Exhibit 4.6
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FIRST SUPPLEMENTAL INDENTURE
between
MERCANTILE BANCORPORATION INC., as Issuer,
and
THE CHASE MANHATTAN BANK, as Trustee
Dated as of February 4, 1997
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS ............................................... 2
SECTION 1.1 ............................................... 2
ARTICLE II GENERAL TERMS AND CONDITIONS OF THE DEBENTURES ............ 4
SECTION 2.1 ............................................... 4
SECTION 2.2 ............................................... 5
SECTION 2.3 ............................................... 5
SECTION 2.4 ............................................... 5
SECTION 2.5 ............................................... 7
SECTION 2.6 ............................................... 9
ARTICLE III REDEMPTION OF THE DEBENTURES .............................. 9
SECTION 3.1 ............................................... 9
SECTION 3.2 ............................................... 9
ARTICLE IV EXTENSION OF INTEREST PAYMENT PERIOD ...................... 10
SECTION 4.1 ............................................... 10
SECTION 4.2 ............................................... 10
ARTICLE V EXPENSES AND GUARANTEE .................................... 11
SECTION 5.1 ............................................... 11
SECTION 5.2 ............................................... 12
ARTICLE VI FORM OF DEBENTURE ......................................... 12
ARTICLE VII MISCELLANEOUS ............................................. 20
FIRST SUPPLEMENTAL INDENTURE, dated as of February 4, 1997 (the "First
Supplemental Indenture"), between Mercantile Bancorporation Inc., a Missouri
corporation (the "Company") and The Chase Manhattan Bank, as trustee (the
"Trustee"), under the Indenture dated as of February 4, 1997 between the Company
and the Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to the Trustee to
provide for the issuance of the Company's unsecured junior subordinated debt
securities to be issued from time to time in one or more series as might be
determined by the Company under the Indenture, in an unlimited aggregate
principal amount which may be authenticated and delivered as provided in the
Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a series of its Debt Securities to be known as
Floating Rate Junior Subordinated Deferrable Interest Debentures due 2027 (the
"Initial Debentures"), and to provide for, if and when issued in exchange for
the Initial Debentures pursuant to the Indenture and the Registration Agreement,
a series of its Debt Securities to be known as Floating Rate Junior Subordinated
Deferrable Interest Debentures due 2027 (the "Exchange Debentures" and together
with the Initial Debentures, the "Debentures"), the form and substance of each
such series of Debentures and the terms, provisions and conditions thereof to be
set forth as provided in the Indenture and this First Supplemental Indenture;
WHEREAS, Mercantile Capital Trust I, a Delaware statutory business trust
(the "Trust"), has offered for sale pursuant to an exemption from the
registration requirements of the Securities Act of 1933, $150,000,000 aggregate
liquidation amount of Floating Rate Capital Trust Pass-through Securities (the
"Initial Capital Securities"), representing undivided beneficial interests in
the assets of the Trust and proposes to invest the proceeds from such offering,
together with the proceeds of the issuance and sale by the Trust to the Company
of its common securities, in $154,640,000 aggregate principal amount of the
Debentures;
WHEREAS, the Trust may offer and issue Floating Rate Capital Trust Pass-
through Securities (the "Exchange Capital Securities") in exchange for the
Initial Capital Securities; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this First Supplemental Indenture; all requirements necessary to make this First
Supplemental Indenture a valid instrument in accordance with its terms, and to
make the Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed; and the execution and delivery of this First Supplemental Indenture
has been duly authorized in all respects;
NOW THEREFORE, in consideration of the purchase and acceptance of the
Initial Debentures by the holders thereof, and for the purpose of setting forth,
as provided in the Indenture, the form and substance of each series of
Debentures and the terms, provisions and conditions thereof, the Company
covenants and agrees with the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1
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Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in this
First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental Indenture has the
same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of this
First Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) the following terms have the meanings given to them in the
Declaration:
(i) Administrators;
(ii) Business Day;
(iii) Capital Security Certificate;
(iv) Capital Treatment Event;
(v) Clearing Agency;
(vi) Delaware Trustee;
(vii) Depositary;
(viii) Distribution;
(ix) Institutional Trustee;
(x) Purchase Agreement; and
(xi) Tax Event; the following terms have the meanings given to them
in this Section 1.1(g):
"Additional Interest" shall have the meaning set forth in Section 2.5(d).
"Calculation Agent" means any Person authorized by the Company to determine the
interest rate of the Debentures, which shall be The Chase Manhattan Bank, until
a successor is appointed.
"Compounded Interest" shall have the meaning set forth in Section 4.1.
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"Declaration" means the Amended and Restated Declaration of Trust of the Trust,
dated as of February 4, 1997, as amended or supplemented from time to time.
"Deferred Interest" shall have the meaning set forth in Section 4.1.
"Determination Date" means, with respect to any interest period, the date that
is two London Business Days prior to the first day of such interest period.
"Dissolution Event" means that, subject to the receipt by the Company of prior
approval from the Federal Reserve if then required under applicable capital
guidelines or policies of the Federal Reserve, the Trust is to be dissolved in
accordance with the Declaration, and the Debentures held by the Institutional
Trustee are to be distributed to the holders of the Trust Securities issued by
the Trust pro rata in accordance with the Declaration.
"Extension Period" shall have the meaning set forth in Section 4.1.
"Federal Reserve" means the Board of Governors of the Federal Reserve System.
"Global Debenture" shall have the meaning set forth in Section 2.4(a)(i).
"interest" shall include all interest payable on a series of Debentures
including any Additional Interest, Compounded Interest and Special Interest, if
applicable.
