INDENTURE
GERMAN AMERICAN BANCORP,
INC.
and
WELLS FARGO BANK, NATIONAL
ASSOCIATION,
as Trustee
Dated as of
__________________________, 2009
$__,000,000
8% Redeemable Subordinated
Debentures Due 2019
TABLE OF
CONTENTS
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Page
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ARTICLE I DEFINITIONS
AND RULES OF CONSTRUCTION, APPLICABILITY OF THE TRUST INDENTURE
ACT
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1
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Definitions.
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1
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Other
Definitions.
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4
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Rules of
Construction
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4
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Trust Indenture
Act
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4
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ARTICLE II THE DEBENTURES
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5
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Form and
Dating
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5
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Execution and
Authentication
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5
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Agents
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5
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Paying Agent To
Hold Money in Trust
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5
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Holder
Lists
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6
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Transfer and
Exchange.
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6
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Replacement
Debentures
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6
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Outstanding
Debentures.
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7
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Treasury
Debentures Disregarded for Certain Purposes
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7
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Temporary
Debentures
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7
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Global
Debentures.
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7
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Cancellation
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11
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Defaulted
Interest
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11
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CUSIP
Numbers
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11
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ARTICLE III REDEMPTION
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12
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General
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12
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Notice to
Trustee.
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12
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Selection of
Debentures To Be Redeemed
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12
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Notice of
Redemption
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13
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Effect of
Notice of Redemption
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13
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Deposit of
Redemption Price; Accrual of Interest.
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13
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Debentures
Redeemed in Part
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13
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No Sinking
Fund
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14
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ARTICLE IV COVENANTS
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14
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Payment of
Debentures
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14
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SEC
Reports
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14
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Compliance
Certificate
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14
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Notice of
Certain Events
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14
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ARTICLE V
SUCCESSORS
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14
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When the
Company May Merge, etc
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14
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Successor
Corporation Substituted
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15
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ARTICLE VI
DEFAULTS AND REMEDIES
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15
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Events of
Default.
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15
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Acceleration.
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16
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Other
Remedies.
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17
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Waiver of Past
Defaults
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17
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Control by
Majority
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17
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Limitation on
Suits.
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17
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Rights of
Holders To Receive Payment
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18
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Priorities
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18
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Undertaking for
Costs
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18
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Proof of
Claim
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19
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Actions of a
Holder
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19
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ARTICLE VII
TRUSTEE
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19
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Duties of
Trustee.
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19
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Rights of
Trustee.
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20
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Individual
Rights of Trustee; Disqualification
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21
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Trustee's
Disclaimer
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21
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Notice of
Defaults
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21
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Reports by
Trustee to Holders
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22
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Compensation
and Indemnity.
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22
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Replacement of
Trustee.
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23
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Successor
Trustee by Merger, etc
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23
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Eligibility
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24
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Preferential
Collection of Claims Against the Company
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24
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ARTICLE VIII SATISFACTION
AND DISCHARGE
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24
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Satisfaction
and Discharge of Indenture.
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24
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Application of
Trust Funds
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25
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Reinstatement
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25
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Repayment to
the Company.
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25
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ARTICLE IX
AMENDMENTS
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26
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Without Consent
of Holders
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26
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With Consent of
Holders.
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26
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Compliance with
Trust Indenture Act and Section 12.03
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27
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Revocation and
Effect of Consents and Waivers
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27
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Notice of
Amendment; Notation on or Exchange of Debentures.
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27
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Trustee
Protected
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27
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ARTICLE X SUBORDINATION
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28
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Debentures
Subordinated to Senior Debt.
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28
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Debentures
Subordinated in Any Proceeding
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28
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No Payment on
Debentures in Certain Circumstances.
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28
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Subrogation
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29
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Obligations of
the Company Unconditional
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29
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Trustee and
Paying Agents Entitled to Assume Payments Not Prohibited in Absence
of Notice
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30
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Satisfaction
and Discharge
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30
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Subordination
Rights Not Impaired by Acts or Omissions of the Company or Holders
of Senior Debt
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30
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Right to Hold
Senior Debt
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30
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No Fiduciary
Duty of Trustee or Holders to Holders of Senior Debt
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30
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Distribution to
Holders of Senior Debt
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31
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Trustee's
Rights to Compensation, Reimbursement of Expenses and
Indemnification
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31
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Exception for
Certain Distributions
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31
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Certain
Definitions
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31
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ARTICLE XI
MISCELLANEOUS
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31
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Notices
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31
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Communication
by Holders with Other Holders
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32
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Certificate and
Opinion as to Conditions Precedent
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32
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Statements
Required in Certificate or Opinion
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32
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Rules by
Trustee and Agents
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32
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Legal
Holidays
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32
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No Recourse
Against Others
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33
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Duplicate
Originals
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33
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Variable
Provisions.
