<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 1, 1998
REGISTRATION NO. 333-
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- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
AND POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT NO. 333-2143
--------------
STATE STREET CORPORATION MASSACHUSETTS 04-2456637
STATE STREET CAPITAL TRUST I DELAWARE 13-7147837
STATE STREET CAPITAL TRUST II DELAWARE 13-7147835
STATE STREET CAPITAL TRUST III DELAWARE 13-7147836
(Exact name of each registrant (State or other (I.R.S. Employer
as specified in its charter) jurisdiction of Identification Number)
incorporation or
organization)
--------------
225 FRANKLIN STREET
BOSTON, MASSACHUSETTS 02110
(617) 786-3000
(Address, including zip code, and telephone number, including area code, of
each registrant's principal executive offices)
--------------
MAUREEN SCANNELL BATEMAN, ESQ.
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
STATE STREET CORPORATION
225 FRANKLIN STREET
BOSTON, MASSACHUSETTS 02110
(617) 786-3000
(Name and address, including zip code, and telephone number, including area
code, of agent for service of process for each registrant)
--------------
WITH COPIES TO:
ROBERT F. HAYES, ESQ. B. ROBBINS KIESSLING, ESQ.
ROPES & GRAY CRAVATH, SWAINE & MOORE
ONE INTERNATIONAL PLACE WORLDWIDE PLAZA, 825 EIGHTH AVENUE
BOSTON, MASSACHUSETTS 02110 NEW YORK, NEW YORK 10019
(617) 951-7000 (212) 474-1000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement as determined
by market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration number of the earlier effective
registration statement for the same offering: [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [X]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
AMOUNT TO PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF BE REGISTERED OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED (1)(2)(3)(4) UNIT(4)(5)(6) PRICE(4)(5)(6) FEE(3)
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities and
Preferred Stock (no par
value) of State Street
Corporation(5).........
- ------------------------------------------------------
Capital Securities of
State Street Capital
Trust I................
- ------------------------------------------------------
Capital Securities of
State Street Capital
Trust II............... (8) (8) (8) (8)
- ------------------------------------------------------
Capital Securities of
State Street Capital
Trust III..............
- ------------------------------------------------------
Guarantees of Capital
Securities of State
Street Capital Trust I,
State Street Capital
Trust II and State
Street Capital Trust
III by State Street
Corporation and certain
back-up
undertakings(7)........
- -----------------------------------------------------------------------------------------------
Total................... $350,000,000 100% $350,000,000 $120,689.65(3)
</TABLE>
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(1) Or, if any Debt Securities are issued with a principal amount denominated
in a foreign currency, such principal amount as shall not exceed an
aggregate initial offering price of, together with that of the Preferred
Stock, if any, $350,000,000.
(2) Or, if any Debt Securities are issued at original issue discount, such
greater principal amount as shall not exceed an aggregate initial offering
price of, together with that of the Preferred Stock, if any, $350,000,000.
(3) Pursuant to Rule 429 under the Securities Act of 1933, $350,000,000 of
debt securities and preferred stock are being carried forward from
Registration Statement No. 333-2143 for inclusion in the Prospectus filed
herewith. A registration fee of $120,689.65 has been previously paid with
respect to such debt securities and preferred stock.
(4) Such indeterminate number of Capital Securities of State Street Capital
Trust I, State Street Capital Trust II and State Street Capital Trust III
and such indeterminate principal amount of Junior Subordinated Deferrable
Interest Debentures and Debt Securities and number of shares of Preferred
Stock of State Street Corporation, as may from time to time be issued at
indeterminate prices. Junior Subordinated Deferrable Interest Debentures
may be issued and sold to State Street Capital Trust I, State Street
Capital Trust II or State Street Capital Trust III. Such Junior
Subordinated Deferrable Interest Debentures may later be distributed to
the holders of Capital Securities upon termination of State Street Capital
Trust I, State Street Capital Trust II or State Street Capital Trust III
and the distribution of assets thereof.
(5) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457. The aggregate public offering price of the Capital
Securities of State Street Capital Trust I, State Street Capital Trust II
and State Street Capital Trust III and the Debt Securities and Preferred
Stock of State Street Corporation registered hereby will not exceed
$350,000,000.
(6) Exclusive of accrued interest and distributions, if any.
(7) Includes the obligations of State Street Corporation under (i) the Amended
and Restated Trust Agreement of each of State Street Capital Trust I,
State Street Capital Trust II and State Street Capital Trust III, (ii) the
Guarantees issued with respect to the Capital Securities issued by such
Trust, (iii) the Junior Subordinated Deferrable Interest Debentures
purchased by such Trust and the related Indenture, including the agreement
of State Street Corporation (contained in each Amended and Restated Trust
Agreement contained in the Supplemental Indenture) to pay all trust
obligations other than the Capital Securities and the Common Securities,
all as described in the Base Prospectus and the Prospectus Supplement
included in this Registration Statement. No separate consideration will be
received for these obligations or for the Guarantees.
(8) Not applicable pursuant to General Instruction II.D. of Form S-3.
--------------
THIS REGISTRATION STATEMENT, WHICH IS A NEW REGISTRATION STATEMENT, ALSO
CONSTITUTES POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT NO. 333-
2143 OF STATE STREET CORPORATION (THEN CALLED STATE STREET BOSTON CORPORATION)
WHICH WAS DECLARED EFFECTIVE ON APRIL 23, 1996. SUCH POST-EFFECTIVE AMENDMENT
SHALL HEREAFTER BECOME EFFECTIVE CONCURRENTLY WITH THE EFFECTIVENESS OF THIS
REGISTRATION STATEMENT AND IN ACCORDANCE WITH SECTION 8(C) OF THE SECURITIES
ACT OF 1933. PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THE
PROSPECTUS FILED AS PART OF THIS REGISTRATION STATEMENT ALSO CONSTITUTES A
PROSPECTUS FOR REGISTRATION STATEMENT NO. 333-2143; THE $350,000,000 AGGREGATE
AMOUNT OF DEBT SECURITIES AND PREFERRED STOCK REMAINING UNSOLD FROM
REGISTRATION STATEMENT NO. 333-2143 WILL BE COMBINED WITH THE CAPITAL
SECURITIES, DEBT SECURITIES, PREFERRED STOCK AND GUARANTEES TO BE REGISTERED
PURSUANT TO THIS REGISTRATION STATEMENT TO ENABLE STATE STREET CORPORATION TO
OFFER AN AGGREGATE AMOUNT OF $350,000,000 OF ANY COMBINATION OF ITS DEBT
SECURITIES AND PREFERRED STOCK AND TO ENABLE STATE STREET CAPITAL TRUST I,
STATE STREET CAPITAL TRUST II AND STATE STREET CAPITAL TRUST III TO OFFER AN
AGGREGATE AMOUNT OF $350,000,000 OF CAPITAL SECURITIES PURSUANT TO THIS
COMBINED PROSPECTUS.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE
COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PRELIMINARY PROSPECTUS SHALL NOT CONSTITUTE AN OFFER +
+TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF +
+THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD +
+BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS +
+OF ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED APRIL 1, 1998
$350,000,000
STATE STREET CORPORATION
DEBT SECURITIES
PREFERRED STOCK
----------
STATE STREET CAPITAL TRUST I
STATE STREET CAPITAL TRUST II
STATE STREET CAPITAL TRUST III
CAPITAL SECURITIES
FULLY AND UNCONDITIONALLY
GUARANTEED BY
STATE STREET CORPORATION
----------
State Street Corporation, a Massachusetts corporation ("State Street" or the
"Corporation"), may from time to time offer in one or more series or issuances
(i) shares of its preferred stock, no par value (the "Preferred Stock"), and
(ii) its unsecured debt securities (the "Debt Securities") which may be either
senior debt securities ("Senior Debt Securities"), subordinated debt securities
("Subordinated Debt Securities") or junior subordinated debentures ("Junior
Subordinated Debentures"). State Street Capital Trust I, State Street Capital
Trust II and State Street Capital Trust III, each a statutory business trust
created under the laws of the State of Delaware (each, an "Issuer Trust" and
collectively, the "Issuer Trusts"), may severally offer, from time to time,
preferred undivided beneficial interests (the "Capital Securities") in the
assets of such Issuer Trust. The Debt Securities, Preferred Stock, Capital
Securities and Guarantees (as defined herein) are referred to herein
collectively as the "Securities." The Securities may be offered (the "Offered
Securities") as separate series in amounts, at prices, and on terms to be
determined at the time of sale and to be set forth in a supplement to this
Prospectus (the "Prospectus Supplement"), and will be limited to $350,000,000
aggregate public offering price (or its equivalent (based on the applicable
exchange rate at the time of sale) to the extent Debt Securities are issued
with principal amounts denominated in one or more foreign currencies or
currency units). State Street will own all of the common securities (the
"Common Securities" and, together with the Capital Securities, the "Trust
Securities") representing common beneficial ownership interests in each such
Issuer Trust. Holders of the Capital Securities will be entitled to receive
preferential cumulative cash distributions ("Distributions") accumulating from
the date of original issuance and payable periodically as specified in an
accompanying Prospectus Supplement.
