EXHIBIT 4.46
BOATMEN'S BANCSHARES, INC.
and
CHEMICAL BANK, Trustee
SECOND SUPPLEMENTAL INDENTURE
Dated as of March 18, 1993
Subordinated Debt Securities
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE, dated as of March 18, 1993 (the "Second
Supplemental Indenture"), by and between BOATMEN'S BANCSHARES, INC., a Missouri
corporation (the "Company") and CHEMICAL BANK, a New York corporation (as
successor by merger to Manufacturers Hanover Trust Company, a New York
corporation), as trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has heretofore entered into the Indenture, dated as of October
2, 1989 (the "Indenture") to provide for the issuance of its subordinated debt
securities ("Securities") in one or more series and has appointed the Trustee to
serve as trustee thereunder.
The Company and the Trustee, by First Supplemental Indenture, dated
September 23, 1992 (the "First Supplemental Indenture"), supplemented the
Indenture to provide for the issuance of Securities in global form.
Pursuant to Sections 2.01, 6.01 and 10.01(f) of the Indenture, the Company
desires to change certain provisions of the Indenture effective only with
respect to any one or more series of Securities issued subsequent to the date of
this Second Supplemental Indenture which are intended to meet the criteria of 12
C.F.R. ss.250.166 and qualify for treatment as tier 2 capital under the rules
and regulations of the Board of Governors of the Federal Reserve System.
All things necessary to make Securities issued under the Indenture, as
heretofore and hereby supplemented, the valid obligation of the Company, and to
make the Indenture, as heretofore and hereby supplemented, a valid agreement of
the Company, in accordance with their and its terms, have been done as of the
date hereof.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
In order to comply with the requirements of the Indenture, the Company
covenants and agrees with the Trustee for the equal and proportionate benefit of
the holders of Securities issued on or after the date hereof as follows:
ARTICLE ONE
AMENDED AND ADDITIONAL DEFINITIONS
SECTION 101. The "." at the end of the definition of "Senior Indebtedness"
in Article I of the Indenture is hereby changed to a "," and the following
provision added:
and, with respect only to Qualifying Securities, shall mean (1) the
principal of, premium, if any, and interest on all indebtedness for money
borrowed, whether now outstanding or subsequently incurred; (2) all
obligations to make payment pursuant to the terms of financial instruments,
such as (a) securities contracts and foreign currency exchange contracts,
(b) derivative instruments, such as swap agreements (including interest
rate and foreign exchange rate swap agreements)cap agreements, floor
agreements, collar agreements, interest rate agreements,
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foreign exchange agreements, options, commodity futures contracts and
commodity options contracts, and (c) similar financial instruments;
(except, in the case of both (1) and (2) above, any such indebtedness or
obligation that expressly states that it is not superior to the Notes or
any other subsequently issued series of subordinated debt that is intended
to be Qualifying Securities, or ranks pari passu therewith); (3) any
indebtedness or obligation of others of the kind described in both (1) and
(2) above for the payment of which the Corporation is responsible or liable
as guarantor or otherwise; and (4) all deferrals, renewals or extensions of
such indebtedness or obligations.
SECTION 102. The following definition is added to the provisions of Article
I of the Indenture, following the definition of "Principal Subsidiary" and
preceding the definition of "Register":
Qualifying Security:
The term "Qualifying Security" shall mean a Security of a series
which is intended to meet the criteria specified in 12 C.F.R.
ss.250.166 and qualify as supplementary capital elements, tier 2
capital, in accordance with the provisions of Regulation Y, Appendix
A, promulgated by the Board of Governors of the Federal Reserve System
under the Bank Holding Company Act of 1956, as amended.