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33
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Governing
Law
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34
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Waiver of Jury
Trial
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34
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Force
Majeure
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34
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USA PATRIOT
Act
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34
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EXHIBIT A (FACE OF
DEBENTURE)
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A-1
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EXHIBIT B (FORM OF INCUMBENCY CERTIFICATE)
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B-1
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CROSS-REFERENCE
TABLE
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Indenture Section
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310(a)(1)
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7.10
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(a)(2)
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7.10
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(a)(3)
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N.A.
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(a)(4)
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N.A.
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(a)(5)
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N.A.
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(b)
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7.08; 7.10
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(c)
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7.08
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311(a)
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7.11
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(b)
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7.11
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(c)
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N.A.
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312(a)
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2.05
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(b)
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11.02
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(c)
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N.A.
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313(a)
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7.05
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(b)(1)
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N.A.
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(b)(2)
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7.05
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(c)
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7.05
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(d)
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7.05
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314(a)(1)
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4.02
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(a)(2)
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4.02; 11.01
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(a)(3)
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4.02
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(a)(4)
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4.03
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(b)
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N.A.
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(c)
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2.02; 7.02(b); 8.01(a)(3)
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(c)(1)
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2.02; 7.02(b); 8.01(a)(3)
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(c)(2)
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2.02; 7.02(b); 8.01(a)(3)
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(c)(3)
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N.A.
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(d)
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N.A.
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(e)
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4.03; 11.04
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(f)
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4.03
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315(a)(1)
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6.05; 7.01(b)(1)
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(a)(2)
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7.01(b)(1)
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(b)
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7.05; 11.01
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(c)
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7.01(a)
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(d)(1)
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7.01(b)
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(d)(2)
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7.01(c)(2)
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(d)(3)
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6.05; 7.01(c)(2)
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(e)
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6.09
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316(a) (last
sentence)
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2.09
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(a)(1)(A)
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6.05
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(a)(1)(B)
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6.04
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(a)(2)
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N.A.
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(b)
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6.07
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(c)
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9.04
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317(a)(1)
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6.03
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(a)(2)
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6.10
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(b)
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2.04
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318(a)
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1.04
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N.A. means not
applicable.
Note: This Cross-Reference Table
shall not, for any purpose, be deemed to be part of this
Indenture.
INDENTURE dated as of ______________________,
2009, between GERMAN AMERICAN BANCORP, INC., an Indiana corporation
(" Company "), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a
national banking association, as Trustee (" Trustee
").
Each party agrees as follows for the benefit of
the other party and for the equal and ratable benefit of the
Holders of the Company's 8% Redeemable Subordinated Debentures Due
2019 (" Debentures "):
ARTICLE I
DEFINITIONS AND RULES OF
CONSTRUCTION,
APPLICABILITY OF THE TRUST
INDENTURE ACT
Section 1.01.
Definitions .
" Affiliate ." Any Person
controlling or controlled by or under common control with the
referenced Person. " Control " for this
definition means the power to direct the management and policies of
a Person, directly or indirectly, whether through the ownership of
voting securities, by contract, or otherwise. The terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
" Agent ." Any Registrar or
Paying Agent.
" Applicable Procedures.
" With respect to any transfer or exchange of or for
beneficial interests in any global Debenture, the rules and
procedures of the Depositary, Euroclear and Clearstream that apply
to such transfer or exchange.
" Bank. " German American
Bancorp, the Company's wholly-owned Indiana bank subsidiary (and
its successors).
" Board ." The Board of
Directors of the Person or any officer or committee thereof
authorized to act for such Board.
" Business Day ." A day that
is not a Legal Holiday.
" Clearstream ." Clearstream
Banking, S.A.
" the Company ." The party
named as such above until a successor which duly assumes the
obligations upon the Debentures and under the Indenture replaces it
and thereafter means the successor.
" Debentures ." The Debentures
described above issued under this Indenture.
" Debt " means, with respect to any
Person, (i) any obligation of such Person to pay the principal
of, premium of, if any, interest on (including interest accruing on
or after the filing of any petition in bankruptcy or for
reorganization relating to the Company, whether or not a claim for
such post-petition interest is allowed in such proceeding),
penalties, reimbursement or indemnification amounts, fees, expenses
or other amounts relating to any indebtedness, and any other
liability, contingent or otherwise, of such Person (A) for
borrowed money (including instances where the recourse of the
lender is to the whole of the assets of such Person or to a portion
thereof), (B) evidenced by a note, debenture or similar
instrument (including a purchase money obligation) including
securities, (C) for any letter of credit or performance bond
in favor of such Person, or (D) for the payment of money
relating to a capitalized lease obligation; (ii) any liability
of others of the kind described in the preceding clause (i), which
the Person has guaranteed or which is otherwise its legal
liability; (iii) any obligation of the type described in
clauses (i) and (ii) secured by a lien to which the
property or assets of such Person are subject, whether or not the
obligations secured thereby shall have been assumed by or shall
otherwise be such Person's legal liability; and (iv) any and
all deferrals, renewals, extensions and refunding of, or
amendments, modifications or supplements to, any liability of the
kind described in any of the preceding clauses (i), (ii) or
(iii).