Payment of the principal of the Subordinated Debt Securities may be
accelerated only in the case of certain events involving the bankruptcy,
insolvency or reorganization of State Street. There is otherwise no right of
acceleration in the case of a default in the performance of any covenant of
State Street related to the Subordinated Debt Securities, including the payment
of principal and interest. See "Description of Debt Securities--Events of
Default--The Subordinated Indenture." In addition, unless otherwise indicated
in the Prospectus Supplement pursuant to which any Securities are offered, such
Offered Securities and the covenants contained in the indentures pursuant to
which such Offered Securities are issued will not protect holders in the event
of a sudden decline in the creditworthiness of State Street that might result
from a recapitalization, restructuring or other highly leveraged transaction.
See "Description of Debt Securities--General."
If provided in an accompanying Prospectus Supplement, State Street will have
the right to defer payments of interest on any series of Junior Subordinated
Debentures by extending the interest payment period thereon at any time or from
time to time for up to such number of consecutive interest payment periods
(which shall not extend beyond the Stated Maturity (as defined herein) of the
Junior Subordinated Debentures) with respect to each deferral period as may be
specified in such Prospectus Supplement (each, an "Extension Period"). In such
circumstances, however, State Street would not be permitted, subject to certain
exceptions set forth herein, to declare or pay any dividends, distributions or
other payments with respect to, or repay, repurchase, redeem or otherwise
acquire, State Street's capital stock or debt securities that rank pari passu
with or junior to such series of Junior Subordinated Debentures. See
"Description of Junior Subordinated Debentures--Option to Defer Interest
Payments" and "--Restrictions on Certain Payments."
Concurrently with the issuance by an Issuer Trust of its Capital Securities,
such Issuer Trust will invest the proceeds thereof and of contributions
received in respect of the Common Securities in a corresponding series of State
Street's Junior Subordinated Debentures (the "Corresponding Junior Subordinated
Debentures") with terms corresponding to the terms of that Issuer Trust's
Capital Securities (the "Related Capital Securities"). Accordingly, if, as
provided in an accompanying Prospectus Supplement, State Street has the right
to defer the payment of interest on a series of Corresponding Junior
Subordinated Debentures, then, if interest payments are so deferred,
Distributions on the Related Capital Securities would also be deferred, but
would continue to accumulate at the rate per annum set forth in the related
Prospectus Supplement. See "Description of Capital Securities--Distributions."
(continued on next page)
----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECU-
RITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRE-
SENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF SECURITIES UNLESS
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
----------
The date of this Prospectus is , 1998.
<PAGE>
(continued from cover page)
Taken together, State Street's obligations under each series of
Corresponding Junior Subordinated Debentures, the Junior Subordinated
Indenture, the related Trust Agreement and the related Guarantee (each, as
defined herein), in the aggregate, will provide a full, irrevocable and
unconditional guarantee of payments of Distributions and other amounts due on
the Related Capital Securities. See "Relationship Among the Capital
Securities, the Corresponding Junior Subordinated Debentures and the
Guarantees--Full and Unconditional Guarantee." The payment of Distributions
with respect to the Capital Securities of each Issuer Trust and payments on
liquidation of such Issuer Trust or redemption of such Capital Securities, in
each case out of funds held by such Issuer Trust, will be irrevocably
guaranteed by State Street to the extent described herein (each, a
"Guarantee"). See "Description of Guarantees." The obligations of State Street
under each Guarantee will be unsecured and subordinate and junior in right of
payment to all Senior Indebtedness (as defined in "Description of Junior
Subordinated Debentures--Subordination") of State Street.
The Corresponding Junior Subordinated Debentures will be the sole assets of
each Issuer Trust, and payments under the Corresponding Junior Subordinated
Debentures will be the only revenue of each Issuer Trust. If so provided in an
accompanying Prospectus Supplement, State Street may, upon receipt of approval
of the Federal Reserve (if such approval is then required under the Federal
Reserve's applicable capital guidelines or policies), redeem the Corresponding
Junior Subordinated Debentures (and thereby cause the redemption of the Trust
Securities) or may dissolve each Issuer Trust and, after satisfaction of
liabilities to the creditors of such Issuer Trust as required by applicable
law, cause the Corresponding Junior Subordinated Debentures to be distributed
to the holders of Capital Securities in exchange therefor upon liquidation of
their interests in such Issuer Trust. See "Description of Capital Securities--
Liquidation Distribution Upon Dissolution."
State Street's principal asset and source of cash revenues is its investment
in State Street Bank and Trust Company ("State Street Bank"). As a bank
holding company, State Street is a legal entity separate and distinct from
State Street Bank and its nonbank subsidiaries and is subject to supervision
and examination by the Board of Governors of the Federal Reserve System (the
"Federal Reserve"). State Street's principal source of cash revenues is cash
dividends paid by State Street Bank, and consequently, its ability to satisfy
its financial obligations, including the payment of interest or dividends on
the Securities, is dependent upon State Street Bank's ability to pay cash
dividends or make other distributions to State Street. Payment of dividends to
State Street by State Street Bank is subject to legal restrictions imposed by
the Federal Reserve Act and Massachusetts banking law.
The specific terms of the Securities in respect of which this Prospectus is
being delivered will be as set forth in the accompanying Prospectus
Supplement, such as, where applicable (i) in the case of Debt Securities, the
specific designation, aggregate principal amount, denominations, maturity,
premium, if any, rate (which may be fixed or variable) and time of payment of
interest, if any, terms for redemption at the option of State Street or the
holder, if any, terms for sinking or purchase fund payments, if any, currency
or currencies of denomination and payment, if other than U.S. dollars, the
securities exchanges on which the Debt Securities are to be listed, if any,
and any other terms in connection with the offering and sale of the Debt
Securities in respect of which this Prospectus is being delivered, as well as
the initial public offering price, and the principal amounts, if any, to be
purchased by underwriters; (ii) in the case of Preferred Stock, the specific
title and stated value, number of shares or fractional interests therein, any
dividend, liquidation, redemption, voting and other rights, the terms for
conversion into other preferred stock or for exchange for Debt Securities, the
securities exchanges on which such Preferred Stock is to be listed, if any,
the initial public offering price, and the number of shares, if any, to be
purchased by underwriters; (iii) in the case of Junior Subordinated
Debentures, the specified designation, aggregate principal amount,
denominations, Stated Maturity (including any provisions for the shortening or
extension thereof), interest payment dates, interest rate (which may be fixed
or variable) or method of calculating interest, if any, applicable Extension
Period or interest deferral terms, if any, place or places where principal,
premium, if any, and interest, if any, will be payable, any terms of
redemption, any sinking fund provisions, terms for any conversion or exchange
into other securities, initial offering or purchase price, methods of
distribution and any other special terms; and (iv) in the case of Capital
Securities, the identity of the Issuer Trust, specific title, aggregate stated
liquidation amount, number of securities, Distribution rate or method of
calculating such rate, Distribution payment dates, applicable Distribution
deferral terms, if any, place or places where Distributions will be payable,
any terms of redemption, exchange, initial offering or purchase price, methods
of distribution and any other special terms. The Prospectus Supplement will
also contain information, where applicable, about certain United States
federal income tax considerations relating to the Securities covered by the
Prospectus Supplement. All or a portion of the Debt Securities may be issued
in permanent global form.
