocated on a pro rata basis (based on Liquidation Amounts) between the Common Securities and the Preferred Securities. The particular Preferred Securities to be redeemed shall be selected on a pro rata basis (based upon Liquidation Amounts) not more than 60 days prior to the Redemption Date by the Property Trustee from the Outstanding Preferred Securities not previously called for redemption. The Property Trustee shall promptly notify the Securities Registrar in writing of the Preferred Securities selected for redemption and, in the case of any Preferred Securities selected for partial redemption, the Liquidation Amount thereof to be redeemed. For all purposes of this Trust Agreement, unless the context otherwise requires, all provisions relating to the redemption of Preferred Securities shall relate, in the case of any Preferred Securities redeemed or to be redeemed only in part, to the portion of the aggregate Liquidation Amount of Preferred Securities that has been or is to be redeemed. (g) If, at any time, a Special Event shall occur and be continuing, the Depositor, upon not less than 30 nor more than 60 days' notice, shall have the right, subject to the prior approval of the Regulator if required under its then-applicable capital guidelines or policies, to redeem the Debentures, in whole but not in part, for cash within 90 days following the occurrence of such Special Event, and, following such redemption, a Like Amount of Preferred Securities and Common Securities shall be redeemed by the Trust at the Redemption Price on a pro rata basis; provided, however, that if at the time there is available to the Depositor or the Trust the opportunity to eliminate, within such 90-day period, the Special Event by taking Ministerial Action, such as filing a form or making an election or pursuing some other similar reasonable measure that will have no adverse effect on the Trust, the Depositor or the Holders of the Trust Securities, then the Depositor or the Trust will pursue such measure in lieu of redemption. Section 4.3. Subordination of Common Securities. (a) Payment of Distributions on, the Redemption Price of, and the Liquidation Distribution in respect of, the Trust Securities, as applicable, shall be made, subject to Section 4.2(f), pro rata among the Common Securities and the Preferred Securities based on the aggregate Liquidation Amount of the Trust Securities; provided, however, that if on any Distribution Date or Redemption Date any Event of Default resulting from a Debenture Event of Default shall have occurred and be continuing, no payment of any Distribution on, or Redemption Price of, any Common Security, and no other payment on account of the redemption, liquidation or other acquisition of Common Securities, shall be made unless payment in full in cash of all accrued and unpaid Distributions on all Outstanding Preferred 20 Securities for all Distribution periods terminating on or prior thereto, or in the case of payment of the Redemption Price the full amount of such Redemption Price on all Outstanding Preferred Securities, shall have been made or provided for, and all funds immediately available to the Trust shall first be applied to the payment in full in cash of all Distributions on, or the Redemption Price of, Preferred Securities then due and payable. (b) In the case of the occurrence of any Event of Default resulting from any Debenture Event of Default, the Holder of Common Securities will be deemed to have waived any right to act with respect to any such Event of Default under this Trust Agreement until the effect of all such Events of Default with respect to the Preferred Securities have been cured, waived or otherwise eliminated. Until any such Event of Default under this Trust Agreement with respect to the Preferred Securities has been so cured, waived or otherwise eliminated, the Property Trustee shall act solely on behalf of the Holders of the Preferred Securities and not the Holder of the Common Securities, and only the Holders of the Preferred Securities will have the right to direct the Property Trustee to act on their behalf. Section 4.4. Payment Procedures. Payments in respect of the Preferred Securities shall be made by check mailed to the address of the Person entitled thereto as such address shall appear on the Securities Register or, if the Preferred Securities are held by a Clearing Agency, such Distributions shall be made to the Clearing Agency in immediately available funds, which shall credit the relevant Persons' accounts at such Clearing Agency on the applicable Distribution Dates. Payments in respect of the Common Securities shall be made in such manner as shall be mutually agreed between the Property Trustee and the Holder of the Common Securities. Section 4.5. Tax Returns and Reports. The Administrators shall prepare (or cause to be prepared), at the Depositor's expense, and file all United States federal, state and local tax and information returns and reports required to be filed by or in respect of the Trust. In this regard, the Administrators shall (a) prepare and file (or cause to be prepared and filed) the appropriate Internal Revenue Service form required to be filed in respect of the Trust in each taxable year of the Trust and (b) prepare and furnish (or cause to be prepared and furnished) to each Holder the appropriate Internal Revenue Service form required to be provided or the information required to be provided on such form. The Administrators shall provide the Depositor and each Issuer Trustee with a copy of all such returns and reports promptly after such filing or furnishing. The Trust and the Administrators shall comply with United States federal withholding and backup withholding tax laws and information reporting requirements with respect to any payments to Holders under the Trust Securities. Section 4.6. Payments Under Indenture or Pursuant to Direct Actions. Any amount payable hereunder to any Holder of Preferred Securities (and any Owner with respect thereto) shall be reduced by the amount of any corresponding payment such Holder (and Owner) has directly received pursuant to Section 5.8 of the Indenture or this Article IV or Section 5.13 of this Trust Agreement. 21 ARTICLE V TRUST SECURITIES CERTIFICATES Section 5.1. Initial Ownership. Upon the creation of the Trust and the contribution by the Depositor pursuant to Section 2.3 and until the issuance of the Trust Securities, and at any time during which no Trust Securities are Outstanding, the Depositor shall be the sole beneficial owner of the Trust. Section 5.2. The Trust Securities Certificates. (a) The Preferred Securities Certificates shall be issued in minimum denominations of $25 and integral multiples of $25 in excess thereof, and the Common Securities Certificates shall be issued in denominations of $25 and integral multiples of $25 in excess thereof. The Trust Securities Certificates shall be executed on behalf of the Trust by manual signature of at least one Administrator. Trust Securities Certificates bearing the manual signatures of individuals who were, at the time when such signatures shall have been affixed, authorized to sign on behalf of the Trust, shall be validly issued and entitled to the benefits of this Trust Agreement, notwithstanding that such individuals or any of them shall have ceased to be so authorized prior to the delivery of such Trust Securities Certificates or did not hold such offices at the date of delivery of such Trust Securities Certificates. A transferee of a Trust Securities Certificate shall become a Holder, and shall be entitled to the rights and subject to the obligations of a Holder hereunder, upon due registration of such Trust Securities Certificate in such transferee's name pursuant to Sections 5.4, 5.5 and 5.11. (b) Upon their original issuance, Preferred Securities Certificates shall be issued in the form of one or more Global Preferred Securities registered in the name of The Depository Trust Company, as Clearing Agency, or its nominee and deposited with The Depository Trust Company or a custodian for The Depository Trust Company for credit by The Depository Trust Company to the respective accounts of the Owners thereof (or such other accounts as they may direct). (c) A single Common Securities Certificate representing the Common Securities shall be issued to the Depositor in the form of a definitive Common Securities Certificate. Section 5.3. Execution and Delivery of Trust Securities Certificates. At the Closing Date and any Settlement Date, at least one Administrator shall cause Trust Securities Certificates, in an aggregate Liquidation Amount as provided in Sections 2.4 and 2.5, to be executed on behalf of the Trust and delivered to or upon the written order of the Depositor, signed by an authorized Officer thereof, without further corporate action by the Depositor, in authorized denominations. 22 Section 5.4. Book-Entry Preferred Securities. (a) Each Global Preferred Security issued under this Agreement shall be registered in the name of the Clearing Agency or a nominee thereof and delivered to such Clearing Agency or a nominee thereof or custodian therefor, and each such Global Preferred Security shall constitute a single Preferred Securities Certificate for all purposes of this Agreement. (b) Notwithstanding any other provision in this Trust Agreement, no Global Preferred Security may be exchanged in whole or in part for Preferred Securities Certificates registered, and no transfer of a Global Preferred Security in whole or in part may be registered, in the name of any Person other than the Clearing Agency for such Global Preferred Security or a nominee thereof unless (i) the Clearing Agency advises the Property Trustee in writing that the Clearing Agency is no longer willing or able to properly discharge its responsibilities with respect to the Global Preferred Security, and the Property Trustee is unable to locate a qualified successor, (ii) the Trust at its option advises the Depositary in writing that it elects to terminate the book-entry system through the Clearing Agency, or (iii) a Debenture Event of Default has occurred and is continuing. Upon the occurrence of any event specified in clause (i), (ii) or (iii) above, the Administrators shall notify the Clearing Agency and instruct the Clearing Agency to notify all Owners of Book-Entry Preferred Securities, the Delaware Trustee and the Administrators of the occurrence of such event and of the availability of the Definitive Preferred Securities Certificates to Owners of the Preferred Securities requesting the same. (c) If any Global Preferred Security is to be exchanged for other Preferred Securities Certificates or canceled in part, or if any other Preferred Securities Certificate is to be exchanged in whole or in part for Book-Entry Preferred Securities represented by a Global Preferred Security, then either (i) such Global Preferred Security shall be so surrendered for exchange or cancellation as provided in this Article V or (ii) the aggregate Liquidation Amount represented by such Global Preferred Security shall be reduced, subject to Section 5.2, or increased by an amount equal to the Liquidation Amount represented by that portion of the Global Preferred Security to be so exchanged or canceled, or equal to the Liquidation Amount represented by such other Preferred Securities Certificates to be so exchanged for Book-Entry Preferred Securities represented thereby, as the case may be, by means of an appropriate adjustment made on the records of the Securities Registrar, whereupon the Property Trustee, in accordance with the Applicable Procedures, shall instruct the Clearing Agency or its authorized representative to make a corresponding adjustment to its records. Upon surrender to the Administrators or the Securities Registrar of the Global Preferred Security or Securities by the Clearing Agency, accompanied by registration instructions, the Administrators, or any one of them, shall execute the Definitive Preferred Securities Certificates in accordance with the instructions of the Clearing Agency. None of the Securities Registrar, the Issuer Trustees or the Administrators shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be fully protected in relying on, such instructions. Upon the issuance of Definitive Preferred Securities Certificates, the Issuer Trustees and Administrators shall recognize the Holders of the Definitive Preferred Securities Certificates as Holders. The Definitive Preferred Securities Certificates shall be printed, lithographed or engraved or may be produced in any other manner as is reasonably acceptable to the Administrators, as evidenced by the execution thereof by the Administrators or any one of them. 23 (d) Every Preferred Securities Certificate executed and delivered upon registration or transfer of, or in exchange for or in lieu of, a Global Preferred Security or any portion thereof, whether pursuant to this Article V or Article IV or otherwise, shall be executed and delivered in the form of, and shall be, a Global Preferred Security, unless such Preferred Securities Certificate is registered in the name of a Person other than the Clearing Agency for such Global Preferred Security or a nominee thereof. (e) The Clearing Agency or its nominee, as registered owner of a Global Preferred Security, shall be the Holder of such Global Preferred Security for all purposes under this Agreement and the Global Preferred Security, and Owners with respect to a Global Preferred Security shall hold such interests pursuant to the Applicable Procedures. The Securities Registrar and the Property Trustee shall be entitled to deal with the Clearing Agency for all purposes of this Trust Agreement relating to the Global Preferred Securities (including the payment of the aggregate Liquidation Amount of and Distributions or directions by Owners of Book-Entry Preferred Securities represented thereby) as the sole Holder of the Book-Entry Preferred Securities represented thereby and shall have no obligations to the Owners thereof. Neither of the Property Trustee nor the Securities Registrar shall have any liability in respect of any transfers effected by the Clearing Agency. The rights of the Owners of the Book-Entry Preferred Securities shall be exercised only through the Clearing Agency and shall be limited to those established by law, the Applicable Procedures and agreements between such Owners and the Clearing Agency and/or the Clearing Agency Participants; provided, that, solely for the purpose of determining whether the Holders of the requisite amount of Preferred Securities have voted on any matter provided for in this Trust Agreement, so long as Definitive Preferred Security Certificates have not been issued, the Issuer Trustees may conclusively rely on, and shall be fully protected in relying on, any written instrument (including a proxy) delivered to the Property Trustee by the Clearing Agency setting forth the Owners' votes or assigning the right to vote on any matter to any other Persons either in whole or in part. Pursuant to the DTC Letter of Representations, unless and until Definitive Preferred Securities Certificates are issued pursuant to Section 5.4(b), the initial Clearing Agency will make book-entry transfers among the Clearing Agency Participants and receive and transmit payments on the Preferred Securities to such Clearing Agency Participants, and none of the Depositor, the Administrators or the Issuer Trustees shall have any responsibility or obligation with respect thereto. Section 5.5. Registration of Transfer and Exchange of Preferred Securities Certificates. (a) The Property Trustee shall keep or cause to be kept, at its Corporate Trust Office, a register or registers for the purpose of registering Trust Securities Certificates and transfers and exchanges of Preferred Securities Certificates (the "Securities Register") in which, the registrar designated by the Depositor (the "Securities Registrar"), subject to such reasonable regulations as it may prescribe, shall provide for the registration of Preferred Securities Certificates and Common Securities Certificates (subject to Section 5.11 in the case of the Common Securities Certificates) and registration of transfers and exchanges of Preferred Securities Certificates as herein provided. The Property Trustee is hereby appointed Securities Registrar for the purpose of registering Preferred Securities Certificates and (subject to Section 5.11) Common Securities Certificates and transfers and exchanges thereof as provided therein. 