EX-4.18






Exhibit 4.18




FIRST MERCHANTS CAPITAL TRUST III

AMENDED AND RESTATED TRUST AGREEMENT NO. 1




     This AMENDED AND RESTATED TRUST AGREEMENT NO. 1, dated as of March 18, 2009 (this “Trust
Agreement”), is among (i) FIRST MERCHANTS CORPORATION, an Indiana corporation, as depositor (the
“Depositor”), (ii) U.S. BANK TRUST NATIONAL ASSOCIATION (“USBTNA”), a national banking association,
as trustee, and (iii) Michael C. Rechin, Jami L. Bradshaw and Mark K. Hardwick, each an individual,
as trustees (each of such trustees in (ii) and (iii) a “Trustee” and collectively, the “Trustees”).



     WHEREAS, the Depositor, First Union Trust Company, National Association, as trustee (the
“Former Trustee”), and Michael L. Cox, Larry R. Helms, Esq. and Mark K. Hardwick, each an
individual, as trustee (the “Original Individual Trustees”), entered into a Trust Agreement, dated
as of December 12, 2001 (the “Original Trust Agreement”), whereby the Former Trustee and the
Original Individual Trustees were appointed trustees of the Trust (as defined below);



     WHEREAS, the USBTNA is the successor to the Former Trustee;



     WHEREAS, Michael L. Cox and Larry R. Helms, Esq. are no longer trustees of the Trust and the
Depositor wishes to appoint Michael C. Rechin and Jami L. Bradshaw as trustees; and



     WHEREAS, the Depositor and the Trustees wish to amend and restate the Original Trust
Agreement;



     NOW, THEREFORE, the Depositor and the Trustees hereby agree that the Original Trust Agreement
shall be amended and restated as follows:



     1. The trust created hereby (the “Trust”) shall be known as “First Merchants Capital Trust
III” in which name the Trustees, or the Depositor to the extent provided herein, may engage in the
transactions contemplated hereby, make and execute contracts, and sue and be sued.



     2. The Depositor hereby assigns, transfers conveys and sets over to the Trustees the sum of
$10.00 and appoints the Trustees as trustees of the Trust. The Trustees hereby accept such
appointment and acknowledge receipt of such amount in trust from the Depositor, which amount shall
constitute the initial trust estate. The Trustees hereby declare that they will hold the trust
estate in trust for the Depositor. It is the intention of the parties hereto that the Trust
created hereby constitute a statutory trust under the Delaware Statutory Trust Act, Chapter 38 of
Title 12 of the Delaware Code, 12 Del. C. § 3801, et seq. (the “Statutory
Trust Act”), and that this document constitutes the governing instrument of the Trust. USBTNA, as
Trustee, is hereby authorized and directed to execute and file an amendment to the certificate of
trust in the form of Exhibit A attached hereto with the Delaware Secretary of State in accordance
with the provisions of the Statutory Trust Act.



     3. The Depositor and the Trustees will enter into an amended and restated Trust Agreement,
satisfactory to each such party and substantially in the form included as an exhibit to
the 1933 Act Registration Statement (as defined below), to provide for the contemplated
operation of the Trust created hereby and the issuance of the Preferred securities and Common



 









 







securities referred to therein. Prior to the execution and delivery of such amended and restated
Trust Agreement, the Trustees shall not have any duty or obligation hereunder or with respect to
the trust estate, except as otherwise required by applicable law or as may be necessary to obtain
prior to such execution and delivery of any licenses, consents or approvals required by applicable
law or otherwise.