The Senior Debt Securities, when issued, will rank on a parity with all
other unsecured and unsubordinated indebtedness of State Street. State
Street's obligations under the Subordinated Debt Securities and the Junior
Subordinated Debentures will be unsecured and subordinate and junior in right
of payment to State Street's Senior Indebtedness and Senior Debt,
respectively, as described herein or as may be described in an accompanying
Prospectus Supplement. See "Description of Debt Securities--Subordination of
Subordinated Debt Securities" and "Description of Junior Subordinated
Debentures--Subordination."
The Offered Securities may be sold directly by State Street, through agents
of State Street designated from time to time, to or through underwriters,
through dealers, remarketing firms or agents or through a combination of such
methods. If any agents, underwriters or dealers are involved in the sale of
the Securities, the names of such agents, underwriters or dealers and any
applicable commission or discounts will be set forth in the Prospectus
Supplement with respect to such Securities. The Prospectus Supplement will
state whether the Offered Securities will be listed on any national securities
exchange or automated quotation system. If the Offered Securities are not
listed on any national securities exchange or automated quotation system,
there can be no assurance that there will be a secondary market for the
Securities. See "Plan of Distribution."
NO DEALER, SALESPERSON OR ANY OTHER INDIVIDUAL HAS BEEN AUTHORIZED BY STATE
STREET OR ANY OF THE ISSUER TRUSTS TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY
JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR
ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE CORPORATION OR ANY OF THE
ISSUER TRUSTS SINCE THE DATE HEREOF.
---------------
2
<PAGE>
AVAILABLE INFORMATION
State Street is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities of the Commission at Room 1024, 450 Fifth Street, N.W.,
Judiciary Plaza, Washington, D.C. 20549 and at the regional offices of the
Commission located at 7 World Trade Center, 13th Floor, Suite 1300, New York,
New York 10048 and Suite 1400, Citicorp Center, 14th Floor, 500 West Madison
Street, Chicago, Illinois 60661. Copies of such material can also be obtained
at prescribed rates by writing to the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549.
Such material may also be accessed electronically by means of the Commission's
home page on the Internet at http://www.sec.gov. In addition, such reports,
proxy statements and other information concerning State Street can be
inspected at the offices of the New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005.
State Street and the Issuer Trusts have filed with the Commission a
Registration Statement on Form S-3 (together with all amendments and exhibits
thereto, the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the securities offered hereby.
This Prospectus does not contain all the information set forth in the
Registration Statement, certain portions of which have been omitted as
permitted by the rules and regulations of the Commission. For further
information with respect to State Street and the securities offered hereby,
reference is made to the Registration Statement and the exhibits and the
financial statements, notes and schedules filed as a part thereof or
incorporated by reference therein, which may be inspected at the public
reference facilities of the Commission at the addresses set forth above or
through the Commission's home page on the Internet. Statements made in this
Prospectus concerning the contents of any documents referred to herein are not
necessarily complete, and in each instance are qualified in all respects by
reference to the copy of such document filed as an exhibit to the Registration
Statement.
No separate financial statements of any Issuer Trust have been included
herein. State Street and the Issuer Trusts do not consider that such financial
statements would be material to holders of the Capital Securities because each
Issuer Trust is a newly formed special purpose entity, has no operating
history or independent operations and is not engaged in and does not propose
to engage in any activity other than holding as trust assets the Corresponding
Junior Subordinated Debentures of State Street and issuing the Trust
Securities. See "The Issuer Trusts," "Description of Capital Securities,"
"Description of Junior Subordinated Debentures--Corresponding Junior
Subordinated Debentures" and "Description of Guarantees." In addition, State
Street does not expect that any of the Issuer Trusts will be filing reports
under the Exchange Act with the Commission.
3
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
State Street's Annual Report on Form 10-K for the year ended December 31,
1997, which has been filed with the Commission, is incorporated into this
Prospectus by reference.
Each document or report filed by State Street pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
termination of any offering of securities made by this Prospectus shall be
deemed to be incorporated by reference into this Prospectus and to be a part
of this Prospectus from the date of filing of such document. Any statement
contained herein, or in a document all or a portion of which is incorporated
or deemed to be incorporated by reference herein, shall be deemed to be
modified or superseded for purposes of the Registration Statement and this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of the Registration Statement or this
Prospectus.
State Street will provide without charge to any person to whom this
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the foregoing documents incorporated by reference herein
(other than exhibits not specifically incorporated by reference into the texts
of such documents). Requests for such documents should be directed to: State
Street Corporation, 225 Franklin Street, Boston, Massachusetts 02110,
Attention: Marketing Services, telephone number (617) 664-3383.
4
<PAGE>
STATE STREET CORPORATION
State Street is a bank holding company organized under the laws of the
Commonwealth of Massachusetts and is a leading provider of services to
institutional investors and investment management worldwide. State Street was
organized in 1970 and conducts its business principally through its
subsidiary, State Street Bank and Trust Company ("State Street Bank"), which
traces its beginnings to the founding of the Union Bank in 1792. The charter
under which State Street Bank now operates was authorized by a special act of
the Massachusetts Legislature in 1891, and its present name was adopted in
1960. State Street's executive offices are located at 225 Franklin Street,
Boston, Massachusetts 02110 (telephone (617) 786-3000).
THE ISSUER TRUSTS
Each Issuer Trust is a statutory business trust created under Delaware law
pursuant to (i) a trust agreement executed by State Street, as Depositor of
the Issuer Trust, and the Property Trustee, the Delaware Trustee, and the
Administrative Trustees (each as defined herein) of such Issuer Trust, and
(ii) the filing of a certificate of trust with the Delaware Secretary of
State. The trust agreement of each Issuer Trust will be amended and restated
in its entirety (each, as so amended and restated, a "Trust Agreement") prior
to the issuance of Capital Securities by such Issuer Trust, substantially in
the form filed as an exhibit to the Registration Statement of which this
Prospectus forms a part. Each Trust Agreement will be qualified as an
indenture under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). Each Issuer Trust exists for the exclusive purposes of (i)
issuing and selling its Trust Securities, (ii) using the proceeds from the
sale of such Trust Securities to acquire a series of Corresponding Junior
Subordinated Debentures issued by State Street, and (iii) engaging in only
those other activities necessary or incidental thereto (such as registering
the transfer of Trust Securities). Accordingly, the Corresponding Junior
Subordinated Debentures will be the sole assets of each Issuer Trust, and
payments under the Corresponding Junior Subordinated Debentures will be the
sole revenue of each Issuer Trust.
All of the Common Securities of each Issuer Trust will be owned by State
Street. The Common Securities of an Issuer Trust will rank pari passu, and
payments will be made thereon pro rata with the Capital Securities of each
Issuer Trust, except that upon the occurrence and continuance of an event of
default under a Trust Agreement resulting from an event of default under the
Indenture, the rights of State Street as holder of the Common Securities to
payment in respect of Distributions and payments upon liquidation or
redemption will be subordinated to the rights of the holders of the Capital
Securities of such Issuer Trust. See "Description of Capital Securities--
Subordination of Common Securities." State Street will acquire Common
Securities in an aggregate Liquidation Amount equal to not less than 3% of the
total capital of each Issuer Trust.