" Default ." Any event which
is, or after notice or passage of time would be, an Event of
Default.
" Depositary. " With respect
to the Debentures issuable or issued in whole or in part in global
form, the person specified in Section 2.11 hereof as the
Depositary with respect to the Debentures, and any and all
successors thereto appointed as depositary hereunder and having
become such pursuant to the applicable provision of this
Indenture.
" Euroclear. " Euroclear Bank,
S.A./N.V., as operator of the Euroclear system.
" Exchange Act ." The
Securities Exchange Act of 1934, as amended.
" FDIC ." The Federal Deposit
Insurance Corporation.
" FRB ." The Federal Reserve
Board of Governors.
" Holder ." A Person in whose
name a Debenture is registered.
" Indenture ." This Indenture
as amended from time to time, including the terms of the Debentures
and any amendments.
" Maximum Principal Amount.
" _______ Million Dollars and No Cents
($__,000,000.00).
" Maturity Date
." March 30, 2019.
" Officers' Certificate ." A
certificate signed by two Officers, one of whom must be the Chief
Executive Officers, a President, the Treasurer, the Chief Financial
Officer or a Vice-President of the Company.
" Opinion of Counsel
." Written opinion from legal counsel who is acceptable
to the Trustee.
" Person ." Any individual,
corporation, partnership, joint venture, association, limited
liability company, joint stock company, trust, unincorporated
organization or government or other agency or political subdivision
thereof.
" Principal " of a Debenture means the
principal of the Debenture plus the premium, if any, on the
Debenture which is due or overdue or is to become due at the
relevant time.
" Proceeding ." A liquidation,
dissolution, bankruptcy, insolvency, reorganization, receivership
or similar proceeding under Bankruptcy Law, an assignment for the
benefit of creditors, any marshalling of assets or liabilities, or
winding up or dissolution, but shall not include any transaction
permitted by and made in compliance with Article V
.
" Representative ." The
indenture trustee or other trustee, agent or representative for an
issue of Senior Debt.
" SEC ." The U.S. Securities
and Exchange Commission.
" Securities Act ." The
Securities Act of 1933, as amended.
" Senior Debt ." All Debt of
the Company of whatever kind, whenever incurred, and as outstanding
at any time, including all claims of general creditors of the
Company (which shall expressly exclude all indebtedness incurred in
connection with, or relating to, any trust preferred securities
caused to be issued by, or reflected in the consolidated financial
statements of, the Company, but shall expressly include all senior
indebtedness of the Company for borrowed money, similar obligations
arising from off-balance sheet guarantees and direct credit
substitutes, and obligations associated with derivative products
such as interest rate and foreign exchange contracts, commodity
contracts, and similar arrangements), but excluding any debt
incurred in connection with this Indenture.
" TIA ." The Trust Indenture
Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb), as amended,
as in effect on the date of this Indenture, except as provided in
Sections 1.04 and 9.03 .
" Trust Officer ." Any officer
or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters or to whom a matter
concerning the Indenture may be referred.
" Trustee ." The party named
as such above until a successor replaces it and thereafter means
the successor.
" U.S. Government Obligations
." Securities that are direct, noncallable,
nonredeemable obligations of, or noncallable, nonredeemable
obligations guaranteed by, the United States for the timely payment
of which obligation or guarantee the full faith and credit of the
United States is pledged, or funds consisting solely of such
securities, including funds managed by the Trustee or one of its
Affiliates (including such funds for which it or its Affiliates
receives fees in connection with such management).
Section 1.02.
Other Definitions .
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Defined in Section
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" Bankruptcy
Law "
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Section 6.01
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" Code
Provision "
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Section 6.01
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" Defaulted
Interest "
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Section 2.13
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"
Distribution "
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Section 10.14
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" Event of
Default "
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Section 6.01
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" Indirect
Participant "
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Section 2.11
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" Legal
Holiday "
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Section 11.06
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" Notice
"
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Section 11.01
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"
Officer "
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Section 11.09
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"
Participant "
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Section 2.11
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" Paying
Agent "
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Section 2.03
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" Payment
Blockage Period "
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Section 10.14
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"
Proceeding "
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Section 1.01
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"
Registrar "
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Section 2.03
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" Senior
Debt Default Notice "
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Section 10.14
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" Senior
Debt Payment Default "
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Section 10.14
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Section 1.03.