"LIBOR" means, with respect to a quarterly interest period relating to an
Interest Payment Date (in the following order of priority):
(i) the rate (expressed as a percentage per annum) for Eurodollar
deposits having a three-month maturity that appears on Telerate Page 3750
as of 11:00 a.m. (London time) on the related Determination Date;
(ii) if such rate does not appear on Telerate Page 3750 as of 11:00 a.m.
(London time) on the related Determination Date, LIBOR will be the
arithmetic mean (if necessary rounded upwards to the nearest whole multiple
of .00001%) of the rates (expressed as percentages per annum) for
Eurodollar deposits having a three-month maturity that appear on Reuters
Monitor Money Rates Page LIBO ("Reuters Page LIBO") as of 11:00 a.m.
(London time) on such Determination Date;
(iii) if such rate does not appear on Reuters Page LIBO as of 11:00 a.m.
(London time) on the related Determination Date, the Calculation Agent will
request the principal London offices of four leading banks in the London
interbank market to provide such banks' offered quotations (expressed as
percentages per annum) to prime banks in the London interbank market for
Eurodollar deposits having a three-month maturity as of 11:00 a.m. (London
time) on such Determination Date. If at least two
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quotations are provided, LIBOR will be the arithmetic mean (if necessary
rounded upwards to the nearest whole multiple of .00001%) of such
quotations;
(iv) if fewer than two such quotations are provided as requested in
clause (iii) above, the Calculation Agent will request four major New
York City banks to provide such banks' offered quotations (expressed as
percentages per annum) to leading European banks for loans in Eurodollars
as of 11:00 a.m. (London time) on such Determination Date. If at least
two such quotations are provided, LIBOR will be the arithmetic mean (if
necessary rounded upwards to the nearest whole multiple of .00001%) of
such quotations; and
(v) if fewer than two such quotations are provided as requested in
clause (iv) above, LIBOR will be LIBOR determined with respect to the
interest period immediately preceding such current interest period.
If the rate for Eurodollar deposits having a three-month maturity that initially
appears on Telerate Page 3750 or Reuters Page LIBO, as the case may be, as of
11:00 a.m. (London time) on the related Determination Date is superseded on
Telerate Page 3750 or Reuters Page LIBO, as the case may be, by a corrected rate
before 12:00 noon (London time) on such Determination Date, the corrected rate
as so substituted on the applicable page will be the applicable LIBOR for such
Determination Date.
"London Business Day" means any day, other than a Saturday or Sunday, on which
banks are open for business in London.
"Maturity Date" means February 1, 2027.
"Non-Book-Entry Capital Securities" shall have the meaning set forth in Section
2.4(a)(ii).
"Record Date" shall have the meaning set forth in the Debentures.
"Redemption Price" shall have the meaning set forth in Section 3.1.
"Registration Agreement" means the Registration Rights Agreement, dated January
29, 1997, relating to the Debentures and the other securities described therein
among the Company, the Trust and the initial purchasers named therein.
"Registered Exchange Offer" has the meaning set forth in the Registration
Agreement.
"Special Interest" has the meaning set forth in Section 2.5(f)(iii).
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ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1
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The Initial Debentures and the Exchange Debentures are hereby authorized as two
series of Debt Securities. The aggregate principal amount of Debentures
outstanding at any time shall not exceed $154,640,000 (except as set forth in
Section 2.03(2) of the Indenture). Upon receipt of a written order of the
Company for the authentication and delivery of a series of Debentures and
satisfaction of the requirements of Section 2.04 of the Indenture, the Trustee
shall authenticate (a) Initial Debentures for original issuance in an aggregate
principal amount not to exceed $154,640,000 (except as set forth in Section
2.03(2) of the Indenture) or (b) Exchange Debentures for issuance pursuant to a
Registered Exchange Offer for Initial Debentures in a principal amount equal to
the principal amount of Initial Debentures exchanged in such Registered Exchange
Offer.
The Initial Debentures shall be issued pursuant to an exemption from
registration under the Securities Act and the Restricted Securities Legend shall
appear thereon, unless otherwise determined by the Company in accordance with
applicable law. The Initial Debentures may not be transferred except in
compliance with the Restricted Securities Legend set forth in Section 2.07 of
the Indenture, unless otherwise determined by the Company in accordance with
applicable law. The Initial Debentures shall be issued in minimum denominations
of $100,000 and any integral multiple of $1,000 in excess thereof, and the
Exchange Debentures shall be issuable in minimum denominations of $1,000 and any
integral multiple thereof.
SECTION 2.2
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At the Maturity Date, the Debentures shall mature and the principal thereof
shall be due and payable together with all accrued and unpaid interest thereon
including Compounded Interest, Additional Interest and Special Interest thereon,
if any.
SECTION 2.3
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Except as provided in Section 2.4, Debentures of a series shall be issued in
fully registered certificated form without interest coupons. Principal and
interest on Debentures of a series issued in certificated form will be payable,
the transfer of such Debentures will be registrable and such Debentures will be
exchangeable for Debentures of such series bearing identical terms and
provisions at the office or agency of the Company in the Borough of Manhattan,
The City of New York, which office or agency shall initially be the corporate
trust office of the Trustee; provided, however, that payment of interest may be
made at the option of the Company by check mailed to the holder of any Debenture
at such address as shall appear in the Debt Security Register for such series of
Debentures or by wire transfer to an account appropriately designated by such
holder. Notwithstanding the foregoing, so long as the holder of any Debentures
of a series is the Institutional Trustee, the payment of the principal of and
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interest (including Compounded Interest, Additional Interest and Special
Interest, if any) on the Debentures held by the Institutional Trustee will be
made at such place and to such account as may be designated by the Institutional
Trustee.