Unless otherwise specified in the applicable Prospectus Supplement, each
Issuer Trust has a term of approximately 55 years, but may dissolve earlier as
provided in the applicable Trust Agreement. Each Issuer Trust's business and
affairs are conducted by its trustees, each appointed by State Street as
holder of the Common Securities. The trustees for each Issuer Trust will be
The First National Bank of Chicago, as the Property Trustee (the "Property
Trustee"), First Chicago Delaware Inc., as the Delaware Trustee (the "Delaware
Trustee"), and two individual trustees (the "Administrative Trustees") who are
employees or officers of or affiliated with State Street (collectively, the
"Issuer Trustees"). The First National Bank of Chicago, as Property Trustee,
will act as sole trustee under each Trust Agreement for purposes of compliance
with the Trust Indenture Act. The First National Bank of Chicago will also act
as trustee under the Guarantees and the Junior Subordinated Indenture. See
"Description of Guarantees" and "Description of Junior Subordinated
Debentures." The holder of the Common Securities of an Issuer Trust, or the
holders of a majority in Liquidation Amount of the Related Capital Securities
if an event of default under the Trust Agreement
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for such Issuer Trust has occurred and is continuing, will be entitled to
appoint, remove or replace the Property Trustee and/or the Delaware Trustee
for such Issuer Trust. In no event will the holders of the Capital Securities
have the right to vote to appoint, remove or replace the Administrative
Trustees; such voting rights are vested exclusively in the holder of the
Common Securities. The duties and obligations of each Issuer Trustee are
governed by the applicable Trust Agreement. State Street will pay all fees and
expenses related to each Issuer Trust and the offering of the Capital
Securities and will pay, directly or indirectly, all ongoing costs, expenses
and liabilities of each Issuer Trust.
The principal executive office of each Issuer Trust is c/o State Street Bank
and Trust Company, N.A., 61 Broadway, 15th Floor, New York, New York 10005,
and each Issuer Trust's telephone number is (212) 612-3000.
USE OF PROCEEDS
The net proceeds from the sale of any Offered Securities will be used for
the purposes specified in the applicable Prospectus Supplement, which may
include, but are not limited to, being added to State Street's general funds
and being used for general corporate purposes, including investments in the
capital of or extensions of credit to State Street Bank and the repayment or
refinancing of long and short-term debt. Pending such use, the proceeds may be
temporarily invested in short-term securities. State Street expects that it
will engage from time to time in additional financings of a character and in
an amount to be determined. The Corporation and State Street Bank regularly
investigate possible acquisitions. The Corporation and State Street Bank are
currently investigating or in discussions with respect to potential
acquisitions, but have no agreements or understandings with respect thereto.
All of the proceeds to an Issuer Trust from the sale of any Capital Securities
will be invested by the Issuer Trust in the Corresponding Junior Subordinated
Debentures.
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DESCRIPTION OF DEBT SECURITIES
The Senior Debt Securities are to be issued under an Indenture, dated as of
August 2, 1993 (the "Senior Indenture"), between State Street and U.S. Bank
Trust National Association, as successor Trustee. The Subordinated Debt
Securities (other than the Junior Subordinated Debentures) are to be issued
under a second Indenture (the "Subordinated Indenture") that is expected to be
entered into between State Street and U.S. Bank Trust National Association, as
Trustee. The Junior Subordinated Debentures are to be issued under a Junior
Subordinated Indenture, dated as of December 15, 1996, as supplemented from
time to time (as so supplemented, the "Junior Subordinated Indenture"),
between State Street and The First National Bank of Chicago, as Trustee (the
"Debenture Trustee"). The form of the Subordinated Indenture has been filed
with the Commission as an Exhibit to the Registration Statement. The Senior
Indenture has been filed with the Commission as Exhibit 4 to State Street's
Current Report on Form 8-K dated October 8, 1993. The Junior Subordinated
Indenture has been filed with the Commission as Exhibit 1 to State Street's
Current Report on Form 8-K dated February 27, 1997. The Senior Indenture and
the Subordinated Indenture are sometimes referred to collectively as the
"Indentures." See "Description of Junior Subordinated Debentures--The Junior
Subordinated Indenture" for information on the Junior Subordinated Indenture.
U.S. Bank Trust National Association is hereinafter referred to as the "Senior
Trustee" when referring to it in its capacity as trustee under the Senior
Indenture, as the "Subordinated Trustee" when referring to it in its capacity
as trustee under the Subordinated Indenture, and as the "Trustee" when
referring to it in its capacity as trustee under the Senior Indenture and the
Subordinated Indenture. The following summaries of certain provisions of the
Senior Debt Securities, the Subordinated Debt Securities and the Indentures do
not purport to be complete and are subject to, and are qualified in their
entirety by reference to, all the provisions of the Indenture applicable to a
particular series of Senior Debt Securities or Subordinated Debt Securities
(the "Applicable Indenture"), including the definitions therein of certain
terms. Article and Section references used herein are references to the
Applicable Indenture. Capitalized terms not otherwise defined herein shall
have the meaning given to them in the Applicable Indenture. The following sets
forth certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of any specific series
of Securities offered by any Prospectus Supplement (the "Applicable Prospectus
Supplement") will be described in such Prospectus Supplement.
GENERAL
The Indentures do not limit the amount of Debt Securities that may be issued
thereunder and provide that Debt Securities may be issued thereunder from time
to time in one or more series. The Debt Securities will be unsecured
obligations of State Street. Because State Street is a holding company, the
right of State Street to participate in any distribution of assets of any
subsidiary, including State Street Bank, upon such subsidiary's liquidation or
reorganization or otherwise, is subject to the prior claims of creditors of
the subsidiary, except to the extent State Street may itself be recognized as
a creditor of that subsidiary. Accordingly, the Debt Securities will be
effectively subordinated to all existing and future liabilities of State
Street's subsidiaries, and holders of Debt Securities should look only to the
assets of State Street for payments on the Debt Securities.
Unless otherwise indicated in the Applicable Prospectus Supplement,
principal of and any premium and interest on the Debt Securities will be
payable, and the transfer of the Debt Securities will be registrable, at the
office or agency of State Street maintained for such purpose, except that, at
the option of State Street, interest may be paid by mailing a check to the
address of the Person entitled thereto as it appears on the register for the
Debt Securities. The Debt Securities will be issued only in fully registered
form without coupons and, unless otherwise indicated in the Applicable
Prospectus Supplement, in denominations of $1,000 or any integral multiple
thereof. No service charge will be made for any registration of transfer or
exchange of the Debt Securities, but State
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Street may require payment of a sum sufficient to cover any tax or other
governmental charge imposed in connection therewith.
The Applicable Prospectus Supplement will describe the following terms of
the Debt Securities offered thereby, to the extent applicable: (1) the title
of the Debt Securities; (2) whether the Debt Securities are Senior Debt
Securities or Subordinated Debt Securities; (3) any limit on the aggregate
principal amount of the Debt Securities; (4) the date or dates on which the
Debt Securities will mature; (5) the rate or rates (which may be fixed or
variable) per annum at which the Debt Securities will bear interest, if any,
and the date or dates from which such interest, if any, will accrue; (6) the
dates on which such interest, if any, on the Debt Securities will be payable
and the Regular Record Dates for such Interest Payment Dates; (7) any
mandatory or optional sinking funds or analogous provisions; (8) the date, if
any, after which and the price or prices at which the Debt Securities may,
pursuant to any optional or mandatory redemption provisions, be redeemed and
the other detailed terms and provisions of any such optional or mandatory
redemption provision; (9) the obligation of State Street, if any, to redeem or
repurchase the Debt Securities at the option of the Holder; (10) if other than
denominations of $1,000 and any integral multiple thereof, the denominations
in which the Debt Securities will be issuable; (11) if other than the
principal amount thereof, the portion of the principal amount of the Debt
Securities that will be payable upon the declaration of acceleration of the
Maturity thereof; (12) if other than U.S. dollars, the currency of payment of
principal of and any premium and interest on the Debt Securities; (13) any
index used to determine the amount of payment of principal of and any premium
and interest on the Debt Securities; (14) the applicability of the provisions
described under Defeasance with respect to the Debt Securities; (15) if the
Debt will be issuable only in the form of a Global Security, the Depositary or
its nominee with respect to the Debt Securities and the circumstances under
which the Global Security may be registered for transfer or exchange in the
name of a Person other than the Depository or its nominee; (16) the person to
whom any interest on the Debt Securities of the series shall be payable if
other than the person in whose name the Debt Securities is registered at the
close of business on the Regular Record Date for such interest; (17) the place
or places where the principal of and any premium and interest on any Debt
Securities of the series shall be payable; (18) if the principal of or any
premium or interest on any Debt Securities of the series is to be payable, at
the election of State Street or the Holder thereof, in one or more currencies
or currency units other than that or those in which such Debt Securities are
stated to be payable, the currency, currencies or currency units in which the
principal of or any premium or interest on such Debt Securities as to which
such election is made shall be payable, the periods within which and the terms
and conditions upon which such election is to be made and the amount so
payable (or the manner in which such amount shall be determined); (19) if the
principal amount payable at the Stated Maturity of any Debt Securities of the
series will not be determinable as of any one or more dates prior to the
Stated Maturity, the amount which shall be deemed to be the principal amount
of such Debt Securities as of any such date, including the principal amount
thereof which shall be due and payable upon any Maturity other than the Stated
Maturity or which shall be deemed to be Outstanding as of any date prior to
the Stated Maturity (or, in any such case, the manner in which such amount
deemed to be the principal amount shall be determined); (20) any addition to
or change in the Events of Default which applies to any Debt Securities of the
series and any change in the right of the Trustee or the requisite Holders of
such Debt Securities to declare the principal amount thereof due and payable;
(21) any addition to or change in the covenants which applies to Debt
Securities of the series; and (22) any other terms of the Debt Securities.