Rules of Construction . Unless the context otherwise
requires:
(a) a
term defined in Section 1.01 or 1.02 has the meaning
assigned to it therein, and terms defined in the TIA have the
meanings assigned to them in the TIA;
(b) an
accounting term not otherwise defined has the meaning assigned to
it in accordance with generally accepted accounting principles in
the United States;
(c) "or"
is not exclusive;
(d) words
in the singular include the plural, and words in the plural include
the singular;
(e) provisions
apply to successive events and transactions;
(f) "herein,"
"hereof" and other words of similar import refer to this Indenture
as a whole and not to any particular Article, Section or other
subdivision; and
(g) "including"
means including without limitation.
Section 1.04.
Trust Indenture Act . The provisions of TIA Sections 310
through 317 that impose duties on any Person (including the
provisions automatically deemed included herein unless expressly
excluded by this Indenture) are a part of and govern this Indenture
upon and so long as the Indenture and Debentures are subject to the
TIA. If any provision of this Indenture limits,
qualifies or conflicts with such duties, such imposed duties shall
control. If a provision of the TIA requires or permits a
provision of this Indenture and the TIA provision is amended, then
the Indenture provision shall be automatically amended to like
effect.
ARTICLE II
THE
DEBENTURES
Section 2.01. Form
and Dating . The Debentures and the certificate
of authentication shall be substantially in the form of
Exhibit A , which is hereby incorporated in and
expressly made a part of this Indenture. Each Debenture
shall bear the following legend: "THIS OBLIGATION IS NOT
A DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER FEDERAL AGENCY." The Debentures may also
have notations, legends or endorsements required by Section
2.11 , law, stock exchange rule, automated quotation system,
agreements to which the Company is subject, or
usage. Each Debenture shall be dated the date of its
authentication.
Section 2.02.
Execution and Authentication . Two
Officers shall sign the Debentures for the Company by manual or
facsimile signature. If an Officer whose signature is on
a Debenture no longer holds that office at the time the Debenture
is authenticated, the Debenture is still valid. A
Debenture shall not be valid until an authorized signatory of the
Trustee signs the certificate of authentication on the
Debenture. The signature shall be conclusive evidence
that the Debenture has been authenticated under this
Indenture. The Trustee shall authenticate Debentures for
original issue up to the amount stated in paragraph 4 of Exhibit
A in accordance with an Officers' Certificate of the
Company.
The aggregate principal amount of Debentures
outstanding at any time may not exceed the Maximum Principal Amount
except as provided in Section 2.07 . The Trustee
may appoint an authenticating agent acceptable to the Company to
authenticate Debentures. An authenticating agent may
authenticate Debentures whenever the Trustee may do
so. Each reference in this Indenture to authentication
by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with
the Company or an Affiliate.
Section 2.03.
Agents . The Company shall maintain an
office or agency where Debentures may be presented for registration
of transfer or for exchange (" Registrar ") and where
Debentures may be presented for payment (" Paying Agent
"). Whenever the Company must issue or deliver
Debentures pursuant to this Indenture, the Trustee shall
authenticate the Debentures at the Company's
request. The Registrar shall keep a register of the
Debentures and of their transfer and exchange.
The Company may appoint more than one Registrar
or Paying Agent. The Company shall notify the Trustee of
the name and address of any Agent not a party to this
Indenture. If the Company does not appoint another
Registrar or Paying Agent, the Trustee shall act as
such.
Section 2.04.
Paying Agent To Hold Money in Trust . On
or prior to 10:00 a.m., New York City time, on each
due date of the Principal and interest on any Debenture, the
Company shall deposit with the Paying Agent a sum sufficient to pay
such Principal and interest when so becoming due. The
Company shall require each Paying Agent (other than the Trustee) to
agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all money held by the Paying
Agent for the payment of the Principal of or interest on the
Debentures, will notify the Trustee of any deficiency by the
Company in making any such payment, and will comply with Article
X . While any such deficiency continues, the Trustee
may require a Paying Agent to pay all money held by it to the
Trustee. The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee and to account for
any funds disbursed by the Paying Agent. Upon complying
with this Section, the Paying Agent shall have no further liability
for the money delivered to the Trustee. If the Company
or any Affiliate acts as Paying Agent, it shall segregate the money
held by it as Paying Agent and hold it as a separate trust
fund.
Section 2.05.
Holder Lists . The Trustee shall preserve
in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the
Registrar shall furnish to the Trustee, in writing at least 10
Business Days before each interest payment date and at such other
times as the Trustee may request, a list in such form and as of
such date as the Trustee may reasonably require of the names and
addresses of Holders.
Section 2.06.
Transfer and Exchange .