SECTION 2.4
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(a) In connection with a Dissolution Event,
(i) except as provided in clause (ii) of this sentence, Debentures
of a series in certificated form may be presented to the Trustee by the
Institutional Trustee in exchange for a Global Security for such series in
an aggregate principal amount equal to the aggregate principal amount of
all outstanding Debentures of such series (a "Global Debenture"), to be
registered in the name of The Depository Trust Company, New York, New York,
or its nominee (hereby designated to be the Depositary for Debentures of
such series), and delivered by the Trustee to the Depositary or its
custodian for crediting to the accounts of the Depositary's participants
pursuant to the instructions of the Administrators of the Trust, which
instructions shall be provided in accordance with the terms of the
Declaration; the Company upon any such presentation shall execute a Global
Debenture for such series in such aggregate principal amount and deliver
the same to the Trustee for authentication and delivery in accordance with
the Indenture and this First Supplemental Indenture; payments on the
Debentures of a series issued as a Global Debenture will be made to the
Depositary;
(ii) if any Capital Securities of a series are not held by the
Clearing Agency or its nominee ("Non-Book-Entry Capital Securities"), the
Debentures in certificated form of the series held by the Trust
corresponding to such Capital Securities of such series may be presented to
the Trustee by the Institutional Trustee and any Capital Security
Certificate which represents such Non-Book-Entry Capital Securities will be
deemed to represent beneficial interests in Debentures so presented to the
Trustee by the Institutional Trustee having an aggregate principal amount
equal to the aggregate liquidation amount of such Non-Book-Entry Capital
Securities until such Capital Security Certificates are presented to the
Debt Security registrar for registration of transfer or reissuance at which
time such Capital Security Certificates will be canceled and a Debenture of
the series previously held by the Trust registered in the name of the
holder of the Capital Security Certificate or the transferee of the holder
of such Capital Security Certificate, as the case may be, with an aggregate
principal amount equal to the aggregate liquidation amount of the Capital
Security Certificate canceled, will be executed by the Company and
delivered to the Trustee for authentication and delivery in accordance with
the Indenture and this First Supplemental Indenture; upon issue of such
Debentures of such series, Debentures of such series with an equivalent
aggregate principal amount that were presented by the Institutional Trustee
to the Trustee will be deemed to have been canceled; and
(iii) prior to the distribution of Debentures of a series held by the
Institutional Trustee to the holders of Trust Securities, the Company and
the Trustee shall enter into a supplemental indenture pursuant to Article
IX of the Indenture to provide for
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transfer procedures and restrictions with respect to such Debentures of
such series substantially similar to those contained in the Declaration
with respect to Capital Securities of the corresponding series to the
extent applicable in the circumstances existing at the time of distribution
of Debentures of such series in connection with a Dissolution Event for
purposes of assuring that no registration of Debentures of such series is
required under the Securities Act of 1933, as amended.
(b) A Global Debenture may be transferred, in whole but not in part, only
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 to a
successor Depositary selected or approved by the Company or to a nominee of such
successor Depositary.
(c) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or if at any time the Depositary
shall no longer be registered or in good standing under the Securities Exchange
Act of 1934, as amended, or other applicable statute or regulation, and a
successor Depositary is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such condition, as the case may
be, the Company will execute, and, subject to Article II of the Indenture, the
Trustee, upon written request of the Company, will authenticate and make
available for delivery, Debentures of each series in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Debenture of such series in
exchange for such Global Debenture. In addition, the Company may at any time
determine that the Debentures of a series shall no longer be represented by a
Global Debenture. In such event the Company will execute, and subject to Section
2.07 of the Indenture, the Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Company, will authenticate and deliver
Debentures of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Debenture of such series in exchange for such
Global Debenture. A Global Debenture shall also be exchangeable for Debentures
in definitive form upon the occurrence of an Event of Default. Upon the exchange
of a Global Debenture for Debentures in definitive registered form without
coupons, in authorized denominations, such Global Debenture shall be canceled by
the Trustee. Such Debentures in definitive registered form issued in exchange
for such Global Debenture shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Debentures to the Depositary for delivery to the
Persons in whose names such Debentures are so registered.
SECTION 2.5
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(a) The Company shall appoint a Calculation Agent, which may be the
Trustee, to determine LIBOR as of the Determination Date for each quarterly
interest period and to calculate the interest rate and the amount of interest
due for each such interest period. Absent manifest error, the Calculation
Agent's determination of LIBOR and its calculation of the
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interest rate for each interest period shall be final and binding on the holders
of the Debentures.
(b) The amount of interest payable for any period will be computed on the
basis of the actual number of days elapsed in a year of twelve 30-day months. In
the event that any date on which interest is payable on the Debentures of a
series is not a Business Day, then payment of interest 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 is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
(c) The indebtedness evidenced by all Debentures of a series is
subordinate and junior in right of payment to the prior payment in full of all
present and future Senior Indebtedness and pari passu in right of payment with
all Debentures of each other series.
(d) If, at any time while the holder of any Debentures of a series is the
Institutional Trustee, the Trust is required to pay any taxes, duties,
assessments or governmental charges of whatever nature (other than withholding
taxes) imposed by the United States, or any other taxing authority, then, in any
such case, the Company shall pay as additional interest ("Additional Interest")
on the Debentures held by the Institutional Trustee, such additional amounts as
shall be required so that the net amounts received and retained by the Trust
after paying any such taxes, duties, assessments or other governmental charges
will be equal to the amounts the Trust and the Institutional Trustee would have
received had no such taxes, duties, assessments or other governmental charges
been imposed.