Both Senior Debt Securities and Subordinated Debt Securities may be issued
as discounted Debt Securities (bearing no interest or interest at a rate which
at the time of issuance is below market rates) to be sold at a substantial
discount below their stated principal amount. Federal income tax consequences
and other special considerations applicable to any such discounted Securities
will be described in the Applicable Prospectus Supplement.
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Both Indentures provide that without the consent of any Holders, State
Street and the Trustee may enter into one or more supplemental indentures for
certain purposes, including (1) to add to the covenants of State Street for
the benefit of the Holders of all or any series of Debt Securities or to
surrender any right or power conferred upon State Street in the Indentures and
(2) to add any additional Events of Default, in the case of the Senior
Indenture, and Events of Default or Defaults, in the case of the Subordinated
Indenture.
In the event any sinking fund is established for the retirement of Debt
Securities of any series, State Street may satisfy all or any part of the
sinking fund payments with Debt Securities of such series under certain
circumstances and to the extent provided for by the terms of such Debt
Securities.
Unless otherwise indicated in the Applicable Prospectus Supplement, the
covenants contained in the Indentures and the Debt Securities will not afford
Holders protection in the event of a sudden decline in the creditworthiness of
State Street that might result from a recapitalization, restructuring, or
other highly leveraged transaction.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Unless otherwise indicated in the Applicable Prospectus Supplement, the
following provisions shall apply to the Subordinated Debt Securities.
The payment of the principal of, premium, if any, and interest on the
Subordinated Debt Securities will be subordinated in right of payment to the
prior payment in full of all Senior Indebtedness. In certain events of
insolvency, the payment of the principal of, premium, if any, and interest on
the Subordinated Debt Securities will, to the extent set forth in the
Subordinated Indenture, also be subordinated in right of payment to the prior
payment in full of all Other Financial Obligations. Upon any payment or
distribution of assets to creditors upon any liquidation, dissolution, winding
up, reorganization, assignment for the benefit of creditors, marshaling of
assets or any bankruptcy, insolvency or similar proceedings of State Street,
the holders of all Senior Indebtedness will first be entitled to receive
payment in full of all amounts due or to become due thereon before the Holders
of the Subordinated Debt Securities will be entitled to receive any payment in
respect of the principal of, premium, if any, or interest on the Subordinated
Debt Securities. If upon any such payment or distribution of assets to
creditors, there remain, after giving effect to such subordination provisions
in favor of the holders of Senior Indebtedness, any amounts of cash, property
or securities available for payment or distribution in respect of Subordinated
Debt Securities ("Excess Proceeds") and if, at such time, any Entitled Persons
in respect of Other Financial Obligations have not received payment in full of
all amounts due or to become due on or in respect of such Other Financial
Obligations, then such Excess Proceeds shall first be applied to pay or
provide for the payment in full of such Other Financial Obligations before any
payment or distribution may be made in respect of the Subordinated Debt
Securities. In the event of the acceleration of the maturity of any
Subordinated Debt Securities, the holders of all Senior Indebtedness will
first be entitled to receive payment in full of all amounts due or to become
due thereon before the Holders of the Subordinated Debt Securities will be
entitled to receive any payment of the principal of, premium, if any, or
interest on the Subordinated Debt Securities. Accordingly, in case of such an
acceleration, all Senior Indebtedness would have to be repaid before any
payment could be made in respect of the Subordinated Debt Securities. No
payments on account of principal, premium, if any, or interest in respect of
the Subordinated Debt Securities may be made if there shall have occurred and
be continuing a default in any payment with respect to any Senior
Indebtedness, or if any judicial proceeding shall be pending with respect to
any such default.
By reason of such subordination, in the event of the insolvency of State
Street, creditors of State Street who are not holders of Senior Indebtedness
or the Subordinated Debt Securities may recover
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less, ratably, than holders of Senior Indebtedness and may recover more,
ratably, than Holders of the Subordinated Debt Securities. By reason of the
obligation of the Holders of Subordinated Debt Securities to pay over any
Excess Proceeds to Entitled Persons in respect of Other Financial Obligations,
in the event of the insolvency of State Street, holders of Existing
Subordinated Indebtedness (as defined in the Subordinated Indenture) may
recover less, ratably, than Entitled Persons in respect of Other Financial
Obligations and may recover more, ratably, than the Holders of Subordinated
Debt Securities. State Street's obligations under the Subordinated Debt
Securities shall rank pari passu in right of payment with each other and with
the Existing Subordinated Indebtedness, subject to the obligations of the
Holders of Subordinated Debt Securities to pay over any Excess Proceeds to
Entitled Persons in respect of Other Financial Obligations as provided in the
Subordinated Indenture.
The Subordinated Indenture permits, at any time, the modification or
elimination of the rights of Entitled Persons in respect of Other Financial
Obligations described above without the consent of any Entitled Persons in
respect of Other Financial Obligations.
"Senior Indebtedness" is defined in the Subordinated Indenture to mean the
principal of and premium, if any, and interest on (1) indebtedness of State
Street (other than the Subordinated Debt Securities) whether or not secured
and whether incurred previously or subsequent to the date of execution of the
Subordinated Indenture (A) for borrowed money, or (B) incurred in connection
with the acquisition by State Street of assets other than in the ordinary
course of business, in each case described in clause (A) or (B) for the
payment of which State Street (or any corporation or person which becomes a
successor to State Street pursuant to the terms of the Subordinated Indenture
described below under the heading "Consolidation, Merger and Sale of Assets")
is liable directly or indirectly by guarantee, letter of credit, obligation to
purchase or acquire or otherwise, unless in the terms of the instrument
creating or evidencing any such indebtedness or pursuant to which it is
outstanding it is specifically provided that such indebtedness is not superior
in right of payment to the Subordinated Debt Securities or ranks pari passu
with the Subordinated Debt Securities and (2) renewals, extensions or
deferrals of any such indebtedness.
"Existing Subordinated Indebtedness" is defined in the Subordinated
Indenture as State Street's 7.75% Convertible Subordinated Debentures.
"Other Financial Obligations" is defined in the Subordinated Indenture as,
unless otherwise determined with respect to any series of Securities pursuant
to terms described in the Applicable Prospectus Supplement, (a) obligations of
State Street under credit substitutes, (b) obligations and guaranties of State
Street for purchased money or funds, (c) any deferred obligation of, or any
direct or indirect guaranty of any such obligation by, State Street incurred
in connection with the acquisition by State Street of assets, and (d) all
obligations of State Street to make payment pursuant to the terms of financial
instruments, such as (i) securities contracts and foreign currency exchange
contracts, (ii) derivative instruments, such as swap agreements (including
interest rate and foreign exchange rate swap agreements), cap agreements,
floor agreements, collar agreements, interest rate agreements, foreign
exchange rate agreements, options, commodity futures contracts and commodity
option contracts and (iii) financial instruments similar to those set forth in
(d)(i) and (ii); provided that Other Financial Obligations do not include (A)
obligations on account of Senior Indebtedness and (B) obligations on account
of indebtedness for money borrowed ranking pari passu with or subordinate to
the Subordinated Debt Securities including Existing Subordinated Indebtedness.