ARTICLE TWO
DESIGNATION OF QUALIFYING SECURITIES
SECTION 201. The word "and" is hereby removed from the end of subparagraph
(11) of Section 2.01 of the Indenture (as amended by the First Supplemental
Indenture), added at the end of subparagraph (12), and the following new
subparagraph (13) is hereby added to Section 2.01:
(13) whether the Securities of the series shall be issued as
Qualifying Securities and, if so, any additional terms or conditions
necessary to meet the qualifications for tier 2 capital in accordance
with the provisions of Regulation Y, Appendix A, as promulgated by the
Board of Governors of the Federal Reserve System, as amended,
supplemented and interpreted at the time of such issuance;
ARTICLE THREE
PROVISIONS GOVERNING QUALIFYING SECURITIES
SECTION 301. The following provision is hereby added to Section 4.07 of the
Indenture:
Notwithstanding any other provision of this Section 4.07 to the
contrary, the covenants of this Section 4.07 shall not be for the
benefit of, or enforceable by, holders of Qualifying Securities of any
series, nor shall the Trustee be entitled
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to enforce the covenants of this Section 4.07 for the benefit of
holders of Qualifying Securities of any series.
SECTION 302. The following provision is hereby added to Section 6.01 of the
Indenture:
Notwithstanding any other provision of this Article VI to the
contrary, with respect to Qualifying Securities of any series, an
"Event of Default" shall mean and include only those events specified
in subparagraphs (2), (5) and (6) above; the events specified in
subparagraphs (1), (3), (4) and (7) being hereby specifically deleted
as "Events of Default" for all purposes with respect to Qualifying
Securities. Without limitation on the foregoing, the occurrence of any
event described in subparagraphs (1), (3), (4) or (7) shall not
entitle the holders of Qualifying Securities of any series, or the
Trustee on behalf of any such holders, to accelerate the maturity of
such Qualifying Securities.
ARTICLE FOUR
INDENTURE AMENDMENTS WITH RESPECT TO QUALIFYING SECURITIES
SECTION 401. Section 4.08 of the Indenture is hereby deleted and replaced
by the following:
"Section 4.08. Waiver of Covenants. The Company may omit in any
particular instance to comply with any covenant or condition set forth
in Section 4.07, or any covenant or condition specifically contained
in this Indenture for the benefit of one or more series of Securities
(except covenants which cannot be amended without the consent of all
holders pursuant to Section 10.02 hereof), if before the time for such
compliance the holders of a majority in principal amount of the
Securities of all series (with Securities other than Qualifying
Securities voting as one class and Qualifying Securities voting as a
separate class) benefiting from the covenant (determined as provided
in Section 8.04) shall waive such compliance in such instance, but no
such waiver shall extend to or affect such covenant or condition
except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the
Trustee in respect of any such covenant or condition shall remain in
full force and effect."
SECTION 402. The first paragraph of Section 10.02 of the Indenture is
hereby deleted and replaced by the following:
"Section 10.02. Modification of Indenture with Consent of Holders of a
Majority in Principal Amount of Securities. With the consent (evidenced as
provided in Section 8.01) of the holders of not less than a majority in
principal amount of the Securities of all series at the time outstanding
(determined as provided in Section 8.04) affected by such supplemental
indenture (with Securities other than Qualifying Securities voting as one
class and Qualifying Securities voting as a separate class), the Company,
when authorized by a resolution of its Board of Directors, and the Trustee
may from time to
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time and at any time enter into an indenture or indentures supplemental
hereto (which shall comply with the provisions of the Trust Indenture Act
of 1939 as then in effect) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture of modifying in any manner the
rights of the holders of the Securities of each such series; provided,
however, that no such supplemental indenture shall (i) extend the fixed
maturity of any Securities, or reduce the rate or extend the time of
payment of any interest thereon or on any overdue principal amount, or
reduce the principal amount thereof, or change the provisions pursuant to
which the rate of interest on any Security is determined if such change
could reduce the rate of interest thereon, or reduce the minimum rate of
interest thereon, or reduce any amount payable upon any redemption or
acceleration thereof, or make the principal thereof or any interest
thereon or on any overdue principal amount payable in any coin or
currency other than that provided in the Security, without the consent of
the holder of each Security so affected, or (ii) reduce the aforesaid
percentage of Securities, the holders of which are required to consent to
any such supplemental indenture, without the consent of the holders of
all Securities then outstanding."