(e) If an Initial Debenture is exchanged in a Registered Exchange Offer
prior to the Record Date for the first Interest Payment Date following such
exchange, accrued and unpaid interest, if any, on such Initial Debenture, up to
but not including the date of issuance of the Exchange Debenture or Exchange
Debentures issued in exchange for such Initial Debenture, shall be paid on the
first Interest Payment Date for such Exchange Debenture or Exchange Debentures
to the Securityholder or Securityholders of such Exchange Debenture or Exchange
Debentures on the first Record Date with respect to such Exchange Debenture or
Exchange Debentures. If an Initial Debenture is exchanged in a Registered
Exchange Offer subsequent to the Record Date for the first Interest Payment Date
following such exchange but on or prior to such Interest Payment Date, then any
such accrued and unpaid interest with respect to such Initial Debenture and any
accrued and unpaid interest on the Exchange Debenture or Exchange Debentures
issued in exchange for such Initial Debenture, through the day before such
Interest Payment Date, shall be paid on such Interest Payment Date to the
Securityholder of such Initial Debenture on such Record Date.
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(f) The following terms relate to Special Interest:
(i) In the event that either
(A) the Exchange Offer Registration Statement (as such term is
defined in the Registration Agreement) is not filed with the
Securities and Exchange Commission (the "Commission") on or prior to
the 90th day following the Closing Date (as such term is defined in
the Registration Agreement),
(B) the Exchange Offer Registration Statement is not declared
effective by the Commission on or prior to the 120th day following the
Closing Date or (C) the Registered Exchange Offer (as such term is
defined in the Registration Agreement) is not consummated or a Shelf
Registration Statement (as such term is defined in the Registration
Agreement) with respect to the Initial Debentures is not declared
effective by the Commission on or prior to the 150th day following the
Closing Date, interest shall accrue (in addition to the stated
interest on Initial Debentures) from and including the next day
following each of (1) such 90-day period in the case of clause (A)
above, (2) such 120-day period in the case of clause (B) above and (3)
such 150-day period in the case of clause (C) above. In each case,
such additional interest shall accrue at a rate per annum equal to
0.25% of the principal amount of the Initial Debentures (determined
daily). The aggregate amount of additional interest payable pursuant
to the above provisions will in no event exceed 0.75% per annum of the
principal amount of the Initial Debentures (determined daily). Upon
(X) the filing of the Exchange Offer Registration Statement after the
90-day period described in clause (A) above, (Y) the effectiveness of
the Exchange Offer Registration Statement after the 120-day period
described in clause (B) above or (Z) the consummation of the
Registered Exchange Offer or the effectiveness of a Shelf Registration
Statement, as the case may be, after the 150-day period described in
clause (C) above, the additional interest payable on the Initial
Debentures, with respect to such clause (A), (B) or (C), as the case
may be, from the date of such filing, effectiveness or consummation,
as the case may be, shall cease to accrue.
(ii) In the event that a Shelf Registration Statement filed with
respect to the Initial Debentures is declared effective pursuant to the
terms of the Registration Agreement, if the Company or the Trust fails to
keep such Shelf Registration Statement continuously effective for the
period required by the Registration Agreement, then from the next day
following such time as the Shelf Registration Statement is no longer
effective until the earlier of (A) the date that the Shelf Registration
Statement is again deemed effective, (B) the date that is the third
anniversary of the effective date or (C) the date as of which all of the
Initial Debentures are sold pursuant to the Shelf Registration Statement or
may be sold without registration pursuant to Rule 144 under the Securities
Act of 1933, interest shall accrue on the Initial Debentures (in addition
to the stated interest on the Initial Debentures) at a rate per annum equal
to 0.25% of the principal amount of the Initial Debentures (determined
daily), to be increased to 0.50% per annum of the principal amount of the
Initial Debentures
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(determined daily) if and when such Shelf Registration Statement is no
longer effective for 30 days or more.
(iii) Any additional interest that accrues with respect to the
Initial Debentures as provided in this paragraph is referred to as "Special
Interest." For all purposes of the Indenture, this Supplemental Indenture
and the Initial Debentures, Special Interest shall be treated as interest
and shall be payable on the same Interest Payment Dates and to the
Securityholders of record on the same record dates as would be the case for
stated interest.
SECTION 2.6
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If at any time the holder of all Debentures of a series ceases to be the
Institutional Trustee and, at such time, the Capital Securities issued by the
Trust are rated by at least one nationally recognized statistical rating agency,
then the Company shall use its best efforts to obtain from at least one
nationally recognized statistical rating agency a rating for the Debentures of
such series.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1
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If a Tax Event or a Capital Treatment Event shall occur and be continuing, the
Company shall have the right, subject to the receipt by the Company of prior
approval from the Federal Reserve if then required under applicable capital
guidelines or policies of the Federal Reserve, to redeem, upon not less than 30
days' nor more than 60 days' notice, the Debentures in whole or in part, at any
time, within 90 days following the occurrence of such Tax Event or Capital
Treatment Event, as the case may be, at a redemption price equal to 100% of the
principal amount to be redeemed plus accrued but unpaid interest to the date of
such redemption (the "Redemption Price"). If Debentures are only partially
redeemed pursuant to this Section 3.1, Debentures shall be redeemed pro rata or
by lot or by any other method utilized by the Trustee. The Redemption Price
shall be paid prior to 11:00 a.m., New York City time, on the date of such
redemption or such earlier time as the Company determines, provided that the
Company shall deposit with the Trustee an amount sufficient to pay the
Redemption Price by 10:00 a.m., New York City time, on the date the Redemption
Price is to be paid.