"Entitled Person" is defined in the Subordinated Indenture as any person who
is entitled to payment pursuant to the terms of Other Financial Obligations.
The Subordinated Indenture will not limit the amount of other indebtedness,
including Senior Indebtedness or Other Financial Obligations, that may be
issued by State Street, State Street Bank
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or any of its other Subsidiaries. As of December 31, 1997, State Street had
approximately $253 million of Senior Indebtedness outstanding and no Other
Financial Obligations outstanding.
LIMITATION UPON DISPOSITION OF VOTING STOCK OR ASSETS OF STATE STREET BANK
The Senior Indenture contains a covenant by State Street that, so long as
any of the Senior Debt Securities are outstanding, it will not sell, assign,
transfer, grant a security interest in or otherwise dispose of any shares of,
or securities convertible into, or options, warrants or rights to subscribe
for or purchase shares of, Voting Stock of State Street Bank or of any
Subsidiary which owns Voting Stock of State Street Bank, nor will it permit
State Street Bank to issue any shares of, or securities convertible into, or
options, warrants or rights to subscribe for or purchase shares of, Voting
Stock of State Street Bank (except for mergers, consolidations or combinations
of State Street with State Street Bank or in conjunction with a merger of
State Street and State Street Bank with a third corporation) or to sell, lease
or otherwise dispose of all or substantially all of its property, assets and
business, unless (a) any sale, assignment, transfer, grant of a security
interest, lease or other disposition is made for fair market value, as
determined by the Board of Directors of State Street and (b) in the case of
any such sale, assignment, transfer, grant of a security interest or other
disposition of shares of, securities convertible into or options, warrants or
rights to subscribe for or purchase shares of Voting Stock of State Street
Bank or of any such Subsidiary, State Street will own at least 80% of the
issued and outstanding Voting Stock of State Street Bank free and clear of any
security interest after giving effect to such transaction.
The Subordinated Indenture does not contain a similar restriction on State
Street's ability to engage in or permit such transactions to occur.
EVENTS OF DEFAULT
THE SENIOR INDENTURE
The Senior Indenture (with respect to any series of Senior Debt Securities)
defines an Event of Default as any one of the following events: (a) default in
the payment of any interest upon any Senior Security when it becomes due and
payable, and continuance of such default for a period of 30 days; (b) default
in the payment of the principal of (or premium, if any, on) any Senior
Security at its Maturity; (c) failure to deposit any sinking fund payment when
due; (d) failure to perform any other covenants or warranties of State Street
in the Senior Indenture (other than a covenant or warrant included in the
Senior Indenture solely for the benefit of a series of Senior Debt Securities
thereunder other than that series) continued for a period of 60 days after the
holders of at least 10% in principal amount of the Outstanding Senior Debt
Securities have given written notice as provided in the Senior Indenture; (e)
acceleration of any indebtedness for borrowed money in an aggregate principal
amount exceeding $20,000,000 of State Street or of State Street Bank, if such
acceleration is not annulled within 30 days after written notice as provided
in the Senior Indenture; (f) certain events in bankruptcy, insolvency or
reorganization of State Street or State Street Bank; and (g) any other Event
of Default provided with respect to Senior Debt Securities of that series.
If an Event of Default with respect to the Senior Debt Securities of any
series at the time Outstanding occurs and is continuing, either the Senior
Trustee or the Holders of at least 25% in aggregate principal amount of the
Outstanding Senior Debt Securities of that series may, by notice, declare the
principal amount (or, if the Senior Debt Securities of that series are
Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms thereof) of all the Securities of that series to
be due and payable immediately. At any time after the declaration of
acceleration with respect to Senior Debt Securities of any series has been
made, but before a judgment or decree based on acceleration has been obtained,
the Holders of a majority in aggregate principal amount of Outstanding Senior
Debt Securities of that series may, under certain circumstances, rescind and
annul such acceleration.
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THE SUBORDINATED INDENTURE
The Subordinated Indenture defines an Event of Default (with respect to any
series of Subordinated Debt Securities) as certain events involving the
bankruptcy, insolvency or reorganization of State Street.
If an Event of Default with respect to Subordinated Debt Securities of any
series at the time Outstanding occurs and is continuing, either the
Subordinated Trustee or the Holders of not less than 25% in principal amount
of the Outstanding Subordinated Debt Securities of that series may declare the
principal amount (or, if the Subordinated Debt Securities of that series are
Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of that series) of all Subordinated Debt
Securities of that series to be due and payable immediately. At any time after
a declaration of acceleration with respect to Subordinated Debt Securities of
any series has been made, but before a judgment or decree based on the
acceleration has been obtained, Holders of a majority in principal amount of
the Outstanding Subordinated Debt Securities of that series may, under certain
circumstances, rescind and annul such acceleration.
Rights of acceleration are limited to circumstances involving an Event of
Default. The Subordinated Indenture does not provide for any right of
acceleration of the payment of principal of a series of Subordinated Debt
Securities upon a default in the payment of principal, premium, if any, or
interest or in the performance of any covenant or agreement in the
Subordinated Debt Securities of the particular series or in the Subordinated
Indenture.
The Subordinated Indenture defines a Default as any one of the following
events: (a) an Event of Default; (b) default in the payment of interest on any
Subordinated Security when such interest becomes due and payable and such
default continues for a period of 30 days or in the payment of the principal
of (or premium, if any, on) any Subordinated Security at its Maturity (whether
or not payment is prohibited by the subordinated provisions); (c) failure to
deposit any sinking fund payment when due (whether or not payment is
prohibited by the subordination provisions); (d) failure to perform any other
covenants or warranties of State Street in the Subordinated Indenture (other
than a covenant or warranty included in the Subordinated Indenture solely for
the benefit of a series of Subordinated Debt Securities thereunder other than
that series) continued for a period of 60 days after the holders of at least
10% in principal amount of the Outstanding Subordinated Debt Securities have
given written notice as provided in the Subordinated Indenture; (e)
acceleration of any indebtedness for borrowed money in an aggregate principal
amount exceeding $20,000,000 of State Street or of State Street Bank, if such
acceleration is not annulled within 30 days after written notice as provided
in the Subordinated Indenture; (f) certain events in bankruptcy, insolvency or
reorganization of State Street or State Street Bank; and (g) any other Default
provided with respect to Securities of that series. In case a Default shall
occur and be continuing, the Subordinated Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the Holders of
Subordinated Debt Securities to the payment of due and unpaid principal and
interest or the performance of such covenant or agreement by appropriate
judicial proceedings as the Subordinated Trustee deems most effectual,
including proceedings seeking the payment by State Street of money damages for
the breach by State Street of its obligations and the execution upon any
judgment entered against State Street. Unless such a Default involved an Event
of Default, the Subordinated Trustee would have no rights of acceleration.
BOTH INDENTURES
Both Indentures provide that, subject to the duty of the Trustee during
default to act with the required standard of care set forth therein, the
Trustee will be under no obligation to exercise any of its rights or powers
under the Indentures at the request or direction of any of the Holders, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity. Subject to such provisions
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for the indemnification of the Trustee and to certain other conditions, the
Holders of a majority in aggregate principal amount of Outstanding Senior Debt
Securities or Outstanding Subordinated Debt Securities of any series will have
the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Senior Trustee and Subordinated Trustee,
respectively, or exercising any trust or power conferred on the Senior Trustee
and Subordinated Trustee, respectively.
No Holder of any series of Debt Securities will have any right to institute
any proceeding with respect to the Applicable Indenture or for any remedy
thereunder, unless such Holder shall have previously given to the Trustee
under the Applicable Indenture written notice of a continuing Event of Default
and unless the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series shall have made written request, and
offered reasonable indemnity, to such Trustee to institute such proceeding as
trustee, and such Trustee shall not have received from the Holders of a
majority in aggregate principal amount of the Outstanding Securities of that
series a direction inconsistent with such request and shall have failed to
institute such proceeding within 60 days. However, such limitations do not
apply to a suit instituted by a Holder of a Debt Security for enforcement of
payment of the principal of, premium, if any, or interest, if any, on such
Debt Security on or after the respective due dates expressed in such Debt
Security.