24 Upon surrender for registration of transfer of any Preferred Securities Certificate at the office or agency maintained pursuant to Section 5.9, the Administrators or any one of them shall execute and deliver to the Property Trustee, and the Property Trustee shall deliver in the name of the designated transferee or transferees, one or more new Preferred Securities Certificates in authorized denominations of a like aggregate Liquidation Amount dated the date of execution by such Administrator. The Securities Registrar shall not be required to register the transfer of any Preferred Securities that have been called for redemption. At the option of a Holder, Preferred Securities Certificates may be exchanged for other Preferred Securities Certificates in authorized denominations of the same class and of a like aggregate Liquidation Amount upon surrender of the Preferred Securities Certificates to be exchanged at the Corporate Trust Office. Every Preferred Securities Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Securities Registrar duly executed by the Holder or his attorney duly authorized in writing. Each Preferred Securities Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Property Trustee in accordance with its customary practice. No service charge shall be made for any registration of transfer or exchange of Preferred Securities Certificates, but the Trust may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of Preferred Securities Certificates. (b) Notwithstanding any other provision of this Agreement, transfers and exchanges of Preferred Securities Certificates and beneficial interests in a Global Preferred Security of the kinds specified in this Section 5.4 shall be made only in accordance with this Section 5.4. Section 5.6. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates. If (a) any mutilated Trust Securities Certificate shall be surrendered to the Securities Registrar, or if the Securities Registrar shall receive evidence to its satisfaction of the destruction, lose or theft of any Trust Securities Certificate and (b) there shall be delivered to the Securities Registrar and the Administrators such security or indemnity as may be required by them to save each of them harmless, then in the absence of notice that such Trust Securities Certificate shall have been acquired by a bona fide purchaser, the Administrators, or any one of them, on behalf of the Trust, shall execute and make available for delivery, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a new Trust Securities Certificate of like class, tenor and denomination. In connection with the issuance of any new Trust Securities Certificate under this Section, the Administrators or the Securities Registrar may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith. Any duplicate Trust Securities Certificate issued pursuant to this Section shall constitute conclusive evidence of an undivided beneficial ownership interest in the Trust Property, as if originally issued, whether or not the lost, stolen or destroyed Trust Securities Certificate shall be found at any time. 25 Section 5.7. Persons Deemed Holders. The Issuer Trustees, the Administrators and the Securities Registrar shall each treat the Person in whose name any Trust Securities Certificate shall be registered in the Securities Register as the owner of such Trust Securities Certificate for the purpose of receiving distributions and for all other purposes whatsoever, and none of the Issuer Trustees, the Administrators or the Securities Registrar shall be bound by any notice to the contrary. Section 5.8. Access to List of Holders' Names and Addresses. At any time when the Property Trustee is not also acting as the Securities Registrar, the Administrators or the Depositor shall furnish or cause to be furnished to each Issuer Trustee promptly upon request (a), a list, in such form as the Property Trustee may reasonably require, of the names and addresses of the Holders as of the most recent relevant record date (as set forth in Section 4.1(b)) and (b) such other information as such Issuer Trustee may reasonably require in order to enable such Issuer Trustee to discharge its obligations under this Trust Agreement, in each case to the extent such information is in the possession or control of the Administrators or the Depositor and is not identical to a previously supplied list or has not otherwise been received by the Issuer Trustees. The rights of Holders to communicate with other Holders with respect to their rights under this Trust Agreement or under the Trust Securities, and the corresponding rights of the Property Trustee shall be as provided in the Trust Indenture Act. Each Holder, by receiving and holding a Trust Securities Certificate, and each Owner shall be deemed to have agreed not to hold the Depositor, the Property Trustee or the Administrators accountable by reason of the disclosure of its name and address, regardless of the source from which such information was derived. Section 5.9. Maintenance of Office or Agency. The Property Trustee shall designate, with the consent of the Administrators (which shall not be unreasonably withheld), an office or offices or agency or agencies where Trust Securities Certificates may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Issuer Trustees in respect of the Trust Securities Certificates may be served. The Property Trustee initially designates the Corporate Trust Office, Attn: Corporate Trust Administration, as its principal corporate trust office for such purposes. The Property Trustee shall give prompt written notice to the Depositor and to the Holders of any change in the location of the Securities Register or any such office or agency. Section 5.10. Appointment of Paying Agent. The Paying Agent shall make distributions to Holders from the Payment Account and shall report the amounts of such distributions to the Property Trustee and the Administrators. Any Paying Agent shall have the revocable power to withdraw funds from the Payment Account for the purpose of making the distributions referred to above. The Property Trustee may revoke such power and remove the Paying Agent if it determines in its sole discretion that the Paying Agent shall have failed to perform its obligations under this Trust Agreement in any material respect. The Paying Agent shall initially be the Property Trustee. Any Person acting as Paying Agent shall be permitted to resign as Paying Agent upon 30 days written notice to the Property 26 Trustee and the Depositor. In the event that the Property Trustee shall no longer be the Paying Agent or a successor Paying Agent shall resign or its authority to act be revoked, the Property Trustee shall appoint a successor that is reasonably acceptable to the Administrators to act as Paying Agent (which shall be a bank or trust company). Such successor Paying Agent or any additional Paying Agent shall execute and deliver to the Issuer Trustees an instrument in which such successor Paying Agent or additional Paying Agent shall agree with the Issuer Trustees that as Paying Agent, such successor Paying Agent or additional Paying Agent will hold all sums, if any, held by it for payment to the Holders in trust for the benefit of the Holders entitled thereto until such sums shall be paid to such Holders. The Paying Agent shall return all unclaimed funds to the Property Trustee and upon removal of a Paying Agent such Paying Agent shall also return all funds in its possession to the Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall apply, to the extent applicable, to any other paying agent appointed hereunder. Any reference in this Agreement to the Paying Agent shall include any co-paying agent unless the context requires otherwise. Section 5.11. Ownership of Common Securities by Depositor. At each Closing Date, the Depositor shall acquire and retain beneficial and record ownership of the Common Securities. To the fullest extent permitted by law, other than transactions permitted by Section 10.5 of the Indenture, any attempted transfer of the Common Securities shall be void. The Administrators shall cause each Common Securities Certificate issued to the Depositor to contain a legend stating "THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION. THIS CERTIFICATE IS NOT TRANSFERABLE OTHER THAN IN ACCORDANCE WITH THE TRUST AGREEMENT (AS DEFINED BELOW)." Section 5.12. Notices to Clearing Agency. To the extent that a notice or other communication to the Owners is required under this Trust Agreement, for so long as Preferred Securities are represented by a Global Preferred Security, the Administrators and the Issuer Trustees shall give all such notices and communications specified herein to be given to Owners to the Clearing Agency, and shall have no obligations to the Owners. Section 5.13. Rights of Holders. (a) The legal title to the Trust Property is vested exclusively in the Property Trustee (in its capacity as such) in accordance with Section 2.9, and the Holders shall not have any right or title therein other than the undivided beneficial ownership interests in the Trust Property conferred by their Trust Securities and they shall have no right to call for any partition or division of property, profits or rights of the Trust except as described below. The Trust Securities shall be personal property giving only the rights specifically set forth therein and in this Trust Agreement. By acceptance of a beneficial interest in the Trust Securities, Holders agree to treat the Debentures as indebtedness for all United States tax purposes. By its acceptance and holding 27 of a beneficial interest in the Preferred Securities or the Common Securities, each Holder will be deemed to have represented that either (x) it is not an employee benefit plan (within the meaning of Section 3(3) of ERISA) subject to ERISA, a plan (within the meaning of Section 4975(e)(1) of the Code) subject to Section 4975 of the Code, a plan subject to provisions under applicable federal, state, local, non-U.S. or other laws or regulations that are similar to the provisions of Title I of ERISA or Section 4975 of the Code ("Similar Laws"), or any entity whose underlying assets include "plan assets" by reason of any such employee benefit plan's or plan's investment in the entity and is not purchasing and holding such Preferred Securities or Common Securities or interest therein on behalf of or with "plan assets" of any such employee benefit plan or plan or (y) its purchase, holding and disposition of the Preferred Securities or Common Securities or interest therein (and accompanying interests in, and potential transactions involving, the Debentures and the Guarantee) (i) is eligible for the exemptive relief available under Prohibited Transaction Class Exemption 96-23, 95-60, 91-38, 90-1 or 84-14 (or some other applicable class or individual exemption) or (ii) will not result in a prohibited transaction under ERISA or the Code or its equivalent under applicable Similar Laws. The Trust Securities shall have no preemptive or similar rights and when issued and delivered to Holders against payment of the purchase price therefor will be fully paid and nonassessable by the Trust. The Holders of the Trust Securities, in their capacities as such, shall be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. (b) For so long as any Preferred Securities remain Outstanding, if, upon a Debenture Event of Default, the Indenture Trustee fails or the holders of not less than 25% in aggregate principal amount of the outstanding Debentures fail to declare the principal of all of the Debentures to be immediately due and payable, the Holders of at least 25% in aggregate Liquidation Amount of the Preferred Securities then Outstanding shall have such right by a notice in writing to the Depositor and the Indenture Trustee; and upon any such declaration such principal amount of and the accrued interest on all of the Debentures shall become immediately due and payable; provided, that the payment of principal and interest on such Debentures shall remain subordinated to the extent provided in the Indenture. At any time after such a declaration of acceleration with respect to the Debentures has been made and before a judgment or decree for payment of the money due has been obtained by the Indenture Trustee as provided in the Indenture, the Holders of a majority in aggregate Liquidation Amount of the Preferred Securities, by written notice to the Depositor and the Indenture Trustee, may rescind and annul such declaration and its consequences if: (i) the Depositor has paid or deposited with the Indenture Trustee a sum sufficient to pay: (A) all overdue interest on all of the Debentures, (B) the principal of (and premium, if any, on) any Debentures which have become due otherwise than by such declaration of acceleration and interest thereon at the rate or rates prescribed therefor in the Debentures, and (C) to