SECTION 3.2
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At any time on or after February 1, 2007, the Company shall have the right,
subject to the provisions of Article XIV of the Indenture and to the receipt by
the Company of prior approval from the Federal Reserve if then required under
applicable capital guidelines or policies of the Federal Reserve, to redeem the
Debentures, in whole or in part, from time to time, at the Redemption Price. Any
redemption pursuant to this Section 3.2 will be made upon not less than 30 days'
nor more than 60 days' notice to the holders of the relevant
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Debentures. If Debentures are only partially redeemed pursuant to this Section
3.2, Debentures shall be redeemed pro rata or by lot or by any other method
utilized by the Trustee. The Redemption Price shall be paid prior to 11:00 a.m.,
New York City time, on the date of such redemption or such earlier time as the
Company determines, provided that the Company shall deposit with the Trustee an
amount sufficient to pay the Redemption Price by 10:00 a.m., New York City time,
on the date the Redemption Price is to be paid. The Debentures are not entitled
to the benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1
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The Company shall have the right, subject to the conditions set forth herein, to
defer payments of interest on the Debentures of a series by extending the
interest payment period on the Debentures of a series at any time and from time
to time during the term of the Debentures, for up to 20 consecutive quarterly
periods (each such extended interest payment period, an "Extension Period"),
during which Extension Period no interest shall be due and payable; provided
that (i) no Extension Period may extend beyond the Maturity Date and (ii) no
Extension Period may commence or be extended so long as the Company is in
default in the payment of any interest upon any Debentures of such series or has
not paid all Deferred Interest from a prior completed Extension Period. At the
termination of an Extension Period for the Debentures of a series or, if not an
Interest Payment Date, on the Interest Payment Date immediately following
termination of such Extension Period for the Debentures of such series, the
Company shall pay all interest then accrued and unpaid on the Debentures,
together with interest thereon at a variable annual rate equal to LIBOR plus
0.85%, compounded quarterly (to the extent permitted by applicable law)
("Compounded Interest") and any Additional Interest (together with Compounded
Interest, "Deferred Interest"), which Deferred Interest shall be payable to the
holders of the Debentures of such series in whose names the Debentures are
registered in the Debt Security Register on the record date for the payment of
interest on such Interest Payment Date. Before the termination of any Extension
Period, the Company may further extend such period, provided that such period
together with all such previous and further consecutive extensions thereof shall
not exceed 20 consecutive quarterly periods, or extend beyond the Maturity Date.
Upon the termination of any Extension Period and upon the payment of all
Deferred Interest then due, the Company may commence a new Extension Period,
subject to the foregoing requirements.
SECTION 4.2
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(a) If the Institutional Trustee is the only registered holder of the
Debentures of a series at the time the Company initiates an Extension Period,
the Company shall give written notice to the Administrators, the Institutional
Trustee and the Trustee of its initiation of such Extension Period one Business
Day before the earlier of (i) the date on which distributions on the Capital
Securities of the corresponding series are payable, or (ii) the date the
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Administrators are required to give notice to holders of the Capital Securities
of the corresponding series (or any national securities exchange or other
organization on which such Capital Securities are listed, if any) of the record
date or the distribution payment date, in each case with respect to
distributions on the Trust Securities the payment of which is being deferred.
(b) If the Institutional Trustee is not the only registered holder of the
Debentures of a series at the time the Company initiates an Extension Period,
the Company shall give the holders of the Debentures of such series and the
Trustee written notice of its initiation of such Extension Period at least ten
Business Days before the earlier of (i) the next succeeding Interest Payment
Date or (ii) the date the Company is required to give notice to holders of the
Debentures of such series (or any national securities exchange or other
organization on which the Capital Securities of the corresponding series are
listed, if any) of the record or payment date of such interest, in each case
with respect to interest payments the payment of which is being deferred.
ARTICLE V
EXPENSES AND GUARANTEE
SECTION 5.1
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In connection with the offering, sale and issuance of the Debentures of a series
and in connection with the sale of any Trust Securities by the Trust, the
Company, in its capacity as borrower with respect to the Debentures of such
series, shall:
(a) pay all costs and expenses relating to the offering, sale and issuance
of Debentures of such series, including commissions to the underwriters payable
pursuant to the Purchase Agreement and compensation of the Trustee under the
Indenture in accordance with the provisions of Section 6.06 of the Indenture;
(b) pay all debts and other obligations (other than with respect to the
Trust Securities) and costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust, the
offering, sale and issuance of the Trust Securities (including commissions to
the underwriters in connection therewith), the fees and expenses, if any, of the
Institutional Trustee, the Delaware Trustee and each Administrator, the costs
and expenses relating to the operation of the Trust, including, without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the acquisition, financing, and
disposition of Trust assets of the Trust);
(c) be primarily and fully liable for any indemnification obligations
arising with respect to the Declaration or the Purchase Agreement or the
Registration Agreement; and
12
(d) pay any and all taxes, duties, assessments or governmental charges
of whatever nature and all liabilities, costs and expenses with respect thereto
(other than United States withholding taxes attributable to the Trust or assets
of the Trust) to which the Trust may become subject.
SECTION 5.2
-----------
Upon termination of the Declaration or the removal or resignation of the
Delaware Trustee or the Institutional Trustee, as the case may be, pursuant to
Section 5.7 of the Declaration, the Company shall pay to the Delaware Trustee or
the Institutional Trustee, as the case may be, all amounts owing to the Delaware
Trustee or the Institutional Trustee, as the case may be, under Sections 10.4
and 10.6 of the Declaration accrued to the date of such termination, removal or
resignation.