The Debentures shall be issued in registered
form and shall be transferable only upon surrender of a Debenture
for registration of transfer. When a Debenture is
presented to the Registrar with a request to register a transfer or
to exchange them for an equal principal amount of Debentures of
other denominations, the Registrar shall register the transfer or
make the exchange if its requirements for such transactions are met
and the Debenture has not been redeemed. The Company may
charge a reasonable fee for any registration of transfer or
exchange (including for any tax or governmental charge) but not for
any exchange pursuant to Sections 2.10 , 3.07 or
9.05 . All Debentures presented or surrendered
for exchange or registration of transfer, as provided in this
Section 2.06 , shall be accompanied (if so required by the
Company or the Debenture Registrar) by a written instrument or
instruments of transfer, in form satisfactory to the Company or the
Debenture Registrar, duly executed by the registered holder or by
such holder’s duly authorized attorney.
All Debentures issued upon any transfer or
exchange pursuant to the terms of this Indenture will evidence the
same debt and will be entitled to the same benefits under this
Indenture as the Debentures surrendered upon such transfer or
exchange.
Neither the Trustee nor the Registrar shall be
responsible for ascertaining whether any transfer hereunder
complies with the registration provisions of or any exemptions from
the Securities Act, applicable state securities laws or the
applicable laws of any other jurisdiction, the Employee Retirement
Income Security Act of 1974, as amended, the Internal Revenue Code
or the Investment the Company Act of 1940, as amended;
provided , that if a certificate is specifically required by
the express terms of this Section 2.06 to be delivered to
the Trustee or the Registrar by a holder or transferee of a
Debenture, the Trustee and the Registrar shall be under a duty to
receive and examine the same to determine whether or not the
certificate substantially conforms on its face to the requirements
of this Indenture and shall promptly notify the party delivering
the same if such certificate does not comply with such
terms.
Section 2.07.
Replacement Debentures . If the Holder of
a Debenture claims that the Debenture has been lost, destroyed or
wrongfully taken, then, in the absence of notice to the Company
that the Debenture has been acquired by a protected purchaser, the
Company shall issue a replacement Debenture. An
indemnity bond must be provided which is sufficient in the judgment
of the Trustee and the Company to protect the Company, the Trustee
and the Agents from any loss which any of them may suffer if a
Debenture is replaced. The Company or the Trustee may
charge the Holder for its expenses in replacing a
Debenture. Every replacement Debenture is an additional
obligation of the Company.
Section 2.08.
Outstanding Debentures .
(a) Debentures
outstanding at any time are all Debentures authenticated by the
Trustee except for those canceled by the Registrar, those delivered
to it for cancellation and those described in this Section as not
outstanding. A Debenture does not cease to be
outstanding because the Company or an Affiliate holds the
Debenture.
(b) If
a Debenture is replaced pursuant to Section 2.07 , it ceases
to be outstanding unless the Company receives proof satisfactory to
it that the replaced Debenture is held by a protected
purchaser.
(c) If
Debentures are considered paid under Section 4.01 , they
cease to be outstanding and interest on them ceases to
accrue.
Section 2.09.
Treasury Debentures Disregarded for Certain Purposes
. In determining whether the Holders of the required
Principal amount of Debentures have concurred in any direction,
waiver or consent, Debentures owned by the Company or an Affiliate
shall be disregarded and deemed not to be outstanding, except that,
for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only
Debentures which a Trust Officer of the Trustee actually knows are
so owned shall be so disregarded. Debentures so owned
which have been pledged in good faith shall not be disregarded if
the pledgee establishes to the satisfaction of the Trustee the
pledgee's right to deliver any such direction, waiver or consent
with respect to the Debentures and that the pledgee is not the
Company or any other obligor upon the Debentures or any Affiliate
of the Company or of such other obligor.
Section 2.10.
Temporary Debentures . Until definitive
Debentures are ready for delivery, the Company may use temporary
Debentures. Temporary Debentures shall be substantially
in the form of definitive Debentures but may have variations that
the Company considers appropriate for temporary
Debentures. Without unreasonable delay, the Company
shall deliver definitive Debentures in exchange for temporary
Debentures.
Section 2.11. Global
Debentures .
(a) The
Company may issue some or all of the Debentures in temporary or
permanent global form. The Company may issue a global
Debenture only to a Depositary. A Depositary may
transfer a global Debenture only to its nominee or to a successor
Depositary. A global Debenture shall represent the
amount of Debentures specified in the global
Debenture. A global Debenture may have variations that
the Depositary requires or that the Company considers appropriate
for such a security.
(b) A
global Debenture may not be transferred except as a whole by the
depositary to a nominee of the depositary, by a nominee of the
depositary to the depositary or to another nominee of the
depositary, or by the depositary or any such nominee to a successor
depositary or a nominee of such successor depositary.
(c) Beneficial
owners of part or all of a global Debenture are subject to the
rules of the Depositary as in effect from time to time.