State Street is required to furnish to the Trustee annually a statement as
to the performance by State Street of certain of its obligations under the
Indentures and as to any default in such performance.
MODIFICATION AND WAIVER
Modifications and amendments of each of the Senior Indenture and the
Subordinated Indenture may be made by State Street and the Trustee under the
Applicable Indenture with the consent of the Holders of not less than two-
thirds in aggregate principal amount of the Debt Securities of each series
issued under such Indenture and affected by the modification or amendment;
provided, however, that no such modification or amendment may, without the
consent of the Holders of all Debt Securities affected thereby, (1) change the
Stated Maturity of the principal of, or any installment of principal of or
interest on, any Debt Security; (2) reduce the principal amount of or the
premium, if any, or (unless otherwise provided in the Applicable Prospectus
Supplement) interest on, any Debt Security (including in the case of any
discounted Debt Security the amount payable upon acceleration of the maturity
thereof); (3) change the place or currency of payment of principal of,
premium, if any, or interest on any Debt Security; (4) impair the right to
institute suit for the enforcement of any payment on or with respect to any
Debt Security; (5) in the case of the Subordinated Indenture, modify the
subordination provisions in a manner adverse to the Holders of the
Subordinated Debt Securities; or (6) reduce the percentage in principal amount
of Debt Securities, the consent of whose Holders is required for modification
or amendment of the Indenture or for waiver of compliance with certain
provisions of the Indenture or for waiver of certain defaults.
The Holders of at least two-thirds in aggregate principal amount of the
Senior Debt Securities or Subordinated Debt Securities may, on behalf of all
Holders of the Senior Debt Securities or Subordinated Debt Securities,
respectively, waive compliance by State Street with certain restrictive
provisions of the Applicable Indenture. The effect of any such waiver would be
to excuse State Street from complying with such provisions which may include
certain covenants for the benefit of Holders. The Holders of a majority in
aggregate principal amount of the Senior Debt Securities or the Subordinated
Debt Securities may, on behalf of all Holders of the Senior Debt Securities or
the Subordinated Debt Securities, respectively, waive any past default under
the Applicable Indenture, except a default in the payment of principal,
premium or interest or in the performance of certain covenants.
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CONSOLIDATION, MERGER AND SALE OF ASSETS
State Street, without the consent of the Holders of any of the Debt
Securities under the Indentures, may consolidate with or merge into any other
corporation, may transfer or lease its assets substantially as an entirety to
any Person, or may acquire or lease the assets of any Person substantially as
an entirety, or may permit any Person to merge into or consolidate with State
Street, provided that (1) any successor or purchaser is a corporation
organized under the laws of any domestic jurisdiction; (2) any such successor
or purchaser assumes State Street's obligations on such Debt Securities and
under the Indenture; (3) after giving effect to the transaction no Event of
Default in the case of Senior Debt Securities and no Default in the case of
Subordinated Debt Securities, and no event that, after notice or lapse of
time, would become an Event of Default or Default, as the case may be, shall
have occurred and be continuing; and (4) certain other conditions are met.
DEFEASANCE
The Indentures provide that State Street, at State Street's option, will be
discharged from any and all obligations in respect of the Debt Securities of
any series (except for certain obligations to register the transfer of or to
exchange Debt Securities of such series, to replace stolen, lost or mutilated
Debt Securities of such series, to maintain paying agencies and hold moneys
for payment in trust) if State Street deposits, in trust, with the Trustee
money or U.S. Government Obligations, which through the payment of interest
thereon and principal thereof in accordance with their terms will provide
money in an amount sufficient to pay all the principal of, premium, if any,
and interest on the Debt Securities of such series on the dates such payments
are due in accordance with the terms of the Debt Securities of such series.
Such a trust may be established only if, among other things, (i) no Event of
Default under the Senior Indenture or Default under the Subordinated Indenture
or event which with the giving of notice or lapse of time, or both, would
become such an Event of Default under the Senior Indenture or Default under
the Subordinated Indenture shall have occurred and be continuing on the date
of such deposit, (ii) such deposit will not result in a breach or violation of
any agreement or instrument to which State Street is a party and (iii) State
Street shall have delivered an Opinion of Counsel to the effect that the
Holders will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit of defeasance and will be subject to
Federal income tax in the same manner as if such defeasance had not occurred.
CONCERNING THE TRUSTEE
U.S. Bank Trust National Association is the Trustee under both the Senior
Indenture and the Subordinated Indenture. State Street and certain of its
subsidiaries, including State Street Bank, conduct banking transactions with
U.S. Bank Trust National Association and its affiliates in the ordinary course
of business.
GOVERNING LAW
Both Indentures are, and the Senior Debt Securities and Subordinated Debt
Securities will be, governed by and construed in accordance with the laws of
the State of New York.
DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES
The Junior Subordinated Debentures are to be issued in one or more series
under the Junior Subordinated Indenture. This summary of certain terms and
provisions of the Junior Subordinated Debentures, Corresponding Junior
Subordinated Debentures and the Junior Subordinated Indenture, which
summarizes the material provisions thereof, does not purport to be complete
and is subject to, and is qualified in its entirety by reference to, the
Junior Subordinated Indenture, a copy of the form
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of which is filed as an Exhibit to the Registration Statement, and the Trust
Indenture Act. The Junior Subordinated Indenture is qualified under the Trust
Indenture Act. Whenever particular defined terms of the Indenture (as
supplemented or amended from time to time) are referred to herein or in a
Prospectus Supplement, such defined terms are incorporated herein or therein
by reference.
GENERAL
Each series of Junior Subordinated Debentures will rank pari passu with all
other series of Junior Subordinated Debentures heretofore or hereafter issued
pursuant to the Junior Subordinated Indenture, and will be unsecured and
subordinate and junior in right of payment to the extent and in the manner set
forth in the Junior Subordinated Indenture to all Senior Debt (as defined
below) of State Street. See "--Subordination." Because State Street is a
holding company, the right of State Street to participate in any distribution
of assets of any subsidiary, including State Street Bank, upon such
subsidiary's liquidation or reorganization or otherwise, is subject to the
prior claims of creditors of the subsidiary, except to the extent State Street
may itself be recognized as a creditor of that subsidiary. Accordingly, the
Junior Subordinated Debentures will be effectively subordinated to all
existing and future liabilities of State Street's subsidiaries, and holders of
Junior Subordinated Debentures should look only to the assets of State Street
for payments on the Junior Subordinated Debentures. Except as otherwise
provided in the Applicable Prospectus Supplement, the Junior Subordinated
Indenture does not limit the incurrence or issuance of other secured or
unsecured debt of State Street, including Senior Debt Securities and
Subordinated Debt Securities, whether under the Junior Subordinated Indenture,
the Senior Indenture, the Subordinated Indenture, any other existing indenture
or any other indenture that State Street may enter into in the future or
otherwise. See "--Subordination" and the Applicable Prospectus Supplement
relating to any offering of Capital Securities or Junior Subordinated
Debentures.
The Junior Subordinated Debentures will be issuable in one or more series
pursuant to an indenture supplemental to the Indenture or a resolution or
State Street's Board of Directors or a committee thereof.
