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Exhibit 4.2
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FIRST SUPPLEMENTAL INDENTURE
between
SUMMIT BANCORP., as Issuer,
and
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
Dated as of March 20, 1997
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS..................................................................2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES...............................3
ARTICLE III
REDEMPTION OF THE DEBENTURES.................................................8
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD........................................10
ARTICLE V
EXPENSES AND GUARANTEE......................................................11
ARTICLE VI
FORM OF DEBENTURE...........................................................12
ARTICLE VII
MISCELLANEOUS...............................................................22
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FIRST SUPPLEMENTAL INDENTURE, dated as of March 20, 1997 (the
"First Supplemental Indenture"), between Summit Bancorp., a New Jersey
corporation (the "Company") and The First National Bank of Chicago, as trustee
(the "Trustee"), under the Indenture dated as of March 20, 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 8.40% 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 8.40% 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, Summit 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 8.40% 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 8.40% 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:
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ARTICLE I
DEFINITIONS
SECTION 1.1
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; (xi) Securities and (xii) Tax Event;
(g) 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(c).
"Call Price" shall have the meaning set forth in Section 3.2.
"Compounded Interest" shall have the meaning set forth in
Section 4.1.
"Declaration" means the Amended and Restated Declaration of
Trust of the Trust, dated as of March 20, 1997, as amended or supplemented from
time to time.
"Deferred Interest" shall have the meaning set forth in
Section 4.1.
"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.
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"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.
"Maturity Date" means March 15, 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 as of March 20, 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(e)(iii).
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1
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 as specified in such order, either (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
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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 Debentures
shall be issued in minimum denominations of $100,000 and any integral multiple
of $1,000 in excess thereof.
SECTION 2.2
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
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 (and premium, if any) 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, premium, if any, and
interest (including Compounded Interest, Additional Interest and Special
Interest, if any) on the Debentures held by the Institutional Trustee will be
made by transfer of immediately available funds at such place and to such
account as may be designated by the Institutional Trustee.
SECTION 2.4
(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
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Debenture will be made in accordance with the payment procedures
specified by the Depositary;
(ii) if any Capital Securities of a series are not held by
the Depositary 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 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 the distribution of such
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
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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
(a) The amount of interest payable for any period will be
computed on the basis of the a 360-day 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) with the same force and effect as
if made on such date.
(b) The indebtedness evidenced by all Debentures of a series
is subordinate and junior in right of payment to the prior payment in full of
the Allocable Amounts in respect of all present and future Senior Indebtedness
and pari passu in right of payment with all Debentures of each other series.
(c) 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.
(d) 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
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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.
(e) 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 150th 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 180th 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 210th 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
150-day period in the case of clause (A) above, (2) such 180-day period
in the case of clause (B) above and (3) such 210-day period in the case
of clause (C) above. In each case, such additional interest will be
payable in cash semiannually in arrears on each March 15 and September
15 of each year at a rate per annum equal to 0.25% of the principal
amount or the liquidation amount, as applicable of the Initial
Debentures (determined daily). The aggregate amount of additional
interest payable pursuant to the above provisions will in no event
exceed 0.25% per annum of the principal amount or the liquidation
amount, as applicable, of the Initial Debentures (determined daily).
Upon (x) the filing of the Exchange Offer Registration Statement after
the 150-day period described in clause (A) above, (y) the effectiveness
of the Exchange Offer Registration Statement after the 180-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 210-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 and all accrued and unpaid Special Interest as of
the occurrence of (x), (y) or (z) shall be paid on the next Interest
Payment Date.