(d) The
transfer and exchange of beneficial interests in the Global
Debentures will be effected through the Depositary, in accordance
with the provisions of this Indenture and the Applicable
Procedures. Beneficial interests in the Global
Debentures will be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities
Act. Transfers of beneficial interests in the Global
Debentures also will require compliance with either subparagraph
(1) or (2) below, as applicable, as well as one or more of the
other following subparagraphs, as applicable:
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Transfer of
Beneficial Interests in the Same Global Debenture
. Beneficial interests in
any Global Debenture may be transferred to persons who take
delivery thereof in the form of a beneficial interest in the same
global Debenture. No written orders or instructions
shall be required to be delivered to the Registrar to effect the
transfers described in this Section 2.11(d)(1) .
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All Other
Transfers and Exchanges of Beneficial Interests in Global
Debentures . In connection with all transfers and
exchanges of beneficial interests that are not subject to
Section 2.11(d)(1) above, the transferor of such beneficial
interest must deliver to the Registrar either:
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(i) a
written order from a person who holds a beneficial interest in a
global Debenture directly (a " Participant ") or indirectly
(an " Indirect Participant ") given to the depositary in
accordance with the Applicable Procedures directing the Depositary
to credit or cause to be credited a beneficial interest in another
global Debenture in an amount equal to the beneficial interest to
be transferred or exchanged; and
(ii) instructions
given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with
such increase; or
(i) a
written order from a Participant or an Indirect Participant given
to the Depositary and Trustee in accordance with the Applicable
Procedures directing the Depositary and Trustee to cause to be
issued a Debenture in registered form in an amount equal to the
beneficial interest to be transferred or exchanged; and
(ii) instructions
given by the Depositary to the Registrar containing information
regarding the Person in whose name such Debenture in registered
form shall be registered to effect the transfer or exchange
referred to in (i) above.
(C) if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act.
(3)
Transfer or Exchange of Beneficial Interests for Debentures in
registered forms . If any holder of a
beneficial interest in a global Debenture proposes to exchange such
beneficial interest for a Debenture in registered form or to
transfer such beneficial interest to a person who takes delivery
thereof in the form of a Debenture in registered form, then,
following the receipt of such documentation from the Participant or
Indirect Participant required by the Applicable Procedures, the
Trustee shall cause the aggregate principal amount of the
applicable global Debenture to be reduced accordingly pursuant to
Section 2.11 hereof, and the Company shall execute and the
Trustee shall authenticate and deliver to the person designated in
the instructions a Debenture in registered form in the appropriate
principal amount. Any Debenture in registered form
issued in exchange for a beneficial interest in a global Debenture
pursuant to this Section 2.11(3) shall be registered in such
name or names and in such authorized denomination or authorized
denominations as the holder of such beneficial interest shall
instruct the Registrar through instructions from the Depositary and
the Participant or Indirect Participant. The Trustee
shall deliver such Debenture in registered forms to the persons in
whose names such Debentures are so registered.
(4)
Transfer and Exchange of Debenture in registered form for
Beneficial Interests . If any Holder of a
Debenture in registered form proposes to exchange such Debenture
for a beneficial interest in a global Debenture or to transfer such
Debenture in registered form to a person who takes delivery thereof
in the form of a beneficial interest in a global Debenture, then,
following the receipt of such documentation from the Holder
required by the Applicable Procedures, the Trustee will cancel the
Debenture in registered form and increase or cause to be increased
the aggregate principal amount of the appropriate global
Debenture.
(5) All
global Debentures will be exchanged by the Company for Debentures
in registered form if:
(A) the
Company delivers to the Trustee notice from the Depositary that it
is unwilling or unable to continue to act as Depositary or that it
is no longer a clearing agency registered under the Exchange Act
and, in either case, a successor Depositary is not appointed by the
Company within 120 days after the date of such notice from the
Depositary; or
(B) the
Company in its sole discretion determines that the global
Debentures (in whole but not in part) should be exchanged for
registered Debentures and delivers a written notice to such effect
to the Trustee; or
(C) there
has occurred and is continuing a Default or Event of Default with
respect to the Debentures.
Upon the
occurrence of either of the preceding events in (A) or (B) above,
Debentures in registered form shall be issued in such names as the
Depositary shall instruct the Trustee. Global Debentures
also may be exchanged or replaced, in whole or in part, as provided
in Section 2.06 and Section 2.07
hereof. Every Debenture authenticated and delivered in
exchange for, or in lieu of, a global Debenture or any portion
thereof, pursuant to this Section 2.11 or Section
2.06 or Section 2.07 hereof, shall be authenticated and
delivered in the form of, and shall be, a global
Debenture. A global Debenture may not be exchanged for
another Debenture other than as provided in this Section
2.11 .