the extent that payment of such interest is lawful, Additional Interest, and 28 (D) all sums paid or advanced by the Indenture Trustee under the Indenture and the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee, its agents and counsel; and (ii) such rescission would not conflict with any judgment or decree of any governmental or regulatory authority; and (iii) all Events of Default with respect to the Debentures, other than the non-payment of the principal of or the interest on the Debentures which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13 of the Indenture. The Holders of a majority in aggregate Liquidation Amount of the Preferred Securities may, on behalf of the Holders of all the Preferred Securities, waive any past default under the Indenture, except a default in the payment of principal or interest (unless such default has been cured and a sum sufficient to pay all matured installments of interest and principal due otherwise than by acceleration has been deposited with the Indenture Trustee) or a default in respect of a covenant or provision which under the Indenture cannot be modified or amended without the consent of the holder of each outstanding Debenture affected. No such waiver or rescission shall affect any subsequent default or impair any right consequent thereon. Upon receipt by the Property Trustee of written notice declaring such an acceleration, or rescission and annulment thereof, by Holders of the Preferred Securities all or part of which is represented by Book-Entry Preferred Securities Certificates, a record date shall be established for determining Holders of Outstanding Preferred Securities entitled to join in such notice, which record date shall be at the close of business on the day the Property Trustee receives such notice. The Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to join in such notice, whether or not such Holders remain Holders after such record date; provided, that, unless such declaration of acceleration, or rescission and annulment, as the case may be, shall have become effective by virtue of the requisite percentage having joined in such notice prior to the day which is 90 days after such record date, such notice of declaration of acceleration, or rescission and annulment, as the case may be, shall automatically and without further action by any Holder be canceled and of no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after expiration of such 90-day period, a new written notice of declaration of acceleration, or rescission and annulment thereof, as the case may be, that is identical to a written notice which has been canceled pursuant to the proviso to the preceding sentence, in which event a new record date shall be established pursuant to the provisions of this Section 5.13(b). (c) For so long as any Preferred Securities remain Outstanding, to the fullest extent permitted by law and subject to the terms of this Trust Agreement and the Indenture, upon a Debenture Event of Default specified in Section 5.1(a) or 5.1(b) of the Indenture, any Holder of Preferred Securities shall have the right to institute a proceeding directly against the Depositor, pursuant to the Indenture, for enforcement of payment when due to such Holder of the principal amount of and interest on Debentures having a principal amount equal to the aggregate Liquidation Amount of the Preferred Securities of such Holder (a "Direct Action"). In connection with any such Direct Action, the Holder of the Common Securities will be subrogated to the rights of any Holder of the Preferred Securities to the extent of any payment 29 made by the Depositor to such Holder of Preferred Securities as a result of such Direct Action. Except as set forth in subsection (b) of this Section 5.13 and this subsection (c), the Holders of Preferred Securities shall have no right to exercise directly any right or remedy available to the holders of, or in respect of, the Debentures. (d) Except as otherwise provided in subsections (a), (b) and (c) of this Section 5.13, the Holders of at least a majority in aggregate Liquidation Amount of the Preferred Securities may, on behalf of the Holders of all the Preferred Securities, waive any past default or Event of Default and its consequences. Upon such waiver, any such default or Event of Default shall cease to exist, and any default or Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Trust Agreement, but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. ARTICLE VI ACTS OF HOLDERS; MEETINGS; VOTING Section 6.1. Limitations on Voting Rights. (a) Except as provided in this Trust Agreement and in the Indenture and as otherwise required by law, no Holder of Preferred Securities shall have any right to vote or in any manner otherwise control the administration, operation and management of the Trust or the obligations of the parties hereto, nor shall anything herein set forth, or contained in the terms of the Trust Securities Certificates, be construed so as to constitute the Holders from time to time as partners or members of an association. (b) So long as any Debentures are held by the Property Trustee, the Issuer Trustees shall not (i) direct the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or executing any trust or power conferred on the Property Trustee with respect to such Debentures, (ii) waive any past default which is waivable under Section 5.13 of the Indenture, (iii) exercise any right to rescind or annul a declaration that the principal of all the Debentures shall be due and payable or (iv) consent to any amendment or modification under Section 10.2 or termination of the Indenture or any amendment, modification or termination of the Debentures, where such consent shall be required, without, in each case, obtaining the prior approval of the Holders of at least a majority in aggregate Liquidation Amount of all Outstanding Preferred Securities; provided, however, that where a consent under the Indenture would require the consent of each Holder of Debentures affected thereby, no such consent shall be given by the Property Trustee without the prior written consent of each Holder of Preferred Securities. The Property Trustee shall not revoke any action previously authorized or approved by a vote of the Holders of Preferred Securities, except by a subsequent vote of the Holders of Preferred Securities. The Property Trustee shall notify all Holders of the Preferred Securities of any notice of default received from the Indenture Trustee with respect to the Debentures. In addition to obtaining the foregoing approvals of the Holders of the Preferred Securities, prior to taking any of the foregoing actions, the Issuer Trustees shall, at the expense of the Depositor, obtain an Opinion of Counsel experienced in such matters to the effect that the Trust will not be classified as an association taxable as a corporation for United States Federal income tax purposes on account of such action. 30 (c) If any proposed amendment to the Trust Agreement provides for, or the Issuer Trustees otherwise propose to effect, (i) any action that would adversely affect in any material respect the powers, preferences or special rights of the Preferred Securities, whether by way of amendment to the Trust Agreement or otherwise, or (ii) the dissolution, winding-up or termination of the Trust, other than pursuant to the terms of this Trust Agreement, then the Holders of Outstanding Preferred Securities as a class will be entitled to vote on such amendment or proposal and such amendment or proposal shall not be effective except with the approval of the Holders of at least a majority in aggregate Liquidation Amount of the Outstanding Preferred Securities. Notwithstanding any other provision of this Trust Agreement, no amendment to this Trust Agreement may be made if, as a result of such amendment, the Trust would be classified as an association taxable as a corporation for United States federal income tax purposes. Section 6.2. Notice of Meetings. Notice of all meetings of the Holders of Preferred Securities, stating the time, place and purpose of the meeting, shall be given by the Property Trustee pursuant to Section 10.8 to each Holder of Preferred Securities of record, at his registered address, at least 15 days and not more than 90 days before the meeting. At any such meeting, any business properly before the meeting may be so considered whether or not stated in the notice of the meeting. Any adjourned meeting may be held as adjourned without further notice. Section 6.3. Meetings of the Holders of Preferred Securities. No annual meeting of Holders is required to be held. The Property Trustee, however, shall call a meeting of Holders to vote on any matter upon the written request of the Holders of record of 25% in aggregate Liquidation Amount of the Preferred Securities and the Administrators or the Property Trustee may, at any time in their discretion, call a meeting of Holders of Preferred Securities to consider and act on any matters as to which Holders of Preferred Securities are entitled to act under the terms of this Trust Agreement or the rules of any national stock exchange on which the Preferred Securities are listed or admitted for trading. Unless the Delaware Business Trust Act, this Trust Agreement, the Trust Indenture Act or the listing rules of any national stock exchange on which the Preferred Securities are then listed or trading require otherwise, the Administrators, in their sole discretion, shall establish all provisions, other than those specifically provided for in this Trust Agreement, relating to meetings of Holders of Trust Securities, including notice of the time, place or purpose of any meeting at which any matter is to be voted on by any Holder of Trust Securities, waiver of any such notice, action by consent without a meeting, the establishment of a record date, quorum requirements, voting in person or by proxy or any other matter with respect to the exercise of any such right to vote. The Holders of record of 50% of the Outstanding Preferred Securities (based upon their Liquidation Amount), present in person or by proxy, shall constitute a quorum at any meeting of Holders of the Preferred Securities. 31 If a quorum is present at a meeting, an affirmative vote by the Holders of record present, in person or by proxy, holding a majority of the Preferred Securities (based upon their Liquidation Amount) held by the Holders of record present, either in person or by proxy, at such meeting shall constitute the action of the Holders, unless this Trust Agreement requires a greater number of affirmative votes. Section 6.4. Voting Rights. Holders shall be entitled to one vote for each $25 of Liquidation Amount represented by their Outstanding Trust Securities in respect of any matter as to which such Holders are entitled to vote. Section 6.5. Proxies, Etc. At any meeting of Holders, each Holder may authorize any Person to act for it by proxy on all matters in which a Holder is entitled to participate, including, without limitation, waiving notice of any meeting, or voting or participating at a meeting provided that no proxy shall be voted at any meeting unless it shall have been placed on file with the Administrators, or with such other officer or agent of the Trust as the Administrators may direct, for verification prior to the time at which such vote shall be taken. Pursuant to a resolution of the Property Trustee, proxies may be solicited in the name of the Property Trustee or one or more Officers of the Property Trustee. Only Holders of record and their proxies shall be entitled to vote. When Trust Securities are held jointly by several persons, any one of them may vote at any meeting in person or by proxy in respect of such Trust Securities, but if more than one of them shall be present at such meeting in person or by proxy, and such joint owners or their proxies so present disagree as to any vote to be cast, such vote shall not be received in respect of such Trust Securities. A proxy purporting to be executed by or on behalf of a Holder shall be deemed valid unless challenged at or prior to its exercise, and the burden of proving invalidity shall rest on the challenger. No proxy shall be valid more than three years after its date of execution. Except as otherwise provided herein, all matters relating to the giving, voting or validity of proxies shall be governed by the General Corporation Law of the State of Delaware relating to proxies, and judicial interpretations thereunder, as if the Trust were a Delaware corporation and the Holders were stockholders of a Delaware corporation. Section 6.6. Holder Action by Written Consent. Any action which may be taken by Holders at a meeting may be taken without a meeting, without a vote and without prior notice if Holders holding a majority of all Outstanding Trust Securities (based upon their Liquidation Amount) entitled to vote in respect of such action (or such larger proportion thereof as shall be required by any express provision of this Trust Agreement) shall consent to the action in writing. Section 6.7. Record Date for Voting and Other Purposes. For the purposes of determining the Holders who are entitled to notice of and to vote at any meeting or by written consent, or to participate in any distribution on the Trust Securities in respect of which a record date is not otherwise provided for in this Trust Agreement, or for the purpose of any other action, the Administrators may from time to time fix a date, not more than 32 90 days prior to the date of any meeting of Holders or the payment of a distribution or other action, as the case may be, as a record date for the determination of the identity of the Holders of record for such purposes. Section 6.8. Acts of Holders. Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Trust Agreement to be given, made or taken by Holders may be embodied in and evidenced by one or more substantially similar instruments signed by such Holders in person or by an agent duly appointed in writing; and, except as otherwise expressly provided herein, such action shall become effective when such instrument or instruments are delivered to the Property Trustee. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Trust Agreement and (subject to Section 8.1) conclusive in favor of the Issuer Trustee and the Administrators, if made in the manner provided in this Section. The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which any Trustee receiving the same deems sufficient. The ownership of Trust Securities shall be proved by the Securities Register. Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Trust Security shall bind every future Holder of the same Trust Security and the Holder of every Trust Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Issuer Trustees, the Administrators or the Trust in reliance thereon, whether or not notation of such action is made upon such Trust Security. Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Trust Security may do so with regard to all or any part of the Liquidation Amount of such Trust Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such Liquidation Amount. If any dispute shall arise among the Holders, the Administrators and the Issuer Trustees with respect to the authenticity, validity or binding nature of any request, demand, authorization, direction, consent, waiver or other Act of such Holder, Administrator or Issuer Trustee under this Article VI, then the determination of such matter by the Property Trustee shall be conclusive with respect to such matter. 33 Section 6.9. Inspection of Records. Upon reasonable notice to the Administrators and the Property Trustee, the records of the Trust shall be open to inspection by Holders during normal business hours for any purpose reasonably related to such Holder's interest as a Holder. ARTICLE VII REPRESENTATIONS AND WARRANTIES Section 7.1. Representations and Warranties of the Issuer Trustees. The Property Trustee and the Delaware Trustee, each severally on behalf of and as to itself, hereby represents and warrants for the benefit of the Depositor and the Holders that: (a) the Property Trustee is a national banking association duly organized, validly existing and in good standing under the laws of the United States with trust powers; (b) the Property Trustee meets the applicable eligibility requirements set forth in Section 8.7, has full corporate and trust power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust Agreement; (c) the Delaware Trustee is a Delaware corporation duly organized, validly existing and in good standing in the State of Delaware; (d) the Delaware Trustee meets the applicable eligibility requirements set forth in Section 8.7, has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust Agreement; (e) this Trust Agreement has been duly authorized, executed and delivered by the Issuer Trustees and constitutes the valid and legally binding agreement of each of the Issuer Trustees enforceable against each of them in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; (f) the execution, delivery and performance of this Trust Agreement have been duly authorized by all necessary corporate or other action on the part of the Issuer Trustees and do not require any approval of stockholders of the Property Trustee and the Delaware Trustee and such execution, delivery and performance will not (i) violate the charter or by-laws of either Issuer Trustee, (ii) violate any provision of, or constitute, with or without notice or lapse of time, a default under, or result in the creation or imposition of, any Lien on any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit agreement, license or other agreement or instrument to which either Issuer Trustee is a party or by which it is bound, or (iii) violate any law, governmental rule or regulation of the United States or the State of Delaware, as the case may be, governing the corporate, banking, trust or general powers of the 34 Property Trustee or the Delaware Trustee (as appropriate in context) or any order, judgment or decree applicable to the Property Trustee or the Delaware Trustee; (g) neither the authorization, execution or delivery by the Property Trustee or the Delaware Trustee of this Trust Agreement nor the consummation of any of the transactions by the Property Trustee or the Delaware Trustee, as the case may be, contemplated herein or therein requires the consent or approval of, the giving of notice to, the registration with or the taking of any other action with respect to any governmental authority or agency under any existing Federal law governing the banking, trust or general powers of the Property Trustee or the Delaware Trustee (as appropriate in context) or under the laws of the United States or the State of Delaware; and (h) there are no proceedings pending or, to the best of each of the Property Trustee's and the Delaware Trustee's knowledge, threatened against or affecting the Property Trustee or the Delaware Trustee in any court or before any governmental authority, agency or arbitration board or tribunal which, individually or in the aggregate, would materially and adversely affect the Trust or would question the right, power and authority of the Property Trustee or the Delaware Trustee, as the case may be, to enter into or perform its obligations as one of the Issuer Trustees under this Trust Agreement. Section 7.2. Representations and Warranties of Depositor. The Depositor hereby represents and warrants for the benefit of the Holders that: (a) the Trust Securities Certificates issued at each Closing Date on behalf of the Trust have been duly authorized and will have been, duly and validly executed, issued and delivered by at least one Administrator pursuant to the terms and provisions of, and in accordance with the requirements of, this Trust Agreement, and the Holders will be, as of each such date, entitled to the benefits of this Trust Agreement; and (b) there are no taxes, fees or other governmental charges payable by the Trust (or the Issuer Trustees on behalf of the Trust) under the laws of the State of Delaware or any political subdivision thereof in connection with the execution, delivery and performance by the Property Trustee or the Delaware Trustee, as the case may be, of this Trust Agreement. 35 ARTICLE VIII THE ISSUER TRUSTEES; THE ADMINISTRATORS Section 8.1. Certain Duties and Responsibilities. (a) The duties and responsibilities of the Issuer Trustees and the Administrators shall be as provided by this Trust Agreement and, in the case of the Property Trustee, subject to the Trust Indenture Act. Notwithstanding the foregoing, no provision of this Trust Agreement shall require any of the Issuer Trustees or the Administrators to expend or risk their own funds or otherwise incur any financial liability in the performance of any of their duties hereunder, or in the exercise of any of their rights or powers, if they shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided, every provision of this Trust Agreement relating to the conduct or affecting the liability of or affording protection to the Issuer Trustees or the Administrators shall be subject to the provisions of this Section. Nothing in this Trust Agreement shall be construed to release an Issuer Trustee or an Administrator from liability for its own gross negligent action, its own gross negligent failure to act, or its own willful misconduct. To the extent that, at law or in equity, an Administrator or Issuer Trustee has duties (including fiduciary duties) and liabilities relating thereto to the Trust or to the Holders, such Administrator or the Issuer Trustee shall not be liable to the Trust or to any Holder for its good faith reliance on the provisions of this Trust Agreement. The provisions of this Trust Agreement, to the extent that they restrict the duties and liabilities of the Administrators or Issuer Trustees otherwise existing at law or in equity, are agreed by the Depositor and the Holders to replace such other duties and liabilities of the Administrators and Issuer Trustees. (b) All payments made by the Property Trustee or a Paying Agent in respect of the Trust Securities shall be made only from the revenue and proceeds from the Trust Property and only to the extent that there shall be sufficient revenue or proceeds from such Trust Property to enable the Property Trustee or a Paying Agent to make payments in accordance with the terms hereof. Each Holder, by its acceptance of a Trust Security, agrees that it will look solely to the revenue and proceeds from the Trust Property to the extent legally available for distribution to it as herein provided and that none of the Administrators or the Issuer Trustees are personally liable to it for any amount distributable in respect of any Trust Security or for any other liability in respect of any Trust Security. This Section 8.1(b) does not limit the liability of the Issuer Trustees or the Administrators expressly set forth elsewhere in this Trust Agreement and, in the case of the Property Trustee, in the Trust Indenture Act. (c) If an Event of Default has occurred and is continuing, the Property Trustee shall enforce this Trust Agreement for the benefit of the Holders. (d) The Property Trustee, before the occurrence of any Event of Default and after the curing of all Events of Default that may have occurred, shall undertake to perform only such duties as are specifically set forth in this Trust Agreement (including pursuant to Section 10.10), and no implied covenants shall be read into this Trust Agreement against the Property Trustee. If an Event of Default has occurred (that has not been cured or waived pursuant to Section 5.13), the Property Trustee shall exercise such of the rights and powers vested in it by this Trust 36 Agreement and use the same degree of care and skill in its exercise thereof as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. (e) No provision of this Trust Agreement shall be construed to relieve the Property Trustee from liability for its own negligent action or its own negligent failure to act, except that: (i) the Property Trustee shall not be liable for any error of judgment made in good faith by an authorized officer of the Property Trustee, unless it shall be proved that the Property Trustee was negligent in ascertaining the pertinent facts; (ii) the Property Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of not less than a majority in aggregate Liquidation Amount of the Preferred Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Property Trustee, or exercising any trust or power conferred upon the Property Trustee under this Trust Agreement; (iii) the Property Trustee's sole duty with respect to the custody, safe keeping and physical preservation of the Debentures and the Payment Account shall be to deal with such Property in similar manner as the Property Trustee deals with similar property for its own account, subject to the protections and limitations on liability afforded to the Property Trustee under this Trust Agreement and the Trust Indenture Act; (iv) the Property Trustee shall not be liable for any interest on any money received by it except as it may otherwise agree with the Depositor; and money held by the Property Trustee need not be segregated from other funds held by it except in relation to the Payment Account maintained by the Property Trustee pursuant to Section 3.1 and except to the extent otherwise required by law; (v) the Property Trustee shall not be responsible for monitoring the compliance by the Delaware Trustee, the Administrators or the Depositor with their respective duties under this Trust Agreement, nor shall the Property Trustee be liable for the default or misconduct of the Delaware Trustee, the Administrators or the Depositor; (vi) prior to the occurrence of any Event of Default and after the curing or waiving of all such Events of Default that may have occurred: (A) the duties and obligations of the Property Trustee shall be determined solely by the express provisions of this Trust Agreement (including pursuant to Section 10.10), and the Property Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Trust Agreement (including pursuant to Section 10.10); and (B) in the absence of bad faith on the part of the Property Trustee, the Property Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Property Trustee and conforming to the 37 requirements of this Trust Agreement; but in the case of any such certificates or opinions that by any provision hereof or of the Trust Indenture Act are specifically required to be furnished to the Property Trustee, the Property Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Trust Agreement; and (vii) subject to Section 8.1(c), no provision of this Trust Agreement shall require the Property Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Property Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of the Trust Agreement or indemnity reasonably satisfactory to it against such risk or liability is not reasonably assured to it. (f) The Administrators shall not be responsible for monitoring the compliance by the Issuer Trustees or the Depositor with their respective duties under this Trust Agreement, nor shall either Administrator be liable for the default or misconduct of any other Administrator, the Issuer Trustees or the Depositor. (g) No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Issuer Trustee or Administrator to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to any Issuer Trustee or Administrator shall be construed to be a duty. Section 8.2. Certain Notices. Within 90 days after the occurrence of any Event of Default actually known to the Property Trustee, the Property Trustee shall transmit, in the manner and to the extent provided in Section 10.8, notice of such Event of Default to the Holders, the Administrators and the Depositor, unless such Event of Default shall have been cured or waived. Within five Business Days after the receipt of notice of the Depositor's exercise of its right to defer the payment of interest on the Debentures pursuant to the Indenture, the Property Trustee shall transmit, in the manner and to the extent provided in Section 10.8, notice of such exercise to the Holders and the Administrators, unless such exercise shall have been revoked. Section 8.3. Certain Rights of Property Trustee. Subject to the provisions of Section 8.1: (a) the Property Trustee may rely and shall be protected in acting or refraining from acting in good faith upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond, debenture, note, other evidence 38 of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement, the Property Trustee is required to decide between alternative courses of action or (ii) in construing any of the provisions of this Trust Agreement, the Property Trustee finds the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the Depositor as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten Business Days after it has delivered such notice, or such reasonably shorter period of time set forth in such notice (which to the extent practicable shall not be less than two Business Days), it may, but shall be under no duty to, take or refrain from taking such action not inconsistent with this Trust Agreement as it shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own bad faith, negligence or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers Certificate; (d) any direction or act of an Administrator contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrator and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any rerecording, refiling or reregistration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; provided, that nothing contained in this Section 8.3(g) shall be taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; 39 (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents or attorneys, provided, that the Property Trustee shall be responsible for its own negligence or recklessness with respect to selection of any agent or attorney appointed by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder the Property Trustee (i) may request instructions from the Holders of the Trust Securities which instructions may only be given by the Holders of the same proportion in aggregate Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under the terms of the Trust Securities in respect of such remedy, right or action, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; and (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty. Section 8.4. Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Trust Securities Certificates shall be taken as the statements of the Depositor, and none of the Issuer Trustees and the Administrators assume any responsibility for their correctness. The Issuer Trustees and the Administrators shall not be accountable for the use or application by the Depositor of the proceeds of the Debentures. 40 Section 8.5. May Hold Securities. Any Administrator, any Issuer Trustee or any other agent of any Trustee or the Trust, in its individual or any other capacity, may become the owner or pledgee of Trust Securities and, subject to Sections 8.8 and 8.13 and except as provided in the definition of the term "Outstanding" in Article I, may otherwise deal with the Trust with the same rights it would have if it were not an Administrator, Issuer Trustee or such other agent. Section 8.6. Compensation; Indemnity; Fees. Pursuant to the Indenture, the Depositor, as borrower, hereby agrees: (a) to pay to each Issuer Trustee and Paying Agent from time to time such reasonable compensation for all services rendered by it hereunder as may be agreed by the Depositor and each Issuer Trustee and Paying Agent, as applicable, from time to time (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (b) except as otherwise expressly provided herein, to reimburse each Issuer Trustee upon its written request for all documented reasonable expenses, disbursements and advances incurred or made by such Issuer Trustee in accordance with any provision of this Trust Agreement (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and (c) to the fullest extent permitted by applicable law, to indemnify and hold harmless (i) each Issuer Trustee, (ii) each Administrator, (iii) each Paying Agent, (iv) any Affiliate of any Issuer Trustee, (v) any officer, director, shareholder, employee, representative or agent of any Issuer Trustee, and (vi) any employee or agent of the Trust (referred to herein as an "Indemnified Person") from and against any loss, damage, liability, tax, penalty, expense or claim of any kind or nature whatsoever incurred by such Indemnified Person by reason of the creation, operation or termination of the Trust or any act or omission performed or omitted by such Indemnified Person in good faith on behalf of the Trust and in a manner such Indemnified Person reasonably believed to be within the scope of authority conferred on such Indemnified Person by this Trust Agreement, except that no Indemnified Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Indemnified Person by reason of gross negligence, bad faith or willful misconduct with respect to such acts or omissions. (d) to the fullest extent permitted by applicable law, to advance expenses (including legal fees) incurred by an Indemnified Person in defending any claim, demand, action, suit or proceeding, from time to time, prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Depositor of (i) a written affirmation by or on behalf of the Indemnified Person of its or his good faith belief that it or he has met the standard of conduct set forth in this Section 8.6 and (ii) an undertaking by or on behalf of the Indemnified Person to repay such amount if it shall be determined that the Indemnified Person is not entitled to be indemnified as authorized in the preceding subsection. 41 The provisions of this Section 8.6 shall survive the termination of this Trust Agreement or the resignation or removal of any Issuer Trustee. No Issuer Trustee or Paying Agent may claim any lien or charge on any Trust Property as a result of any amount due pursuant to this Section 8.6. In the event that the Property Trustee is also acting as Paying Agent or Securities Registrar hereunder, the rights and protections afforded to the Property Trustee pursuant to this Article VIII shall also be afforded to such Paying Agent or Securities Registrar. Section 8.7. Corporate Property Trustee Required; Eligibility of Issuer Trustees and Administrators. (a) There shall at all times be a Property Trustee hereunder with respect to the Trust Securities. The Property Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Property Trustee with respect to the Trust Securities shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. (b) There shall at all times be one or more Administrators hereunder with respect to the Trust Securities. Each Administrator shall be either a natural person who is at least 21 years of age or a legal entity that shall act through one or more persons authorized to bind that entity. (c) There shall at all times be a Delaware Trustee with respect to the Trust Securities. The Delaware Trustee shall either be (i) a natural person who is at least 21 years of age and a resident of the State of Delaware or (ii) a legal entity with its principal place of business in the State of Delaware and, in either case, a Person that satisfies for the Trust the requirements of Section 3807(a) of the Business Trust Act.. Section 8.8. Conflicting Interests. If the Property Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Property Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Trust Agreement. The Depositor, any Administrator, any Paying Agent and any Issuer Trustee may engage in or possess an interest in other business ventures of any nature or description, independently or with others, similar or dissimilar to the business of the Trust, and the Trust and the Holders of Trust Securities shall have no rights by virtue of this Trust Agreement in and to such independent ventures or the income or profits derived therefrom, and the pursuit of any such venture, even if competitive with the business of the Trust, shall not be deemed wrongful or improper. None of the Depositor, any Administrator, any Paying Agent nor any Issuer Trustee shall be obligated to present any particular investment or other opportunity to the Trust even if such opportunity is of a character that, if presented to the Trust, could be taken by the Trust, and the Depositor, any Administrator, any Paying Agent or any Issuer Trustee shall 42 have the right to take for its own account (individually or as a partner or fiduciary) or to recommend to others any such particular investment or other opportunity. Any Issuer Trustee or any Paying Agent may engage or be interested in any financial or other transaction with the Depositor or any Affiliate of the Depositor, or may act as depository for, trustee or agent for, or act on any committee or body of holders of, securities or other obligations of the Depositor or its Affiliates. Section 8.9. Co-Trustees and Separate Trustee. Unless an Event of Default shall have occurred and be continuing, at any time or times, for the purpose of meeting the legal requirements of the Trust Indenture Act or of any jurisdiction in which any part of the Trust Property may at the time be located, the Property Trustee shall have power to appoint, and upon the written request of the Property Trustee the Depositor and the Administrators shall for such purpose join with the Property Trustee in the execution, delivery and performance of all instruments and agreements necessary or proper to appoint, one or more Persons either to act as co-trustee jointly with the Property Trustee of all or any part of such Trust Property or, to the extent required by law, to act as separate trustee of any such property, in either case with such powers as may be provided in the instrument of appointment, and to vest in such Person or Persons in the capacity aforesaid, any property, title, right or power deemed necessary or desirable, subject to the other provisions of this Section. Any co-trustee or separate trustee appointed pursuant to this Section shall either be (i) a natural person who is at least 21 years of age and a resident of the United States or (ii) a legal entity with its principal place of business in the United States that shall act through one or more persons authorized to bind such entity. Should any written instrument from the Depositor be required by any co-trustee or separate trustee so appointed for more fully confirming to such co-trustee or separate trustee such property, title, right, or power, any and all such instruments shall, on request, be executed, acknowledged and delivered by the Depositor. Every co-trustee or separate trustee shall, to the extent permitted by law, but to such extent only, be appointed subject to the following terms, namely: (a) The Trust Securities shall be executed by one or more Administrators and delivered and all rights, powers, duties, and obligations hereunder in respect of the custody of securities, cash and other personal property held by, or required to be deposited or pledged with, the Property Trustee specified hereunder, shall be exercised, solely by the Property Trustee and not by such co-trustee or separate trustee. (b) The rights, powers, duties and obligations hereby conferred or imposed upon the Property Trustee in respect of any property covered by such appointment shall be conferred or imposed upon and exercised or performed by the Property Trustee or by the Property Trustee and such co- trustee or separate trustee jointly, as shall be provided in the instrument appointing such co-trustee or separate trustee, except to the extent that under any law of any jurisdiction in which any particular act is to be performed, the Property Trustee shall be incompetent or unqualified to perform such act, in which event such rights, powers, duties and obligations shall be exercised and performed by such co-trustee or separate trustee. 43 (c) The Property Trustee at any time, by an instrument in writing executed by it, with the written concurrence of the Depositor, may accept the resignation of or remove any co-trustee or separate trustee appointed under this Section, and, in case a Debenture Event of Default has occurred and is continuing, the Property Trustee shall have power to accept the resignation of, or remove, any such co-trustee or separate trustee without the concurrence of the Depositor. Upon the written request of the Property Trustee, the Depositor shall join with the Property Trustee in the execution, delivery and performance of all instruments and agreements necessary or proper to effectuate such resignation or removal. A successor to any co-trustee or separate trustee so resigned or removed may be appointed in the manner provided in this Section. (d) No co-trustee or separate trustee hereunder shall be personally liable by reason of any act or omission of the Property Trustee or any other trustee hereunder. (e) The Property Trustee shall not be liable by reason of any act of a co-trustee or separate trustee. (f) Any Act of Holders delivered to the Property Trustee shall be deemed to have been delivered to each such co-trustee and separate trustee. Section 8.10. Resignation and Removal of Issuer Trustees, Appointment of Successor. No resignation or removal of any Issuer Trustee (the "Relevant Trustee") and no appointment of a successor Issuer Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Issuer Trustee in accordance with the applicable requirements of Section 8.11. Subject to the immediately preceding paragraph, the Relevant Trustee may resign at any time by giving written notice thereof to the Holders and by appointing a successor Issuer Trustee meeting the applicable requirements hereunder. If the instrument of acceptance by the successor Issuer Trustee required by Section 8.11 shall not have been delivered to the Relevant Trustee within 30 days after the giving of such notice of resignation, the Relevant Trustee may petition (pursuant to the Indenture, at the expense of the Depositor), any court of competent jurisdiction for the appointment of a successor Issuer Trustee. Subject to this Section 8.10, prior to the issuance of any Trust Securities hereunder and, thereafter, unless a Debenture Event of Default shall have occurred and be continuing, any Issuer Trustee may be removed at any time by Act of the Depositor. After the issuance of the Preferred Securities and if a Debenture Event of Default shall have occurred and be continuing, the Property Trustee or the Delaware Trustee, or both of them, may be removed at such time by Act of the Holders of a majority in aggregate Liquidation Amount of the Preferred Securities, delivered to the Relevant Trustee (in its individual capacity and on behalf of the Trust). If either Issuer Trustee shall resign, be removed or become incapable of acting as Property Trustee or Delaware Trustee, as the case may be, or if a vacancy shall occur in the office of any Issuer Trustee for any cause, at a time when no Debenture Event of Default shall have occurred and be continuing, the Depositor, by written consent delivered to the Relevant Trustee, shall promptly appoint a successor Issuer Trustee or Trustees, and the Relevant Trustee shall comply with the applicable requirements of Section 8.11. If either Issuer Trustee shall 44 resign, be removed or become incapable of continuing to act as the Property Trustee or the Delaware Trustee, as the case may be, at a time when a Debenture Event of Default shall have occurred and be continuing, the Holders of the Preferred Securities, by Act of the Holders of a majority in aggregate Liquidation Amount of the Preferred Securities then Outstanding delivered to the retiring Relevant Trustee, shall promptly appoint a successor Relevant Trustee or Trustees, and such successor Trustee shall comply with the applicable requirements of Section 8.11. The Property Trustee shall give notice of each resignation and each removal of an Issuer Trustee and each appointment of a