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(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
(subject to the terms of the Registration Rights 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 (or such shorter period after which the Initial
Debenture may be transferred under the Securities Act pursuant to Rule
144(k) thereunder) 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 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 (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
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 (or maintain, if
such a rating has already been issued) 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
The Debentures will mature on March 15, 2027. Unless a Tax
Event or a Capital Treatment Event has occurred, the Debentures will not be
redeemable prior to March 15, 2007. If a Tax Event or a Capital Treatment Event
shall occur and be continuing, the Company will have the right, at any time,
subject to the receipt of prior approval from the Federal Reserve, if then
required under applicable capital guidelines or policies of the Federal Reserve,
to either (i) redeem within 90 days following the occurrence of such Tax Event
or Capital Treatment Event the Debentures in whole (but not in part) at par,
plus any accrued and unpaid interest thereon to the date of the redemption or
(ii) dissolve the Trust and, after satisfaction of the liabilities of
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creditors of the Trust (to the extent not satisfied by the Company), cause the
Debentures to be distributed to holders of the Securities in liquidation of the
Trust. Furthermore, the right of the Company to redeem the Debentures upon the
occurrence of a Tax Event under clause (i) above is subject to receipt by the
Company of an opinion of a nationally recognized independent counsel experienced
in tax and bank regulatory matters that, notwithstanding the exercise by the
Company of such rights described under clause (ii) above, either (x) such Tax
Event would still exist or (y) the Debentures would not constitute Tier 1
Capital (or its then equivalent) of a bank holding company. If Debentures are
only partially redeemed pursuant to this Section 3.1, Debentures shall be
redeemed 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 11:00 a.m., New York City time, on the date the Redemption
Price is to be paid.
SECTION 3.2
At any time on or after March 15, 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 Call
Price (expressed as a percentage of principal amount per Debenture being
redeemed) specified below (the "Call Price"), plus, any accrued and unpaid
interest thereon to the date of such redemption:
If redeemed during the
12-month period
beginning, March 15, Call Price
------------------------------------------------------- ----------
2007................................................... 104.20%
2008................................................... 103.78
2009................................................... 103.36
2010................................................... 102.94
2011................................................... 102.52
2012................................................... 102.10
2013................................................... 101.68
2014................................................... 101.26
2015................................................... 100.84
2016................................................... 100.42
and thereafter at 100% of the principal amount.
Any redemption pursuant to this Section 3.2 or Section 3.1
above will be made upon not less than 30 days' nor more than 60 days' notice to
the holders of the relevant Debentures. If Debentures are only partially
redeemed pursuant to this Section 3.2, Debentures shall be redeemed by lot or by
any other method utilized by the Trustee. The Call Price (plus any
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accrued and unpaid interest, if any) 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 Call Price (plus any accrued and unpaid interest, if any)
by 11:00 a.m., New York City time, on the date the amount 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
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 a period not
exceeding 10 consecutive semiannual 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 an annual rate of 8.40%,
compounded semiannually (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 10
consecutive semiannual 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
(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 Institutional Trustee is required to give notice to holders of the Capital
Securities of the corresponding series (or any
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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
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 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
(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
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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 DEBENTURE HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF
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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 (OR SUCH SHORTER
PERIOD AFTER WHICH THIS DEBENTURE MAY BE TRANSFERRED WITHOUT REGISTRATION UNDER
THE SECURITIES ACT PURSUANT TO RULE 144(K) THEREUNDER) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH SUMMIT BANCORP. (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 (X)
PURSUANT TO CLAUSE (D), TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE TRUST A
LETTER SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE OFFERING MEMORANDUM DATED
MARCH 13, 1997 FROM THE TRANSFEREE AND (Y) 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.]
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No. _________________
SUMMIT BANCORP.
8.40% JUNIOR SUBORDINATED DEFERRABLE
INTEREST DEBENTURE DUE 2027
SUMMIT BANCORP., a New Jersey corporation (the "Company,"
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to The First National
Bank of Chicago, as Institutional Trustee of Summit Capital Trust I or
registered assigns, the principal sum of one hundred fifty-four million six
hundred forty thousand Dollars ($154,640,000) on March 15, 2027, and to pay
interest on said principal sum from March 20, 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, semiannually (subject to deferral
as set forth herein) in arrears on March 15 and September 15 of each year,
commencing September 15, 1997, at an annual rate of 8.40% until the principal
hereof shall have become due and payable, and on any overdue principal and
premium, if any, and (without duplication and to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of
interest at an annual rate of 8.40% compounded semiannually. The amount of
interest payable on any Interest Payment Date shall be computed on the basis of
a 360-day 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) 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 NOT 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 premium, if any)
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
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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 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
premium, if any) 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 the Allocable Amounts in respect of all present and
future 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 to give effect
to Special Interest 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
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Commission (the "Commission") on or prior to the 150th 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 180th 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 210th day following the Closing Date. Upon (x)
the filing of the Exchange Offer Registration Statement, if applicable, as
described above, after the 150-day period described in clause (A) of the
preceding sentence, (y) the effectiveness of the Exchange Offer Registration
Statement after the 180-day period described in clause (B) of the preceding
sentence or (z) the consummation of the Registered Exchange Offer or the
effectiveness of a Shelf Registration Statement after the 210-day period
described in clause (C) of the preceding sentence, the Special Interest payable
on the Debentures from the date of such filing, effectiveness or consummation,
as the case may be, will cease to accrue and all accrued and unpaid Special
Interest as of the occurrence of (x), (y) or (z) shall be paid to the holders of
the Debentures on the next Interest Payment 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 as provided in the Indenture from the next day following such time as
the Shelf Registration Statement is no longer effective until the earlier of (i)
the date that the Shelf Registration Statement is again deemed effective, (ii)
the date that is the third anniversary of the effective date or (iii) the date
as of which all of the Offered Securities covered by the Shelf Registration
Statement are sold pursuant thereto or may be sold without registration under
the Securities Act.]