ARTICLE VI
FORM OF DEBENTURE
The Debentures and the Trustee's certificate of authentication to be
endorsed thereon are to be substantially in the following forms and are
expressly made a part of this First Supplemental Indenture:
(FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT: This Debenture is a
Global Debenture within the meaning of the Indenture hereinafter referred to and
is registered in the name of a Depositary or a nominee of a Depositary. This
Debenture is exchangeable for Debentures of this series registered in the name
of a person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Debenture may
be registered except in limited circumstances. Except as otherwise provided in
Section 2.11 of the Indenture, this Debenture may be transferred, in whole but
not in part, only to another nominee of the Depositary or to a successor
Depositary or to a nominee of such successor Depositary.
Unless this Debenture is presented by an authorized representative of The
Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) to the issuer or
its agent for registration of transfer, exchange or payment, and any Debenture
of this series issued is registered in the name of Cede & Co. or such other name
as requested by an authorized representative of The Depository Trust Company and
any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.]
[IF THIS DEBENTURE IS ONE OF A SERIES ORIGINALLY ISSUED PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, AS SPECIFIED PURSUANT TO
SECTION 2.03 OF THE INDENTURE, INSERT THE FOLLOWING UNLESS OTHERWISE DETERMINED
BY THE COMPANY -- THIS
13
DEBENTURE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS. NEITHER THIS
DEBENTURE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF
THIS DEBENTURE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH DEBENTURE PRIOR TO THE DATE WHICH IS THREE YEARS AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH MERCANTILE
BANCORPORATION INC. (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE
OWNER OF THIS DEBENTURE OR ANY PREDECESSOR OF THIS DEBENTURE (THE "RESALE
RESTRICTIONS TERMINATION DATE") ONLY (A) TO THE COMPANY, (B) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE DEBENTURES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a) (1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
DEBENTURE FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH
MAY BE OBTAINED FROM THE COMPANY. THE HOLDER OF THIS DEBENTURE AGREES THAT IT
WILL COMPLY WITH THE FOREGOING RESTRICTIONS. DEBENTURES OWNED BY A PURCHASER
THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER MAY NOT BE HELD IN BOOK-ENTRY FORM.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE
RESTRICTIONS TERMINATION DATE.]
No. _________________
MERCANTILE BANCORPORATION INC.
FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE
INTEREST DEBENTURE DUE 2027
14
MERCANTILE BANCORPORATION INC., a Missouri corporation (the "Company,"
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ____________ or
registered assigns, the principal sum of ________________ Dollars ($_________ )
on February 1, 2027, and to pay interest on said principal sum from February 4,
1997, or from the most recent interest payment date (each such date, an
"Interest Payment Date") to which interest has been paid or duly provided for,
quarterly (subject to deferral as set forth herein) in arrears on the first day
of February, May, August and November of each year commencing May 1, 1997, at a
variable annual rate equal to LIBOR plus 0.85% until the principal hereof shall
have become due and payable, and on any overdue principal and (without
duplication and to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at a variable annual rate
equal to LIBOR plus 0.85% compounded quarterly. The amount of interest payable
on any Interest Payment Date shall be computed on the basis of the actual number
of days elapsed in a year of twelve 30-day months. In the event that any date on
which interest is payable on this Debenture is not a Business Day, then payment
of interest 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 is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Debenture (or one or more Predecessor Securities, as defined
in said Indenture) is registered at the close of business on the Record Date for
such interest installment, [which shall be the close of business on the Business
Day next preceding such Interest Payment Date]. [IF PURSUANT TO THE PROVISIONS
OF THE INDENTURE THE DEBENTURES OF THIS SERIES ARE NO LONGER REPRESENTED SOLELY
BY A GLOBAL DEBENTURE, SUBSTITUTE THE FOLLOWING FOR THE FOREGOING BRACKETED
TEXT -- which shall be the close of business on the 15th day next preceding such
Interest Payment Date.] Any such interest installment not punctually paid or
duly provided for shall forthwith cease to be payable to the registered holders
on such Record Date and may be paid to the Person in whose name this Debenture
(or one or more Predecessor Securities) is registered at the close of business
on a special record date to be fixed by the Trustee for the payment of such
defaulted interest, notice whereof shall be given to the registered holders of
this series of Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Debentures of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture. In the event the Debentures of this
series are issued in non-book entry form, the principal of and interest on this
Debenture shall be payable at the office or agency of the Trustee (or other
paying agent appointed by the Company) maintained for that purpose in any coin
or currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Company by check mailed to the
registered holder at such address as shall appear in the Debt Security Register
or by wire transfer to an account appropriately
15
designated by the holder hereof. Notwithstanding the foregoing, so long as the
holder of this Debenture is the Institutional Trustee, the payment of the
principal of and interest on this Debenture will be made in immediately
available funds at such place and to such account as may be designated by the
Institutional Trustee.
The indebtedness evidenced by this Debenture is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Indebtedness, and this Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each holder of this Debenture,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the subordination
so provided and (c) appoints the Trustee his or her attorney-in-fact for any and
all such purposes. Each holder hereof, by his or her acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
If this Debenture is exchanged in a Registered Exchange Offer prior to the
Record Date for the first Interest Payment Date following such exchange, accrued
and unpaid interest, if any, on this Debenture, up to but not including the date
of issuance of the Exchange Debenture or Exchange Debentures issued in exchange
for this Debenture, shall be paid on the first Interest Payment Date for such
Exchange Debenture or Exchange Debentures to the Securityholder or
Securityholders of such Exchange Debenture or Exchange Debentures on the first
Record Date with respect to such Exchange Debenture or Exchange Debentures. If
this Debenture is exchanged in a Registered Exchange Offer subsequent to the
Record Date for the first Interest Payment Date following such exchange but on
or prior to such Interest Payment Date, then any such accrued and unpaid
interest with respect to this Debenture and any accrued and unpaid interest on
the Exchange Debenture or Exchange Debentures issued in exchange for this
Debenture, through the day before such Interest Payment Date, shall be paid on
such Interest Payment Date to the Securityholder of this Debenture on such
Record Date.