     4. The Depositor and the Trustees hereby authorize and direct the Depositor, as the sponsor of
the Trust, (i) to file with the Securities and Exchange Commission (the “Commission”) and execute,
in each case on behalf of the Trust, (a) the Registration Statement on Form S-3 (the “1933 Act
Registration Statement”), including any pre-effective or post-effective amendments to the 1933 Act
Registration Statement, relating to the registration under the Securities Act of 1933, as amended,
(the “1933 Act”) of the Preferred Securities of the Trust (including any registration statement for
the same offering that is to be effective upon filing pursuant to Rule 462(b) under the 1933 Act),
and (b) a Registration Statement on Form 8-A (the “1934 Act Registration Statement”) (including all
pre-effective and post-effective thereto) relating to the registration of the Preferred Securities
of the Trust under the Securities Exchange Act of 1934, as amended; (ii) to file with the New York
Stock Exchange, Inc., The Nasdaq National Market or any other national stock exchange (each, an
“Exchange”) and execute on behalf of the Trust one or more listing applications and all other
applications, statements, certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any of the Exchanges; (iii) to file and
execute on behalf of the Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents as shall be
necessary or desirable to register the Preferred Securities under the securities or blue sky laws
of such jurisdictions as the Depositor, on behalf of the Trust, may deem necessary or desirable;
and (iv) to execute on behalf of the Trust that certain Underwriting Agreement relating to the
Preferred Securities, among the Trust, the Depositor and the Underwriter named therein,
substantially in the form included as an exhibit to the 1933 Act Registration Statement. In the
event that any filing referred to in clauses (i), (ii) and (iii) above is required by the rules and
regulations of the Commission, an Exchange or state securities or blue sky laws, to be executed on
behalf of the Trust by one or more of the Trustees, each of the Trustees, in its, her or his
capacity as a Trustee of the Trust, is hereby authorized and, to the extent so required, directed
to join in any such filing and to execute on behalf of the Trust any and all of the foregoing, it
being understood that USBTNA in its capacity as a Trustee of the Trust shall not be required to
join in any such filing or execute on behalf of the Trust any such document unless required by the
rules and regulations of the Commission, the Exchange or state securities or blue sky laws. In
connection with the filings referred to above, the Depositor and Michael C. Rechin, Jami L.
Bradshaw and Mark K. Hardwick, each as Trustees and not in their individual capacities, hereby
constitute and appoint Michael C. Rechin, Jami L. Bradshaw and Mark K. Hardwick, and each of them,
as its true and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the Depositor or such Trustee or in the Depositor’s or such Trustees’ name,
place and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to the 1933 Act Registration Statement and the 1934 Act Registration
Statement and to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, the Exchange and administrators of the state securities or blue sky
laws, granting unto said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection therewith, as fully
to all intents and purposes as the Depositor



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or such Trustee might or could to in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their respective substitute or substitutes, shall
do or cause to be done by virtue hereof.



     5. This Trust Agreement may be executed in one or more counterparts.



     6. The number of Trustees initially shall be four and thereafter the number of Trustees shall
be such number as shall be fixed from time to time by a written instrument signed by the Depositor
which may increase or decrease the number of Trustees; provided, however, that to the extent
required by the Statutory Trust Act, one Trustee shall either be a natural person who is a resident
of the State of Delaware or, if not a natural person, an entity which has its principal place of
business in the State of Delaware and otherwise meets the requirements of applicable Delaware law.
Subject to the foregoing, the Depositor is entitled to appoint or remove without cause any Trustee
at any time. The trustees may resign upon thirty days’ prior notice to the Depositor.



     7. This Trust Agreement shall be governed by, and construed in accordance with, the laws of
the State of Delaware (without regard to conflict of laws of principles).



     8. (a) The Trustees (the “Fiduciary Indemnified Persons”) shall not be liable, responsible
or accountable in damages or otherwise to the Trust, the Depositor, the Trustees or any holder of
the Trust’s securities (the Trust, the Depositor and any holder of the Trust’s securities being a
“Covered Person”) for any loss, damage or claim incurred by reason of any act or omission performed
or omitted by the Fiduciary Indemnified Persons in good faith on behalf of the Trust and in a
manner the Fiduciary Indemnified Persons reasonably believed to be within the scope of authority
conferred on the Fiduciary Indemnified Persons by this Trust Agreement or by law, except that the
Fiduciary Indemnified Persons shall be liable for any such loss, damage or claim incurred by reason
of the Fiduciary Indemnified Person’s negligence or willful misconduct with respect to such acts or
omissions.



          (b) The Fiduciary Indemnified Persons shall be fully protected in relying in good faith upon
the records of the Trust and upon such information, opinions, reports or statements presented to
the Trust by any person as to matters the Fiduciary Indemnified Persons reasonably believe are
within such other person’s professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits, losses or any other
facts pertinent to the existence and amount of assets from which distributions to holders of the
Trust’s securities might properly be paid.