(e) The
Company, the Trustee and the Agents shall not be responsible for
any acts or omissions of a Depositary, for any Depositary records
of beneficial ownership interests or for any transactions between
the Depositary and beneficial owners.
(f) Any
global Debenture shall bear the following legend (in addition to
any other required legend):
"THIS GLOBAL
DEBENTURE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS DEBENTURE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT
OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06
OF THE INDENTURE, (2) THIS GLOBAL DEBENTURE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.11 OF THE INDENTURE,
(3) THIS GLOBAL DEBENTURE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (4) THIS
GLOBAL DEBENTURE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH
THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND
UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR DEBENTURES IN
REGISTERED FORM, THIS DEBENTURE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. [UNLESS THIS CERTIFICATE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55
WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE
ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR SUCH OTHER ENTITY AS MAY BE 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.]”
Section 2.12.
Cancellation . The Company at any time may
deliver Debentures to the Trustee for cancellation. The
Paying Agent, if not the Trustee, shall forward to the Trustee any
Debentures surrendered to it for payment. The Trustee
shall cancel all Debentures surrendered for registration of
transfer, exchange, payment or cancellation and shall dispose of
canceled Debentures according to its standard
procedures. The Company may not issue new Debentures to
replace Debentures that it has paid or which have been delivered to
the Trustee for cancellation.
Section 2.13.
Defaulted Interest . If the Company
defaults in a payment of interest on the Debentures (" Defaulted
Interest ") such Defaulted Interest shall cease to be payable
to the Holder on the relevant record date and shall be paid by the
Company, at its election, under either (a) or (b) below:
(a) The
Company may pay the Defaulted Interest together with interest
thereon to the Persons which are Holders on a subsequent special
record date. The Company shall notify the Trustee of the
amount of Defaulted Interest together with interest thereon to be
paid and pay over such amount to the Trustee. The
Trustee shall then fix a special record date and at the Company's
expense shall notify Holders not less than 10 days prior to such
special record date of the proposed payment, of the special record
date, and of the payment date.
(b) The
Company may make payment of Defaulted Interest together with
interest thereon in any lawful manner not inconsistent with the
requirements of any securities exchange or automated quotation
system on which the Debentures may be listed or designated for
issuance. The Company shall give prompt notice to the
Trustee and Holders that it intends to make payment pursuant to
this Section 2.13(b) and of the special record date of the
proposed payment, and of the payment date.
Section 2.14. CUSIP
Numbers . The Company in issuing Debentures may
use CUSIP numbers (if then generally in use) and, if so, the
Trustee shall use CUSIP numbers in notices of redemption as a
convenience to Holders; provided , that any such notice may
state that no representation is made as to the correctness of such
numbers either as printed on the Debentures or as contained in any
notice of redemption and that reliance may be placed only on the
other identification numbers printed on the Debentures and any such
redemption shall not be affected by any defect in or omission of
such numbers. The Company shall as promptly as
practicable notify the Trustee in writing of any change in the
CUSIP numbers.
ARTICLE III
REDEMPTION
Section 3.01.
General . Notwithstanding anything to the
contrary herein, no Debentures may be redeemed as of any redemption
date that occurs before March 30, 2012. The
Company may, at its option, redeem the Debentures, in whole or in
part, as of any redemption date that occurs on or after March 30,
2012, subject to prior consultation with the FRB and compliance
with Article III of this Indenture, at a redemption
price equal to 100% of the principal amount of the Debentures to be
redeemed.
Section 3.02.
Notice to Trustee .
(a) If
Debentures are to be redeemed, the Company shall, at least 45 days
before the redemption date (or such other time as the Trustee shall
agree), notify the Trustee of the redemption date, the Principal
amount of Debentures to be redeemed and the provision of the
Debentures permitting or requiring the redemption.
(b) The
Company may reduce the Principal amount of Debentures if it
notifies the Trustee of the amount of the credit and the basis for
it by delivery of an Officers' Certificate. If the
reduction is based on a credit for redeemed or canceled Debentures
that the Company has not previously delivered to the Trustee for
cancellation, the Company shall deliver such Debentures to the
Registrar before the selection of securities to be
redeemed.
(c) The
Company shall give each notice provided for in this Section at
least 30 days before the redemption date unless a shorter period is
satisfactory to the Trustee. If fewer than all the
Debentures are to be redeemed, the record date relating to such
redemption shall be selected by the Company and given to the
Trustee, which record date shall be not less than 15 days prior to
the redemption date.
Section 3.03.