SECTION 403. The first sentence of Section 12.04 of the Indenture is
hereby deleted and replaced by the following:
"Section 12.04. Subrogation to Rights of Holders of Senior
Indebtedness. Subject to the prior payment in full of all Senior
Indebtedness of the Company, the holders shall be subrogated (with (i)
Securities other than Qualifying Securities being subrogated equally and
ratably with the holders of all indebtedness of the Company which by its
express terms is not superior in right of payment to Securities other
than Qualifying Securities and ranks pari passu with the Securities other
than Qualifying Securities and is entitled to like rights of subrogation
and (ii) Qualifying Securities being subrogated equally and ratably with
the holders of all indebtedness of the Company which by its express terms
is not superior in right of payment to the Qualifying Securities and
ranks pari passu with the Qualifying Securities and is entitled to like
rights of subrogation) to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of assets or securities
of the Company applicable to the Senior Indebtedness of the Company until
the Securities shall be paid in full."
ARTICLE FIVE
MISCELLANEOUS
SECTION 501. Except as otherwise expressly provided or unless the context
otherwise requires, all terms used herein which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
SECTION 502. The recitals contained herein shall be taken as the
statements of the Company only, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Second Supplemental Indenture.
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SECTION 503. This Second Supplemental Indenture shall be governed by and
construed in accordance with the laws of the jurisdiction which govern the
Indenture and its construction.
SECTION 504. This Second 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.
SECTION 505. In accordance with Section 10.04 of the Indenture, all
Securities authenticated and delivered after the execution of this Second
Supplemental Indenture shall bear the following notation:
"As of March 18, 1993, the Indenture, dated as of October 2, 1989,
relating to this Security has been amended by a First Supplemental
Indenture, dated as of September 23, 1992, and further amended by a
Second Supplemental Indenture, dated as of March 18, 1993."
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed and their respective seals to be
affixed hereunto and duly attested all as of the day and year first above
written.
[SEAL] BOATMEN'S BANCSHARES, INC.
ATTEST:
/s/ DAVID L. FOULK By /s/ JAMES W. KIENKER
- ----------------------------- ------------------------------------------
Assistant Secretary James W. Kienker
Executive Vice President
[SEAL] CHEMICAL BANK (as successor by merger to
Manufacturers Hanover Trust Company),
Trustee
ATTEST:
/s/ G. JOHN KISER By /s/ W. D. DODGE
- ----------------------------- ------------------------------------------
Trust Officer Vice President
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STATE OF MISSOURI )
) ss.
CITY OF ST. LOUIS )
On the 18th day of March, in the year 1993, before me personally came
James W. Kienker, to me known, who, being by me duly sworn, did depose and say
that he resides at 2 Geyerwood Lane, St. Louis, Missouri; that he is the
Executive Vice President of Boatmen's Bancshares, Inc., a corporation described
in and which executed the above instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed pursuant to the authority of the Board of Directors of
said corporation; and that he signed his name thereto pursuant to like
authority.
/s/ KAY C. ANDERSON
Notary Public
STATE OF NEW YORK )
) ss.
CITY OF NEW YORK )
On the 25th day of March, in the year 1993, before me personally came
W.D. Dodge, to me known, who, being by me duly sworn, did depose and say that,
he resides at 3532 Kenora Pl., Seaford, N.Y.; that he is a Vice President of
Chemical Bank, a corporation described in and which executed the above
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed pursuant to the
authority of the Board of Directors of said corporation; and that he signed his
name thereto pursuant to like authority.
/s/ ALICIA COSTELLO
Notary Public
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