     9. The Depositor agrees, to the fullest extent permitted by applicable law,



          (a) to indemnify and hold harmless each Fiduciary Indemnified Person, or any of its officers,
directors, shareholders, employees, representatives or agents, from and against any loss, damage,
liability, tax, penalty, expense or claim of any kind or nature whatsoever incurred by the
Fiduciary Indemnified Persons by reason of the creation, operation or termination of the Trust in a
manner the Fiduciary Indemnified Persons reasonably believed to be within the scope of authority
conferred on the Fiduciary Indemnified Persons by this Trust Agreement, except that



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no Fiduciary Indemnified Persons shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by the Fiduciary Indemnified Persons by reason of negligence or willful
misconduct with respect to such acts or omissions; and



          (b) to advance expenses (including legal fees) incurred by a Fiduciary Indemnified Person in
defending any claim, demand, action, suit or proceeding shall, from time to time, prior to the
final disposition of such claim, demand, action, suit or proceeding, upon receipt by the Trust of
an undertaking by or on behalf of such Fiduciary Indemnified Persons to repay such amount if it
shall be determined that such Fiduciary Indemnified Person is not entitled to be indemnified as
authorized in the preceding subsection.



     10. The provisions of Section 9 shall survive the termination of this Trust Agreement or the
earlier resignation or removal of the Fiduciary Indemnified Persons.



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     IN WITNESS WHEREOF, the parties hereto have caused this Amended and Restated Trust Agreement
No. 1 to be duly executed as of the day and year first above written.



	 	 	 	 	 
	 	FIRST MERCHANTS CORPORATION, as

Depositor

 	 
	 	By:  	/s/ Jami L. Bradshaw
 	 
	 	 	Name:  	Jami L. Bradshaw 	 
	 	 	Title:  	Senior Vice President & Chief Accounting
Officer 	 
	 
	 	U.S. BANK TRUST NATIONAL ASSOCIATION,

as Trustee

 	 
	 	By:  	/s/ Annette E. Morgan
 	 
	 	 	Name:  	Annette E. Morgan 	 
	 	 	Title:  	Assistant Vice President 	 
	 
	 	                                              /s/ Michael C. Rechin
 	, as Trustee
	 	Michael C. Rechin 	 
	 
	 	                                              /s/ Jami L. Bradshaw
 	, as Trustee
	 	Jami L. Bradshaw 	 
	 
	 	                                              /s/ Mark K. Hardwick
 	, as Trustee
	 	Mark K. Hardwick 	 



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EXHIBIT A




 









 










CERTIFICATE OF AMENDMENT

TO

CERTIFICATE OF TRUST

OF

FIRST MERCHANTS CAPITAL TRUST III





          THIS Certificate of Amendment to Certificate of Trust of First Merchants Capital Trust III
(the “Trust”) is being duly executed and filed by the undersigned trustee to amend the Certificate
of Trust of the Trust which was filed on December 12, 2001 (the “Certificate of Trust”), with the
Secretary of State of the State of Delaware under the Delaware Statutory Trust Act (12 Del.
C. § 3801 et seq.) (the “Act”).




	 	1.	 	Name. The name of the statutory trust is First
Merchants Capital Trust III.
	 
	 	2.	 	Amendment of Trust. The Certificate of Trust of the
Trust is hereby amended by changing the name and business address of the
trustee of the Trust with a principal place of business in the State of
Delaware to: U.S. Bank Trust National Association, 300 Delaware Avenue,
9th Floor, Wilmington, Delaware 19801, Attention: Corporate Trust
Group.
	 
	 	3.	 	Effective Date. This Certificate of Amendment shall be
effective upon filing.





          IN WITNESS WHEREOF, the undersigned trustee of the Trust has duly executed this Certificate of
Amendment in accordance with Section 3811 of the Act.



	 	 	 	 	 
	 	U.S. BANK TRUST NATIONAL ASSOCIATION,

not in its individual capacity but solely as Trustee

 	 
	 	By:  	/s/ Annette E. Morgan
 	 
	 	 	Name:  	Annette E. Morgan 	 
	 	 	Title:  	Assistant Vice President