Exhibit 4.1
S UPPLEMENTAL I NDENTURE
between
FIRST MIDWEST BANCORP,
INC.
and
WILMINGTON TRUST COMPANY
Dated as of August 21,
2009
Supplement to Indenture,
dated as of November 18,
2003
S UPPLEMENTAL I NDENTURE , dated as of August 21, 2009 (this “
Supplemental Indenture ”) between F
IRST M IDWEST B ANCORP , I NC . , a
Delaware corporation (the “ Company ”), having
its principal office at One Pierce Place, Suite 1500, Itasca,
Illinois 60143, and W ILMINGTON T RUST C OMPANY , as trustee (hereinafter called the “
Trustee ”).
R ECITALS OF THE C OMPANY
The Company and the Trustee entered
into the Indenture for junior subordinated deferrable interest
debentures, dated as of November 18, 2003 (the “
Indenture ”), providing for the issuance of the
Company’s Series B 6.95% Junior Subordinated Deferrable
Interest Debentures due December 1, 2033 (the “
Debentures ”).
Pursuant to an Agreement of Merger,
dated as of August 21, 2009 (the “ Agreement of
Merger ”), between First Midwest Capital Trust I (“
First Midwest Capital Trust ”) and New First Midwest
Capital Trust I, a statutory trust created pursuant to the Delaware
Statutory Trust Act by the entering into that certain Declaration
of Trust, dated as of August 20, 2009, and by the execution
and filing the Certificate of Trust, filed on August 20, 2009
(the “ New Trust ”), and a Certificate of Merger
filed with the Secretary of State of the State of Delaware at the
Effective Time (as defined in the Agreement of Merger), First
Midwest Capital Trust merged with and into the New Trust at the
Effective Time and each Capital Security issued and outstanding
immediately prior to the Effective Time was converted at the
Effective Time into one 6.95% Capital Security (liquidation amount
$1,000 per capital security) of the New Trust (the “ New
Capital Securities ”) and each Common Security issued and
outstanding immediately prior to the Effective Time was converted
at the Effective Time into one Common Security (liquidation amount
$1,000 per security) of the New Trust (the “ New Common
Securities ” and, together with the New Capital
Securities, the “ New Trust Securities
”).
Section 9.01(d) of the
Indenture provides that the Company and the Trustee may, without
the consent of any Securityholder, enter into a supplemental
indenture to cure any ambiguity or to correct or supplement any
provision contained therein which may be defective or inconsistent
with any other provision contained therein or in any supplemental
indenture, or to make such other provisions in regard to matters or
questions arising under the Indenture; provided, that any such
action shall not materially adversely affect the interests of the
holders of the Securities.
The Company has delivered to the
Trustee an Opinion of Counsel and an Officers’ Certificate
pursuant to Section 9.05 of the Indenture to the effect that
this Supplemental Indenture complies with the requirements of
Article IX of the Indenture.
The Company has requested that the
Trustee execute and deliver this Supplemental Indenture and satisfy
all requirements on the Trustee’s part necessary to make this
Supplemental Indenture a valid instrument in accordance with its
terms and all acts and things necessary have been done and
performed to make this Supplemental Indenture enforceable in
accordance with its terms, and the execution and delivery of this
Supplemental Indenture has been duly authorized in all
respects.
NOW, THEREFORE, THIS SUPPLEMENTAL
INDENTURE WITNESSETH :
For and in consideration of the premises, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all
Securityholders, as follows:
ARTICLE I
D EFINITIONS
Section 1.1. Definitions For
all purposes of this Supplemental Indenture, except as otherwise
expressly provided or unless the context otherwise
requires:
(a) Terms defined in the Indenture
or the New Declaration (as