If any time the Trust shall be required to pay any taxes, duties,
assessments or governmental charges of whatever nature (other than withholding
taxes) imposed by the United States or any other taxing authority, then, in any
such case, the Company shall pay as additional interest on the Debentures held
by the Institutional Trustee such additional amounts as shall be required so
that the net amounts received and retained by the Trust after paying any such
taxes, duties, assessments or other governmental charges will equal the amounts
the Trust and the Institutional Trustee would have received had no such taxes,
duties, assessments or other governmental charges been imposed. [IF THIS
DEBENTURE IS AN INITIAL DEBENTURE INSERT -- In addition, the interest rate
payable on the Debentures of this series is subject to increase as provided in
the Indenture if, pursuant to the Registration Agreement either (A) the Exchange
Offer Registration Statement (as such term is defined in the Registration
Agreement) is not filed with the Securities and Exchange Commission (the
"Commission") on or prior to the 90th day following the Closing Date (as such
term is
16
defined in the Registration Agreement), (B) the Exchange Offer Registration
Statement is not declared effective by the Commission on or prior to the 120th
day following the Closing Date or (C) the Registered Exchange Offer (as such
term is defined in the Registration Agreement) is not consummated or a Shelf
Registration Statement (as such term is defined in the Registration Agreement)
with respect to the Initial Debentures is not declared effective by the
Commission on or prior to the 150th day following the Closing Date.
The interest rate payable on the Debentures of this series is also subject
to adjustment in certain circumstances if a Shelf Registration Statement filed
pursuant to the Registration Agreement is not kept continuously effective for a
specified period, as provided in the Indenture.]
This Debenture shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Debenture are continued on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Dated ________________
MERCANTILE BANCORPORATION INC.
By:________________________________
Name:
Title
THE CHASE MANHATTAN BANK
By:________________________________
Name:
Title
17
CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By___________________________________
Authorized Officer
18
(REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debt Securities of the
Company, all issued or to be issued in one or more series under and pursuant to
an Indenture dated as of February 4, 1997, duly executed and delivered between
the Company and The Chase Manhattan Bank, as Trustee (the "Trustee"), as
supplemented by the First Supplemental Indenture dated as of February 4, 1997,
between the Company and the Trustee (the Indenture as so supplemented, the
"Indenture"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the holders of the series of Debt Securities (referred to herein as the
"Debentures") of which this Debenture is a part. The summary of the terms of
this Debenture contained herein does not purport to be complete and is qualified
by reference to the Indenture. By the terms of the Indenture, the Debt
Securities are issuable in series that may vary as to amount, date of maturity,
rate of interest and in other respects as provided in the Indenture. This series
of Debentures is limited in aggregate principal amount as specified in said
First Supplemental Indenture.
Upon the occurrence and continuation of a Tax Event or a Capital Treatment
Event, this Debenture may become due and payable, in whole or in part, at any
time, within 90 days following the occurrence of such Tax Event or Capital
Treatment Event, as the case may be, at a redemption price equal to 100% of the
principal amount being redeemed together with any accrued and unpaid interest
thereon. The Company shall also have the right to redeem this Debenture at the
option of the Company, in whole or in part, at any time or from time to time on
or after February 1, 2007, at par plus accrued and unpaid interest to the
redemption date.
Any redemption pursuant to the preceding paragraph will be made, subject to
the receipt by the Company of prior approval from the Board of Governors of the
Federal Reserve System (the "Federal Reserve") if then required under applicable
capital guidelines or policies of the Federal Reserve, upon not less than 30
days' nor more than 60 days' notice. If the Debentures are only partially
redeemed by the Company, the Debentures will be redeemed pro rata or by lot or
by any other method utilized by the Trustee; provided that if, at the time of
redemption, the Debentures are registered as a Global Debenture, the Depositary
shall determine the principal amount of such Debentures held by each of its
direct participants to be redeemed pro rata in accordance with its procedures.
In the event of redemption of this Debenture in part only, a new Debenture
or Debentures of this series for the unredeemed portion hereof will be issued in
the name of the holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared due and payable, and upon such declaration of acceleration shall become
due and payable, in the manner, with the effect and subject to the conditions
provided in the Indenture.
19
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than a majority in aggregate
principal amount of the Debt Securities of any series at the time outstanding
affected thereby, as specified in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Indenture or of any supplemental
indenture or of modifying in any manner the rights of the holders of the Debt
Securities; provided, however, that no such supplemental indenture shall, among
other things, without the consent of the holders of each Debt Security then
outstanding and affected thereby (i) extend the fixed maturity of any Debt
Securities of any series, or reduce the principal amount thereof or any
redemption premium thereon, or reduce the rate or extend the time of payment of
interest thereon, or make the principal of, or interest or premium on, the Debt
Securities payable in any coin or currency other than that provided in the Debt
Securities, or impair or affect the right of any holder of Debt Securities to
institute suit for the payment thereof, or (ii) reduce the aforesaid percentage
of Debt Securities, the holders of which are required to consent to any such
supplemental indenture. The Indenture also contains provisions permitting the
holders of a majority in aggregate principal amount of the Debt Securities of a
series at the time outstanding affected thereby as provided in the Indenture, on
behalf of all of the holders of the Debt Securities of such series, to waive any
past default in the performance of any of the covenants contained in the
Indenture, or established pursuant to the Indenture with respect to such series,
and its consequences, except a default in the payment of the principal of or
premium, if any, or interest on any of the Debt Securities of such series. Any
such consent or waiver by the registered holder of this Debenture (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
holder and upon all future holders and owners of this Debenture and of any
Debenture issued in exchange herefor or in place hereof (whether by registration
of transfer or otherwise), irrespective of whether or not any notation of such
consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Debenture at the time and place and at the rate and in the
money herein prescribed.