Selection of Debentures To Be Redeemed
. If less than all the Debentures are to be redeemed,
subject to any conditions at redemption imposed by the FRB, the
Trustee shall select the Debentures to be redeemed by a method that
complies with the requirements, if any, of any stock exchange on
which the Debentures are listed and that the Trustee considers fair
and appropriate, which may include selection pro rata or by
lot. The Trustee shall make the selection from
Debentures outstanding not previously called for
redemption. The Trustee may select for redemption
portions of the Principal of Debentures that have denominations
larger than $10,000.00. Debentures and portions thereof
selected by the Trustee shall be in amounts of $10,000.00 or
integral multiples of $10,000.00. Provisions of this
Indenture that apply to Debentures called for redemption also apply
to portions of Debentures called for redemption.
Section 3.04.
Notice of Redemption . At least 30 days
but not more than 60 days before a redemption date, the Company
shall mail a notice of redemption to each Holder whose Debentures
are to be redeemed. The notice shall state that it is a
notice of redemption, identify the Debentures to be redeemed and
shall state:
(2) the
redemption price;
(3) the
name and address of the Paying Agent;
(4) that
Debentures called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(5) that,
unless the Company defaults in making such redemption payment or
the Paying Agent is prohibited from making such payment pursuant to
the terms of this Indenture, interest on Debentures (or portion
thereof) called for redemption ceases to accrue on and after the
redemption date; and
(6) list
the CUSIP number of the Debentures and state that no representation
is made as to the correctness or accuracy of the CUSIP number, if
any, listed in such notice or printed on the Debentures.
At the Company's written request, the Trustee
shall give the notice of redemption in the Company's name and at
its expense.
Section 3.05.
Effect of Notice of Redemption . Once
notice of redemption is sent, Debentures called for redemption
become due and payable on the redemption date at the redemption
price. Upon surrender to the Paying Agent, such
Debentures shall be paid at the redemption price stated in the
notice, plus accrued interest to the redemption
date. Failure to give notice or any defect in the notice
to any Holder shall not affect the validity of the notice to any
other Holder.
Section 3.06.
Deposit of Redemption Price; Accrual of Interest
.
(a) On
or before 10:00 a.m. New York City time, on the
redemption date, the Company shall deposit with the Paying Agent
(or, if the Company or any Affiliate is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the redemption
price of, and accrued interest on, all Debentures to be redeemed on
that date other than Debentures or portions of Debentures called
for redemption which have been delivered by the Company to the
Registrar for cancellation.
(b) Unless
the Company shall default in the payment of Debentures (and accrued
interest) called for redemption, interest on such Debentures shall
cease to accrue after the redemption date.
Section 3.07.
Debentures Redeemed in Part . Upon
surrender of a Debenture that is redeemed in part, the Company
shall deliver to the Holder (at the Company's expense) a new
Debenture equal in Principal amount to the unredeemed portion of
the Debenture surrendered.
Section 3.08.
No Sinking Fund . The Debentures are not
entitled to the benefit of any sinking fund.
ARTICLE IV
COVENANTS
Section 4.01.
Payment of Debentures . The Company shall
pay the Principal of and interest on the Debentures on the dates
and in the manner provided in the Debentures and this
Indenture. Principal and interest shall be considered
paid on the date due if the Paying Agent holds in accordance with
this Indenture on that date money sufficient to pay all Principal
and interest then due and the Paying Agent is not prohibited from
paying such money to the Holders on such date pursuant to the terms
of this Indenture. The Company shall pay interest on
overdue Principal at the rate borne by the Debentures; it shall pay
interest on overdue Defaulted Interest at the same rate to the
extent lawful.
Section 4.02. SEC
Reports . The Company shall file with the
Trustee within 15 days after it files them with the SEC copies of
the annual reports and of the information, documents and other
reports which the Company is required to file with the SEC pursuant
to Section 13 or 15(d) of the Exchange Act. The Company
will cause any quarterly and annual reports which it makes
available to its shareholders to be mailed to the
Holders. The Company will also comply with the other
provisions of TIA Section 314(a). Delivery of such
reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall
not constitute notice or constructive notice of any information
contained therein or determinable from information contained
therein, including the Company's compliance with any of its
covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers' Certificates).
Section 4.03.
Compliance Certificate . The Company shall
deliver to the Trustee, within 105 days after the end of each
fiscal year of the Company, a brief certificate signed by the
principal executive officer, principal financial officer or
principal accounting officer of the Company, as to the signer's
knowledge of the Company's compliance with all conditions and
covenants contained in this Indenture (determined without regard to
any period of grace or requirement of notice provided
herein).
Section 4.04.
Notice of Certain Events . The Company
shall give prompt written notice to the Trustee and any Paying
Agent of (i) any Proceeding, (ii) any Default or Event of
Default, (iii) any cure or waiver of any Default or Event of
Default, (iv) any Senior Debt Payment Default or Senior Debt
Default Notice, and (v) if and when the Debentures are listed
on any stock exchange.
ARTICLE V
SUCCESSORS
Section 5.01.
When the Company May Merge, etc . The
Company shall not consolidate or merge with or in
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