successor Issuer Trustee to all Holders in the manner provided in Section 10.8 and shall give notice to the Depositor and the Administrators. Each notice shall include the name of the successor Relevant Trustee and the address of its Corporate Trust Office if it is the Property Trustee. Notwithstanding the foregoing or any other provision of this Trust Agreement, in the event a Delaware Trustee who is a natural person dies or becomes, in the opinion of the Depositor, incompetent or incapacitated, the vacancy created by such death, incompetence or incapacity may be filled by the Property Trustee (with the successor in each case being a Person who satisfies the eligibility requirement for Delaware Trustee set forth in Section 8.7). Section 8.11. Acceptance of Appointment by Successor. In case of the appointment hereunder of a successor Relevant Trustee, the retiring Relevant Trustee and each successor Relevant Trustee with respect to the Trust Securities shall execute and deliver an amendment hereto wherein each successor Relevant Trustee shall accept such appointment and which (a) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Relevant Trustee all the rights, powers, trusts and duties of the retiring Relevant Trustee with respect to the Trust Securities and the Trust and (b) shall add to or change any of the provisions of this Trust Agreement as shall be necessary to provide for or facilitate the administration of the Trust by more than one Relevant Trustee, it being understood that nothing herein or in such amendment shall constitute such Relevant Trustees co-trustees and upon the execution and delivery of such amendment the resignation or removal of the retiring Relevant Trustee shall become effective to the extent provided therein and each such successor Relevant Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Relevant Trustee; but, on request of the Trust or any successor Relevant Trustee such retiring Relevant Trustee shall duly assign, transfer and deliver to such successor Relevant Trustee all Trust Property, all proceeds thereof and money held by such retiring Relevant Trustee hereunder with respect to the Trust Securities and the Trust. Upon request of any such successor Relevant Trustee, the Trust shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Relevant Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be. No successor Relevant Trustee shall accept its appointment unless at the time of such acceptance such successor Relevant Trustee shall be qualified and eligible under this Article. 45 Section 8.12. Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Property Trustee or the Delaware Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Relevant Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of such Relevant Trustee, shall be the successor of such Relevant Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. Section 8.13. Preferential Collection of Claims Against Depositor or Trust. If and when the Property Trustee or the Delaware Trustee shall be or become a creditor of the Depositor or the Trust (or any other obligor upon the Debentures or the Trust Securities), the Property Trustee or the Delaware Trustee, as the case may be, shall be subject to and shall take all actions necessary in order to comply with the provisions of the Trust Indenture Act regarding the collection of claims against the Depositor or Trust (or any such other obligor). Section 8.14. Reports by the Property Trustee. (a) The Property Trustee shall transmit to Holders such reports concerning the Property Trustee and its actions under this Trust Agreement as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the Property Trustee shall, within sixty days after each May 15, commencing in , deliver to Holders a brief report, dated as of such May 15, which complies with the provisions of such Section 313(a). (b) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Property Trustee with each national stock exchange, the NASDAQ National Market or such other interdealer quotation system or self-regulatory organization upon which the Trust Securities are listed or traded, with the Commission and with the Depositor. Section 8.15. Reports to the Property Trustee. The Depositor and the Administrators on behalf of the Trust shall provide to the Property Trustee such documents, reports and information as required by Section 314 of the Trust Indenture Act (if any) and the compliance certificate required by Section 314(a) of the Trust Indenture Act in the form, in the manner and at the times required by Section 314 of the Trust Indenture Act, but in no event later than 120 days after the end of each calendar year. Section 8.16. Evidence of Compliance with Conditions Precedent. Each of the Depositor and the Administrators on behalf of the Trust shall provide to the Property Trustee such evidence of compliance with any conditions precedent, if any, provided for in this Trust Agreement that relate to any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer pursuant to Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an Officers' Certificate. 46 Section 8.17. Number of Issuer Trustees. (a) Subject to Section 8.9, the number of Issuer Trustees shall be two, provided that the Property Trustee and the Delaware Trustee may be the same Person, subject to the applicable eligibility requirements set forth herein. (b) If an Issuer Trustee ceases to hold office for any reason, or if the number of Issuer Trustees is increased or decreased in accordance with the proviso in Section 8.17(a), a vacancy shall occur. The vacancy shall be filled with an Issuer Trustee appointed in accordance with Section 8.10. (c) The death, resignation, retirement, removal, bankruptcy, incompetence or incapacity to perform the duties of an Issuer Trustee shall not operate to annul, dissolve or terminate the Trust. Section 8.18. Delegation of Power by Administrators. (a) Any Administrator may, by power of attorney consistent with applicable law, delegate to any other natural person over the age of 21 his or her power for the purpose of executing any documents contemplated in Section 2.7(a), including any registration statement or amendment thereto filed with the Commission, or making any other governmental filing; and (b) The Administrators shall have power to delegate from time to time to such of their number or to the Depositor the doing of such things and the execution of such instruments either in the name of the Trust or the names of the Administrators or otherwise as the Administrators may deem expedient, to the extent such delegation is not prohibited by applicable law or contrary to the provisions of this Trust Agreement, as set forth herein. Section 8.19. Appointment and Removal of Administrators. (a) The Administrators shall initially be James Risinger, John Poelker and Thomas Clayton, and their successors shall be appointed by the Holders of a majority in aggregate Liquidation Amount of the Common Securities and may resign or be removed by the Holders of a majority in aggregate Liquidation Amount of the Common Securities at any time. Upon any resignation or removal, the Depositor shall appoint a successor Administrator. Each Administrator shall sign an agreement, or a counterpart to this Trust Agreement, agreeing to comply with the terms of this Trust Agreement. If at any time there is no Administrator, the Property Trustee or any Holder who has been a Holder of Trust Securities for at least six months may petition any court of competent jurisdiction for the appointment of one or more Administrators. (b) Whenever a vacancy in the number of Administrators shall occur, until such vacancy is filled by the appointment of an Administrator in accordance with this Section 8.19, the Administrators in office, regardless of their number (and notwithstanding any other provision of this Agreement), shall have all the powers granted to the Administrators and shall discharge all the duties imposed upon the Administrators by this Trust Agreement. 47 (c) Notwithstanding the foregoing or any other provision of this Trust Agreement, if any Administrator who is a natural person dies or becomes, in the opinion of the Holder of a majority in aggregate Liquidation Amount of the Common Securities, incompetent or incapacitated, the vacancy created by such death, incompetence or incapacity may be filled by the unanimous act of the remaining Administrators, if there were at least two of them prior to such vacancy, and by the Depositor, if there were not at least two such Administrators immediately prior to such vacancy (with the successor being a Person who satisfies the eligibility requirement for Administrators set forth in Section 8.7). ARTICLE IX TERMINATION, LIQUIDATION AND MERGER Section 9.1. Termination Upon Expiration Date. Unless earlier terminated, the Trust shall automatically dissolve on (the "Expiration Date"). Thereafter, the Trust Property shall be distributed in accordance with Section 9.4. Section 9.2. Early Termination. The first to occur of any of the following events is an "Early Termination Event," the occurrence of which shall cause a dissolution of the Trust: (a) the occurrence of a Bankruptcy Event in respect of, or the dissolution or liquidation of, the Depositor in its capacity as Holder of the Common Securities; (b) the written direction to the Property Trustee from the Depositor at any time (which direction is optional and wholly within the discretion of the Depositor subject to the receipt of any necessary approvals by the Regulator that may then be required under applicable capital guidelines, rules, regulations or policies of the Regulator) to dissolve the Trust and distribute Debentures to Holders in exchange for the Preferred Securities; (c) the redemption of all of the Preferred Securities in connection with the redemption of all of the Debentures; and (d) the entry of an order for dissolution of the Trust by a court of competent jurisdiction. Section 9.3. Termination. The respective obligations and responsibilities of the Issuer Trustees, the Administrators and the Trust created and continued hereby shall terminate upon the latest to occur of the following: (a) the distribution by the Property Trustee to Holders of all amounts required to be distributed hereunder upon the liquidation of the Trust pursuant to Section 9.4, or upon the redemption of all of the Trust Securities pursuant to Section 4.2; (b) the payment of all expenses owed by the Trust; and (c) the discharge of all administrative duties of the Administrators, 48 including the performance of any tax reporting obligations with respect to the Trust or the Holders. Section 9.4. Liquidation. (a) If an Early Termination Event specified in clause (a), (b) or (d) of Section 9.2 occurs or upon the Expiration Date, the Trust shall be liquidated by the Property Trustee as expeditiously as the Property Trustee determines to be possible by distributing, after satisfaction of liabilities to creditors of the Trust as provided by applicable law, and subject to Section 4.3(a) and 9.4(d), to each Holder a Like Amount of Debentures. Notice of liquidation shall be given by the Property Trustee by first-class mail, postage prepaid mailed not later than 30 nor more than 60 days prior to the Liquidation Date to each Holder of Trust Securities at such Holder's address appearing in the Securities Register. All notices of liquidation shall: (i) state the Liquidation Date; (ii) state that from and after the Liquidation Date, the Trust Securities will no longer be deemed to be Outstanding and any Trust Securities Certificates not surrendered for exchange will be deemed to represent a Like Amount of Debentures; and (iii) provide such information with respect to the mechanics by which Holders may exchange Trust Securities Certificates for Debentures, or if Section 9.4(d) applies receive a Liquidation Distribution, as the Property Trustee (after consultation with the Administrators) shall deem appropriate. (b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the liquidation of the Trust and distribution of the Debentures to Holders, the Property Trustee shall establish a record date for such distribution (which shall be not more than 45 days prior to the Liquidation Date) and, either itself acting as exchange agent or through the appointment of a separate exchange agent, shall establish such procedures as it shall deem appropriate to effect the distribution of Debentures in exchange for the Outstanding Trust Securities Certificates. (c) Except where Section 9.2(c) or 9.4(d) applies, after the Liquidation Date, (i) the Trust Securities will no longer be deemed to be Outstanding, (ii) certificates representing a Like Amount of Debentures will be issued to Holders of Trust Securities Certificates, upon surrender of such certificates to the Administrators or their agent for exchange, (iii) the Depositor shall use its best efforts to have the Debentures listed on the New York Stock Exchange or on such other exchange, interdealer quotation system or self-regulatory organization as the Preferred Securities are then listed, (iv) any Trust Securities Certificates not so surrendered for exchange will be deemed to represent a Like Amount of Debentures, accruing interest at the rate provided for in the Debentures from the last Distribution Date on which a Distribution was made on such Trust Securities Certificates until such certificates are so surrendered (and until such certificates are so surrendered, no payments of interest or principal will be made to Holders of Trust Securities Certificates with respect to such Debentures) and (v) all rights of Holders holding Trust Securities will cease, except the right of such Holders to receive Debentures upon surrender of Trust Securities Certificates. 