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.
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IN WITNESS WHEREOF, the Company has caused this instrument to
be executed.
Dated ________________
SUMMIT BANCORP.
By:
-----------------------------
Name:
Title:
[Seal]
By:
-----------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO, as
Trustee
By
-----------------------------------
Authorized Officer
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(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 March 20, 1997, duly executed and
delivered between the Company and The First National Bank of Chicago, as Trustee
(the "Trustee"), as supplemented by the First Supplemental Indenture dated as of
March 20, 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. All capitalized terms not otherwise
defined herein shall have the meanings set forth in the Indenture and the First
Supplemental Indenture.
The Debentures will mature on March 15, 2027. Unless a Tax
Event or a Capital Treatment Event has occurred, the Debentures will not be
redeemable prior to March 15, 2007. If a Tax Event or a Capital Treatment Event
shall occur and be continuing, the Company will have the right, at any time, to
either (i) redeem within 90 days following the occurrence of such Tax Event or
Capital Treatment Event the Debentures in whole (but not in part) at par, plus
any accrued and unpaid interest thereon to the date of the redemption or (ii)
dissolve the Trust and, after satisfaction of the claims of creditors of the
Trust (to the extent not satisfied by the Company), cause the Debentures to be
distributed to holders of the Securities in liquidation of the Trust.
Furthermore, the right of the Company to redeem the Debentures upon the
occurrence of a Tax Event under clause (i) above is subject to receipt by the
Company of an opinion of a nationally recognized independent counsel experienced
in tax and bank regulatory matters that, notwithstanding the exercise by the
Company of such rights described under clause (ii) above, either (x) such Tax
Event would still exist or (y) the Debentures would not constitute Tier 1
Capital (or its then equivalent) of a bank holding company. The Company shall
also have the right to redeem the Debentures at the option of the Company, in
whole or in part, at any time or from time to time on or after March 15, 2007,
at the Call Price (expressed as a percentage of the principal amount being
redeemed) specified below (the "Call Price"), plus any accrued and unpaid
interest thereon to the date of such redemption:
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If redeemed during the
12-month period
beginning, March 15, Call Price
------------------------------------------------------ ----------
2007.................................................. 104.20%
2008.................................................. 103.78
2009.................................................. 103.36
2010.................................................. 102.94
2011.................................................. 102.52
2012.................................................. 102.10
2013.................................................. 101.68
2014.................................................. 101.26
2015.................................................. 100.84
2016.................................................. 100.42
and thereafter at 100% of the principal amount.
Any redemption pursuant to the preceding paragraph shall 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 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 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.
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
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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 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 10 consecutive
semiannual 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 of the Company's benefit plans for directors, officers or
employees or under the Company's dividend reinvestment and stock purchase plan,
(ii) as a result of a reclassification of the Company's capital stock or 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 any guarantee payments (other than payments under the
Capital
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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 10 consecutive semiannual 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 premium, if any, 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.
No recourse shall be had for the payment of the principal of,
the premium, if any, on 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
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like aggregate principal amount of Debentures of this series of a different
authorized denomination, as requested by the holder surrendering the same.
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 INDENTURE AND THE DEBENTURES SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
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 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 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
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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.
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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.
SUMMIT BANCORP.
By:
------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
------------------------------
Name:
Title:
24