The Company shall have the right at any time during the term of the
Debentures and from time to time, subject to certain conditions, to defer
payment of interest on the Debentures of a series by extending the interest
payment period for Extension Periods, each not exceeding 20 consecutive
quarterly periods as provided in the Indenture. Notwithstanding the foregoing,
no Extension Period may extend beyond the maturity date of the Debentures. In
the event that the Company exercises its right to extend an interest payment
period, then during any Extension Period (a) the Company shall not declare or
pay any dividends on, make any distribution with respect to, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of its
capital stock or rights to acquire such capital stock (other than (i) purchases
or acquisitions of shares of any such capital stock or rights to acquire such
capital stock in connection with the satisfaction by the Company of its
obligations under any employee benefit plans, (ii) as a result of a
reclassification of the Company's capital stock or
20
rights to acquire such capital stock or the exchange or conversion of one class
or series of the Company's capital stock or rights to acquire such capital stock
for another class or series of the Company's capital stock or rights to acquire
such capital stock, (iii) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged, (iv) dividends
and distributions made on the Company's capital stock or rights to acquire such
capital stock with the Company's capital stock or rights to acquire such capital
stock, or (v) any declaration of a dividend in connection with the
implementation of a shareholder rights plan, or the issuance of stock under any
such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto), or make guarantee payments (other than payments under the
Capital Securities Guarantee or the Common Securities Guarantee for the Trust)
with respect to the foregoing and (b) the Company shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities issued by the Company that rank pari passu with or junior to the
Debentures. Prior to the termination of any such Extension Period, the Company
may further defer payments of interest by extending the interest payment period;
provided, however, that each such Extension Period, including all such previous
and further extensions thereof, may not exceed 20 consecutive quarterly periods
or extend beyond the maturity of the Debentures. Upon the termination of any
Extension Period and the payment of all amounts then due, the Company may
commence a new Extension Period, subject to the terms set forth in the
Indenture. No interest during an Extension Period, except on the date on which
such Extension Period terminates (or if such date is not an Interest Payment
Date, on the immediately following Interest Payment Date), shall be due and
payable.
As provided in the Indenture and subject to certain limitations herein and
therein set forth, this Debenture is transferable by the registered holder
hereof on the Debt Security Register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the Trustee in
the City and State of New York accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee duly
executed by the registered holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Debentures of authorized denominations
and for the same aggregate principal amount and series will be issued to the
designated transferee or transferees. No service charge will be made for any
such registration of transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this Debenture,
the Company, the Trustee, any Authenticating Agent, any paying agent, any
transfer agent and the Debt Security registrar may deem and treat the registered
holder hereof as the absolute owner hereof (whether or not this Debenture shall
be overdue and notwithstanding any notice of ownership or writing hereon) for
the purpose of receiving payment of or on account of the principal hereof and
interest due hereon and for all other purposes, and neither the Company nor the
Trustee nor any Authenticating Agent nor any paying agent nor any transfer agent
nor any Debt Security registrar shall be affected by any notice to the contrary.
21
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
The Debentures of this series are issuable only in registered form without
coupons. A Global Debenture is exchangeable for Debentures in definitive form
only under certain limited circumstances set forth in the Indenture. As provided
in the Indenture and subject to certain limitations herein and therein set
forth, Debentures of this series are exchangeable for a like aggregate principal
amount of Debentures of this series of a different authorized denomination, as
requested by the holder surrendering the same.
[IF THIS DEBENTURE IS AN INITIAL DEBENTURE INSERT -- The Debentures of this
series are issuable only in minimum denominations of $100,000 and any integral
multiple of $1,000 in excess thereof. The Debentures of this series may be
transferred only in blocks having an aggregate principal amount of not less than
$100,000. Any transfer of Debentures of this series in a block having an
aggregate principal amount of less than $100,000 shall be deemed to be void and
of no legal effect whatsoever. Any transferee of Debentures of this series
having an aggregate principal amount of less than $100,000 shall be deemed not
to be the holder of such Debentures for any purpose, including, but not limited
to, the receipt of payments on such Debentures, and such transferee shall be
deemed to have no interest whatsoever in such Debentures.]
All terms used in this Debenture that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND
THE DEBENTURES, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1
The Indenture, as supplemented by this First Supplemental Indenture, is in
all respects ratified and confirmed, and this First Supplemental Indenture shall
be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
SECTION 7.2
The recitals herein contained are made by the Company and not by the
Trustee, and
22
the Trustee assumes no responsibility for the correctness thereof. The Trustee
makes no representation as to the validity or sufficiency of this First
Supplemental Indenture.
SECTION 7.3
This First Supplemental Indenture and each Debenture shall be deemed to be
a contract made under the internal laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of said State without
regard to conflict of laws principles thereof.
SECTION 7.4
In case any one or more of the provisions contained in this First
Supplemental Indenture or in a series of Debentures shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
First Supplemental Indenture or of such series of the Debentures, but this First
Supplemental Indenture and such series of the Debentures shall be construed as
if such invalid or illegal or unenforceable provision had never been contained
herein or therein.
This First Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed as of the day and year first above written.
MERCANTILE BANCORPORATION INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President and
Treasurer
THE CHASE MANHATTAN BANK, as Trustee
By: /s/ X.X. Xxxxxxxx
-----------------------------------
Name: X.X. Xxxxxxxx
Title: Second Vice President
23