49 (d) In the event that, upon the Expiration Date or the occurrence of an Early Termination Event, notwithstanding the other provisions of this Section 9.4, whether because of an order for dissolution entered by a court of competent jurisdiction or otherwise, distribution of the Debentures in the manner provided herein is determined by the Property Trustee not to be practical, the Trust Property shall be liquidated, and the Trust shall be wound-up by the Property Trustee in such manner as the Property Trustee determines. In such event, Holders will be entitled to receive out of the assets of the Trust available for distribution to Holders, after satisfaction of liabilities to creditors of the Trust as provided by applicable law, an amount equal to the Liquidation Amount per Trust Security plus accumulated and unpaid Distributions thereon to the date of payment (such amount being the "Liquidation Distribution"). If, upon any such winding-up, the Liquidation Distribution can be paid only in part because the Trust has insufficient assets available to pay in full the aggregate Liquidation Distribution, then, subject to the next succeeding sentence, the amounts payable by the Trust on the Trust Securities shall be paid on a pro rata basis (based upon Liquidation Amounts). The Holder of the Common Securities will be entitled to receive Liquidation Distributions upon any such winding-up pro rata (determined as aforesaid) with Holders of Preferred Securities, except that, if a Debenture Event of Default has occurred and is continuing, the Preferred Securities shall have a priority over the Common Securities. (e) Upon the completion of the liquidation of the Trust, the Property Trustee shall file a certificate of cancellation with the Secretary of State in the State of Delaware and the Trust shall terminate. Section 9.5. Mergers, Consolidations, Conversions, Amalgamations or Replacements of the Trust. The Trust may not merge with or into, consolidate, convert into, amalgamate, be replaced by, or convey, transfer or lease its properties and assets substantially as an entirety to any Person, except pursuant to this Section 9.5 or Section 9.4. At the request of the Holders of at least a majority in aggregate Liquidation Amount of the Common Securities, with the consent of the Holders of at least a majority in aggregate Liquidation Amount of the Preferred Securities but without the consent of the Issuer Trustees, the Trust may merge with or into, consolidate, amalgamate, be replaced by or convey, transfer or lease its properties and assets substantially as an entirety to a trust organized as such under the laws of the State of Delaware; provided, that (a) such successor entity either (i) expressly assumes all of the obligations of the Trust with respect to the Preferred Securities or (ii) substitutes for the Preferred Securities other securities having substantially the same terms as the Preferred Securities (the "Successor Securities") so long as the Successor Securities rank the same as the Preferred Securities rank in priority with respect to distributions and payments upon liquidation, redemption and otherwise, (b) the Depositor expressly appoints a trustee of such successor entity possessing the same powers and duties as the Property Trustee as the holder of the Debentures, (c) the Successor Securities are listed or traded, or any Successor Securities will be listed upon notification of issuance, on any national securities exchange or other organization on which the Preferred Securities are then listed or traded, if any, (d) such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not cause the Preferred Securities (including any Successor Securities) to be downgraded by any nationally recognized statistical rating organization, (e) such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not adversely 50 affect the rights, preferences and privileges of the Holders of the Preferred Securities (including any Successor Securities) in any material respect, (f) such successor entity has a purpose substantially similar to that of the Trust, (g) prior to such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease, the Property Trustee has received an Opinion of Counsel experienced in such matters to the effect that (i) such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not adversely affect the rights, preferences and privileges of the Holders of the Preferred Securities (including any Successor Securities) in any material respect, (ii) following such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease, neither the Trust nor such successor entity will be required to register as an investment company under the 1940 Act and (iii) the proposed action will not cause the Trust or such successor entity to be classified as an association that is taxable as a corporation for U.S. federal income tax purposes, and (h) the Depositor owns all of the common securities of such successor entity and guarantees the obligations of such successor entity under the Successor Securities at least to the extent provided by the Guarantee. Notwithstanding the foregoing, the Trust shall not, except with the consent of Holders of 100% in aggregate Liquidation Amount of the Preferred Securities, consolidate, amalgamate, merge with or into, convert into, be replaced by or convey, transfer or lease its properties and assets substantially as an entirety to any other Person or permit any other entity to consolidate, amalgamate, merge with or into, or replace it if such consolidation, amalgamation, merger, replacement, conveyance, transfer or lease would cause the Trust or the successor entity to be classified as other than a grantor trust for United States federal income tax purposes. ARTICLE X MISCELLANEOUS PROVISIONS Section 10.1. Limitation of Rights of Holders. The death, incapacity, dissolution, bankruptcy or termination of any Person having an interest, beneficial or otherwise, in Trust Securities shall not operate to terminate this Trust Agreement nor dissolve, terminate or annul the Trust nor entitle the legal representatives or heirs of such Person or any Holder for such person, to claim an accounting, take any action or bring any proceeding in any court for a partition or winding-up of the arrangements contemplated hereby, nor otherwise affect the rights, obligations and liabilities of the parties hereto or any of them. Section 10.2. Amendment. (a) This Trust Agreement may be amended from time to time by the Property Trustee and the Depositor, without the consent of the Holders of the Preferred Securities, (i) to cure any ambiguity, correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Trust Agreement, which shall not be inconsistent with the other provisions of this Trust Agreement, or (ii) to modify, eliminate or add to any provisions of this Trust Agreement to such extent as shall be necessary to ensure that the Trust will be classified for United States federal income tax purposes as a grantor trust at all times that any Trust Securities are outstanding or to ensure that the Trust will not be required to register as an investment company 51 under the 1940 Act; provided, however, that, in either case, such action shall not adversely affect in any material respect the interests of any Holder. (b) Except as provided in Section 6.1(c) or Section 10.2(c) hereof, any provision of this Trust Agreement may be amended by the Property Trustee and the Depositor with (i) the consent of Holders representing not less than a majority (in aggregate Liquidation Amount) of the Preferred Securities then Outstanding and (ii) receipt by the Property Trustee of an Opinion of Counsel experienced in such matters to the effect that such amendment or the exercise of any power granted to the Issuer Trustees in accordance with such amendment will not affect the Trust's status as a grantor trust for United States federal income tax purposes or the Trust's exemption from status of an investment company under the 1940 Act. (c) In addition to and notwithstanding any other provision in this Trust Agreement, without the consent of each affected Holder, this Trust Agreement may not be amended to (i) change the amount or timing of any Distribution on the Trust Securities or otherwise adversely affect the amount of any Distribution required to be made in respect of the Trust Securities as of a specified date or (ii) restrict the right of a Holder to institute suit against the Depositor for the enforcement of any such Distribution on or after such date; notwithstanding any other provision herein, without the unanimous consent of the Holders, this paragraph (c) of this Section 10.2 may not be amended. (d) Notwithstanding any other provisions of this Trust Agreement, no Issuer Trustee shall enter into or consent to any amendment to this Trust Agreement which would cause the Trust to fail or cease to qualify for the exemption from status of an investment company under the 1940 Act or fail or cease to be classified as a grantor trust for United States federal income tax purposes. (e) Notwithstanding anything in this Trust Agreement to the contrary, without the consent of the Depositor and the Administrators, this Trust Agreement may not be amended in a manner which imposes any additional obligation on the Depositor or the Administrators. (f) In the event that any amendment to this Trust Agreement is made, the Administrators shall promptly provide to the Depositor a copy of such amendment, and the Property Trustee shall promptly provide to the Holders a copy of such amendment. (g) Neither the Property Trustee nor the Delaware Trustee shall be required to enter into any amendment to this Trust Agreement which affects its own powers, rights, duties or immunities under this Trust Agreement, and any proposed amendment to such effect shall be without force or effect until the affected Issuer Trustee has given its affirmative approval thereto in writing. The Property Trustee shall be entitled to receive an Opinion of Counsel and an Officers' Certificate stating that any amendment to this Trust Agreement is in compliance with this Trust Agreement. Section 10.3. Separability. In case any provision in this Trust Agreement or in the Trust Securities Certificates, or the application of such provision to any person or circumstance, shall be invalid, illegal or 52 unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 10.4. Governing Law. THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE HOLDERS, THE TRUST, THE DEPOSITOR, THE ISSUER TRUSTEES AND THE ADMINISTRATORS SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION OTHER THAN THE STATE OF DELAWARE; PROVIDED, HOWEVER, THAT THERE SHALL NOT BE APPLICABLE TO THE HOLDERS, THE TRUST, THE DEPOSITOR, THE TRUSTEES OR THIS TRUST AGREEMENT ANY PROVISION OF THE LAWS (STATUTORY OR COMMON) OF THE STATE OF DELAWARE PERTAINING TO TRUSTS THAT RELATE TO OR REGULATE, IN A MANNER INCONSISTENT WITH THE TERMS HEREOF (A) THE FILING WITH ANY COURT OR GOVERNMENT BODY OR AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES OF TRUSTEE FEES AND CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST BONDS FOR TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (C) THE NECESSITY FOR OBTAINING COURT OR OTHER GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION, HOLDING OR DISPOSITION OF REAL OR PERSONAL PROPERTY, (D) FEES OR OTHER SUMS PAYABLE TO TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (E) THE ALLOCATION OF RECEIPTS AND EXPENDITURES TO INCOME OR PRINCIPAL, (F) RESTRICTIONS OR LIMITATIONS ON THE PERMISSIBLE NATURE, AMOUNT OR CONCENTRATION OF TRUST INVESTMENTS OR REQUIREMENTS RELATING TO THE TITLING, STORAGE OR OTHER MANNER OF HOLDING OR INVESTING TRUST ASSETS OR (G) THE ESTABLISHMENT OF FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY OR LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE LIMITATIONS OR LIABILITIES OR AUTHORITIES AND POWERS OF THE TRUSTEES AS SET FORTH OR REFERENCED IN THIS TRUST AGREEMENT. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY TO THE TRUST. Section 10.5. Payments Due on Non-Business Day. If the date fixed for any payment on any Trust Security shall be a day that is not a Business Day, then such payment need not be made on such date but may be made on the next succeeding day that is a Business Day (except as otherwise provided in Sections 4.1(a) and 4.2(d)), with the same force and effect as though made on the date fixed for such payment, and no interest shall accrue thereon for the period after such date. Section 10.6. Successors. This Trust Agreement shall be binding upon and shall inure to the benefit of any successor to the Depositor, the Trust, the Administrators or the Relevant Trustee, including any 53 successor by operation of law. Except in connection with transactions permitted under Article V of the Indenture and pursuant to which the assignee agrees in writing to perform the Depositor's obligations hereunder, the Depositor shall not assign its obligations hereunder. Section 10.7. Headings. The Article and Section headings are for convenience only and shall not affect the construction of this Trust Agreement. Section 10.8. Reports, Notices and Demands. Any report, notice, demand or other communication which by any provision of this Trust Agreement is required or permitted to be given or served to or upon any Holder or the Depositor may be given or served in writing by deposit thereof, first-class postage prepaid, in the United States mail, hand delivery or facsimile transmission, in each case, addressed, (a) in the case of a Holder of Preferred Securities, to such Holders of Preferred Securities as such Holder's name and address may appear on the Securities Register; and (b) in the case of the Holder of the Common Securities or the Depositor, to Old National Bancorp, 420 Main Street, Evansville, Indiana 47708, Attention: Corporate Secretary, facsimile no.: 812-464-1567. Such notice, demand or other communication to or upon a Holder shall be deemed to have been sufficiently given or made, for all purposes, upon hand delivery, mailing or transmission. Such notice, demand or other communication to or upon the Depositor shall be deemed to have been sufficiently given or made only upon actual receipt of the writing by the Depositor. Any notice, demand or other communication which by any provision of this Trust Agreement is required or permitted to be given or served to or upon the Trust, the Property Trustee, the Delaware Trustee or the Administrators shall be given in writing addressed (until another address is published by the Trust) as follows: (a) with respect to the Property Trustee to Bank One Trust Company, NA, Attention: Corporate Trust Administration; (b) with respect to the Delaware Trustee, to Bank One Delaware, Inc., Attention: Legal Dept./First USA; and (c) with respect to the Administrators, to them at the address above for notices to the Depositor, marked "Attention Administrators of ONB Capital Trust II." Such notice, demand or other communication to or upon the Trust or the Property Trustee shall be deemed to have been sufficiently given or made only upon actual receipt of the writing by the Trust or the Property Trustee. Section 10.9. Agreement Not to Petition. Each of the Issuer Trustees and the Depositor agree for the benefit of the Holders that, until at least one year and one day after the Trust has been terminated in accordance with Article IX, they shall not file, or join in the filing of, a petition against the Trust under any bankruptcy, insolvency, reorganization or other similar law (including, without limitation, the United States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in the commencement of any proceeding against the Trust under any Bankruptcy Law. In the event the Depositor takes action in violation of this Section 10.9, the Property Trustee agrees, for the benefit of Holders, that at the expense of the Depositor, it shall file an answer with the bankruptcy court or otherwise properly contest the filing of such petition by the Depositor against the Trust or the 54 commencement of such action and raise the defense that the Depositor has agreed in writing not to take such action and should be stopped and precluded therefrom and such other defenses, if any, as counsel for the Issuer Trustee or the Trust may assert. The provisions of this Section 10.9 shall survive the termination of this Trust Agreement. Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act. (a) This Trust Agreement is subject to the provisions of the Trust Indenture Act that are required to be part of this Trust Agreement in order for this Trust Agreement to be qualified and shall, to the extent applicable, be governed by such provisions. (b) The Property Trustee shall be the only Issuer Trustee which is a trustee for the purposes of the Trust Indenture Act. (c) If any provision hereof limits, qualifies or conflicts with the duties imposed by Sections 310 through 317, inclusive, of the Trust Indenture Act through the operation of Section 318(c) thereof, such imposed duties shall control. If any provision of this Trust Agreement modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply to this Trust Agreement as so modified or excluded, as the case may be. (d) The application of the Trust Indenture Act to this Trust Agreement shall not affect the nature of the Trust Securities as equity securities representing undivided beneficial ownership interests in the Trust Property. Section 10.11. Acceptance of Terms of Trust Agreement, Guarantee and Indenture. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL OWNERSHIP INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH HOLDER AND SUCH OTHERS. Section 10.12. Counterparts. This Trust Agreement may contain more than one counterpart of the signature page and this Trust Agreement may be executed by the affixing of the signature of each of the Issuer Trustees, the Depositor and Administrators to any of such counterpart signature pages. All of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page. 55 IN WITNESS WHEREOF, the undersigned have caused these presents to be executed as of the day and year first above written. BANK ONE DELAWARE, INC., as Delaware Trustee By: ___________________________ Name: Title: BANK ONE TRUST COMPANY, NA, as Property Trustee By: ___________________________ Name: Title: OLD NATIONAL BANCORP, as Depositor By: ___________________________ Name: Title: Attest: By: ___________________________ Name: Title: By: ___________________________ Name: James Risinger Administrator By: ___________________________ Name: John Poelker Administrator By: ___________________________ Name: Thomas Clayton Administrator 56 EXHIBIT A FORM OF COMMON SECURITY CERTIFICATE THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION. THIS CERTIFICATE IS NOT TRANSFERABLE OTHER THAN IN ACCORDANCE WITH THE TRUST AGREEMENT (AS DEFINED BELOW). Certificate Number Number Of Common Securities: [ ] [ ] Certificate Evidencing Common Securities of ONB Capital Trust II % Common Securities (Liquidation Amount $25 Per Common Security) ONB Capital Trust II, a statutory business trust created under the laws of the State of Delaware (the "Trust"), hereby certifies that Old National Bancorp (the "Holder") is the registered owner of [ ] ($[ ]) common securities of the Trust representing undivided beneficial ownership interests of the Trust and designated the % Common Securities (liquidation amount $25 per Common Security) (the "Common Securities"). To the extent set forth in Section 5.11 of the Trust Agreement (as defined below) the Common Securities are not transferable and any attempted transfer hereof shall be null and void ab initio. The designations, rights, privileges, restrictions, preferences and other terms and provisions of the Common Securities are set forth in, and this certificate and the Common Securities represented hereby are issued pursuant to, and shall in all respects be subject to the terms and provisions of, the Amended and Restated Trust Agreement of the Trust dated as of , among the Administrators named therein, Bank One Delaware, Inc., as Delaware Trustee, Bank One Trust Company, NA, as Property Trustee, the Holder, as Depositor, and the Holders from time to time of the Trust Securities, as the same may be amended, supplemented or restated from time to time (the "Trust Agreement") including the designation of the terms of the Common Securities as set forth therein. The Trust will furnish a copy of the Trust Agreement to the Holder without charge upon written request to the Trust at its principal place of business or registered office. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Trust Agreement. By acceptance of this certificate, the Holder agrees to treat, for United States federal income tax purposes, the Debentures as indebtedness. A-1 Upon receipt of this certificate, the Holder is bound by the Trust Agreement and is entitled to the benefits thereunder. This certificate and the Common Securities shall be governed by and interpreted in accordance with the laws of the State of Delaware (without regard to principles of conflict of laws). IN WITNESS WHEREOF, one of the Administrators of the Trust has executed this certificate this day of . ONB Capital Trust II By: _____________________________________ Name: Administrator A-2 EXHIBIT B FORM OF PREFERRED SECURITY CERTIFICATE Insert the first paragraph only if this is a global security: THIS PREFERRED SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE "DEPOSITORY") OR A NOMINEE OF THE DEPOSITORY. THIS PREFERRED SECURITY IS EXCHANGEABLE FOR PREFERRED SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND NO TRANSFER OF THIS PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, A NEW YORK CORPORATION ("DTC")) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. Certificate Number: Number Of Preferred Securities: [ ] [ ] CUSIP No. Certificate Evidencing Preferred Securities of ONB Capital Trust II % Preferred Securities (Liquidation Amount $25 Per Preferred Security) ONB Capital Trust II, a statutory business trust created under the laws of the State of Delaware (the "Trust"), hereby certifies that Cede & Co. (the "Holder") is the registered owner of [ ] ($[ ]) preferred securities of the Trust representing non-voting, B-1 cumulative, preferred undivided beneficial ownership interests in the Trust Property of the Trust and designated the ONB Capital Trust II % Preferred Securities (liquidation amount $25 per security) (the "Preferred Securities"). The Preferred Securities are transferable on the books and records of the Trust, in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for transfer as provided in Section 5.4 of the Trust Agreement. The designations, rights, privileges, restrictions, preferences and other terms and provisions of the Preferred Securities are set forth in, and this certificate and the Preferred Securities represented hereby are issued pursuant to, and shall in all respects be subject to the terms and provisions of, the Amended and Restated Trust Agreement of the Trust dated as of , among the Administrators named therein, Bank One Delaware Inc., as Delaware Trustee, Bank One Trust Company, NA, as Property Trustee, Old National Bancorp, as Depositor, and the Holders from time to time of the Trust Securities, as the same may be amended, supplemented or restated from time to time (the "Trust Agreement"), including the designation of the terms of Preferred Securities as set forth therein. The Holder is entitled to the benefits of the Guarantee Agreement entered into by Old National Bancorp, an Indiana corporation, and Bank One Trust Company, NA, as guarantee trustee, dated as of , as the same may be amended from time to time (the "Guarantee"), to the extent provided therein. The Trust will furnish a copy of the Trust Agreement and the Guarantee to the Holder without charge upon written request to the Trust at its principal place of business or registered office. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Trust Agreement. By acceptance of this certificate, the Holder agrees to treat, for United States federal income tax purposes, the Debentures as indebtedness. Upon receipt of this certificate, the Holder is bound by the Trust Agreement and is entitled to the benefits thereunder. This certificate and the Preferred Securities shall be governed by and interpreted in accordance with the laws of the State of Delaware (without regard to principles of conflict of laws). Upon receipt of this certificate, the Holder is bound by the Trust Agreement and is entitled to the benefits thereunder. In Witness Whereof, one of the Administrators of the Trust has executed this certificate this day of . ONB Capital Trust II By: _____________________________________ Name: Administrator B-2 ASSIGNMENT For Value Received, the undersigned assigns and transfers this Preferred Security to: --------------------------------------------------------------- --------------------------------------------------------------- --------------------------------------------------------------- (Insert assignee's social security or tax identification number) --------------------------------------------------------------- --------------------------------------------------------------- --------------------------------------------------------------- (Insert address and zip code of assignee) and irrevocably appoints --------------------------------------------------------------- --------------------------------------------------------------- --------------------------------------------------------------- agent to transfer this Preferred Security Certificate on the books of the Trust. The agent may substitute another to act for him or her. Date: Signature: --------------------------------------------------------------- (Sign exactly as your name appears on the other side of this Preferred Security Certificate) - ------------------------------------------------------------------------- The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15. B-3 EX-8.2 5 ex8-2.txt Exhibit 8.2 [Letterhead of Krieg DeVault LLP] April 5, 2002 Old National Bancorp 420 Main Street Evansville, IN 47708 ONB Capital Trust II 420 Main Street Evansville, IN 47708 Ladies and Gentlemen: We refer to the proposed issuance of preferred securities by the ONB Capital Trust II, a Delaware statutory business trust, formed by Old National Bancorp ("ONB"), an Indiana corporation. You have requested our opinion regarding the characterization of ONB Capital Trust II for federal income tax purposes and the discussion of certain of the material United States federal income tax consequences of purchasing, holding and selling the preferred securities of ONB Capital Trust II that appear under the caption "United States Federal Income Taxation" in the Prospectus Supplement dated April 5, 2002 to the Prospectus dated February 29, 2000 relating to the Registration Statement on Form S-3 (Registration Statement No. 333-87573) filed by ONB and ONB Capital Trust II with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Act"). In rendering our opinion, we have reviewed the Registration Statement, as amended, the Prospectus and Prospectus Supplement, the form of Amended and Restated Trust Agreement for ONB Capital Trust II, the form of the Guarantee Agreement for ONB Capital Trust II, and the Indenture, dated March 14, 2000, for debt securities relating to the offering of the preferred securities, forms of which were included in or filed as exhibits to the Registration Statement, and such other materials as we have deemed necessary or appropriate as a basis for our opinion. In addition, we have considered the applicable provisions of the Internal Revenue Code of 1986, as amended, Treasury Regulations, pertinent judicial authorities, rulings of the Internal Revenue Service, and such other authorities as we have considered relevant. Based upon the foregoing, and assuming full and complete compliance with the terms of the Amended and Restated Trust Agreement, the Guarantee Agreement and the Indenture (and other relevant documents) it is our opinion that: (1) ONB Capital Trust II will be characterized for United States federal income tax purposes as a grantor trust and will not be taxable as a corporation. (2) The junior subordinated debentures to be issued by ONB to ONB Capital Trust II will be classified for United States federal income tax purposes as indebtedness of ONB. The opinions expressed herein represent our conclusions as to the application of existing federal income tax law to the facts as presented to us relating to the preferred securities, and we give no assurance that changes in such law or any interpretation thereof will not affect the opinions expressed by us. Moreover, there can be no assurance that this opinion will not be challenged by the Internal Revenue Service or that a court considering the issues will not hold contrary to such opinion. We express no opinion on the treatment of the preferred securities under the income tax laws of any state or other taxing jurisdiction. We assume no obligation to advise you of any changes concerning the above, whether or not deemed material, which may hereafter come or be brought to our attention. The opinions expressed herein are a matter of professional judgment and are not a guarantee of result. This opinion is being furnished in connection with the Registration Statement. Any variation or difference in the facts from those set forth or assumed either herein or in the Registration Statement may affect the conclusions stated herein. This opinion is addressed to you and is solely for your use in connection with the issuance of the preferred securities. We assume no professional responsibility to any other person or entity whatsoever. Accordingly, the opinions expressed herein are not to be utilized or quoted by, or delivered or disclosed to, in whole or in part, any other person, corporation, entity or governmental authority without, in each instance, our prior written consent. We hereby consent to the use of our name under the caption "United States Federal Income Taxation" in the Prospectus Supplement and to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we are "experts" within the meaning of Section 11 of the Act or that we come within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder. Very truly yours, KRIEG DEVAULT LLP -----END PRIVACY-ENHANCED MESSAGE-----