The Applicable Prospectus Supplement will describe the following terms of
the Junior Subordinated Debentures offered thereby: (1) the title of such
Junior Subordinated Debentures; (2) any limit upon the aggregate principal
amount of such Junior Subordinated Debentures; (3) the date or dates on which
the principal of such Junior Subordinated Debentures is payable (the "Stated
Maturity") or the method of determination thereof; (4) the rate or rates, if
any, at which any such interest shall be payable (the "Interest Payment
Dates"), the right, if any, of State Street to defer or extend an Interest
Payment Date (the "Regular Record Dates") and the method by which any of the
foregoing shall be determined; (5) the place or places where, subject to the
terms of the Junior Subordinated Indenture as described below under "--Payment
and Paying Agents," the principal of and premium, if any, and interest on such
Junior Subordinated Debentures will be payable and where, subject to the terms
of the Junior Subordinated Indenture as described below under "--
Denominations, Registration and Transfer," such Junior Subordinated Debentures
may be presented for registration of transfer or exchange and the place or
places where notices and demands to or upon State Street in respect of such
Junior Subordinated Debentures and the Junior Subordinated Indenture may be
made ("Place of Payment"); (6) any period or periods within which, or date or
dates on which, the price or prices at which and the terms and conditions upon
which such Junior Subordinated Debentures may be redeemed, in whole or in
part, at the option of State Street or a holder thereof; (7) the obligation or
the right, if any, of State Street or a holder thereof to redeem, purchase or
repay such Junior Subordinated Debentures and the period or periods within
which, the price or prices at which, the currency or currencies (including
currency unit or units) in which and the other terms and conditions upon which
such Junior Subordinated Debentures shall be redeemed, repaid or purchased, in
whole or in part, pursuant to such obligation or right; (8) the denominations
in
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which such Junior Subordinated Debentures shall be issuable; (9) if other than
in U.S. Dollars, the currency or currencies (including currency unit or units)
in which the principal of (and premium, if any) and interest, if any, on the
Junior Subordinated Debentures shall be payable, or in which such Junior
Subordinated Debentures shall be payable, or in which such Junior Subordinated
Debentures shall be denominated; (10) any additions, modifications or
deletions in the events of default under the Junior Subordinated Indenture or
in the covenants of State Street specified in the Junior Subordinated
Indenture with respect to such Junior Subordinated Debentures; (11) if other
than the principal amount thereof, the portion of the principal amount of such
Junior Subordinated Debentures that shall be payable upon declaration of
acceleration of the maturity thereof; (12) any additions or changes to the
Junior Subordinated Indenture with respect to such Junior Subordinated
Debentures as shall be necessary to permit or facilitate the issuance of such
Junior Subordinated Debentures in bearer form, registrable or not registrable
as to principal, and with or without interest coupons; (13) any index or
indices used to determine the amount of payments of principal of and premium,
if any, on such Junior Subordinated Debentures and the manner in which such
amounts will be determined; (14) the terms and conditions relating to the
issuance of a temporary Global Security representing all of such Junior
Subordinated Debentures and the exchange of such temporary Global Security for
definitive Junior Subordinated Debentures of such series; (15) subject to the
terms described herein under "--Global Junior Subordinated Debentures,"
whether such Junior Subordinated Debentures shall be issued in whole or in
part in the form of one or more Global Securities and, in such case, the
depositary for such Global Securities, which depositary shall be a clearing
agency registered under the Exchange Act; (16) the appointment of any paying
agent or agents; (17) the terms and conditions of any obligation or right of
State Street or a holder to convert or exchange such Junior Subordinated
Debentures into Capital Securities; (18) the form of Trust Agreement and
Guarantee Agreement, if applicable; and (19) any other terms of the Junior
Subordinated Debentures not inconsistent with the provisions of the Junior
Subordinated Indenture.
Junior Subordinated Debentures may be sold at a substantial discount below
their stated principal amount, bearing no interest or interest at a rate which
at the time of issuance is below market rates. Certain United States federal
income tax consequences and special considerations applicable to any such
Junior Subordinated Debentures will be described in the Applicable Prospectus
Supplement.
If the purchase price of any of the Junior Subordinated Debentures is
payable in one or more foreign currencies or currency units or if any Junior
Subordinated Debentures are denominated in one or more foreign currencies or
currency units or if the principal of, premium, if any, or interest on any
Junior Subordinated Debentures is payable in one or more foreign currencies or
currency units, the restrictions, elections, certain United States federal
income tax consequences, specific terms and other information with respect to
such series of Junior Subordinated Debentures and such foreign currency or
currency units will be set forth in the Applicable Prospectus Supplement.
If any index is used to determine the amount of payments of principal of,
premium, if any, or interest on any series of Junior Subordinated Debentures,
special United States federal income tax, accounting and other considerations
applicable thereto will be described in the Applicable Prospectus Supplement.
DENOMINATIONS, REGISTRATION AND TRANSFER
Unless otherwise specified in the Applicable Prospectus Supplement, the
Junior Subordinated Debentures will be issuable only in registered form
without coupons. Junior Subordinated Debentures of any series will be
exchangeable for other Junior Subordinated Debentures of the same issue and
series, of any authorized denominations, of a like aggregate principal amount,
of the same original issue date and stated maturity and bearing the same
interest rate.
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Junior Subordinated Debentures may be presented for exchange as provided
above, and may be presented for registration of transfer (with the form of
transfer endorsed thereon, or a satisfactory written instrument of transfer,
duly executed), at the office of the appropriate securities registrar or at
the office of any transfer agent designated by State Street for such purpose
with respect to any series of Junior Subordinated Debentures and referred to
in the Applicable Prospectus Supplement, without service charge and upon
payment of any taxes and other governmental charges as described in the Junior
Subordinated Indenture. State Street will appoint the Debenture Trustee as
securities registrar under the Junior Subordinated Indenture. If the
Applicable Prospectus Supplement refers to any transfer agents (in addition to
the securities registrar) initially designated by State Street with respect to
any series of Junior Subordinated Debentures, State Street may at any time
rescind the designation of any such transfer agent or approve a change in the
location through which any such transfer agent acts, provided that State
Street maintains a transfer agent in each place of payment of such series.
State Street may at any time designate additional transfer agents with respect
to any series of Junior Subordinated Debentures.
In the event of any redemption, neither State Street nor the Debenture
Trustee shall be required to (i) issue, register the transfer of or exchange
Junior Subordinated Debentures of any series during a period beginning at the
opening of business 15 days before the day of selection for redemption of
Junior Subordinated Debentures of that series and ending at the close of
business on the day of mailing of the relevant notice of redemption or (ii)
transfer or exchange of any Junior Subordinated Debentures so selected for
redemption, except, in the case of any Junior Subordinated Debentures being
redeemed in part, any portion thereof not to be redeemed.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the Applicable Prospectus Supplement, payment
of principal of (and premium, if any) and any interest on Junior Subordinated
Debentures (other than any Junior Subordinated Debentures represented by
Global Junior Subordinated Debentures) will be made at the office of the
Debenture Trustee in the City of New York or at the office of such paying
agent or paying agents as State Street may designate from time to time, except
that at the option of State Street payment of any interest may be made (i)
except in the case of Global Junior Subordinated Debentures, by check mailed
to the address of the person entitled thereto as such address such appear in
the securities register or (ii) by transfer to an account maintained by the
person entitled thereto as specified in the securities register, provided that
proper transfer instructions have been received by the Regular Record Date.
Unless otherwise indicated in the Applicable Prospectus Supplement, payment of
any interest on Junior Subordinated Debentures will be made to the person in
whose name such Junior Subordinated Debentures are registered at the close of
business on the Regular Record Date for such interest, except in the case of
defaulted interest. State Street may at any time designate additional paying
agents or rescind the designation of any paying agent; however, State Street
will at all times be required to maintain a paying agent in each place of
payment for each series of Junior Subordinated Debentures.
Any moneys deposited with the Debenture Trustee or any paying agent, or then
held by State Street in trust, for the payment of the principal of (and
premium, if any) or interest on any Junior Subordinated Debenture and
remaining unclaimed for two years after such principal (and premium, if any)
or interest has become due and payable shall, at the request of State Street,
be repaid to State Street and the holder of such Junior Subordinated Debenture
shall thereafter look, as a general unsecured creditor, only to State Street
for payment thereof.
OPTION TO DEFER INTEREST PAYMENTS
If provided in the Applicable Prospectus Supplement, State Street will have
the right at any time and from time to time during the term of any series of
Junior Subordinated Debentures to defer
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payment of interest for up to such number of consecutive interest payment
periods as may be specified in the Applicable Prospectus Supplement (each, an
"Extension Period"), subject to the terms, conditions and covenants, if any,
specified in such Prospectus Supplement, provided, that such Extension Period
may not extend beyond the Stated Maturity of such series of Junior
Subordinated Debentures. Certain United States federal income tax consequences
and special considerations applicable to any such Junior Subordinated
Debentures will be described in the Applicable Prospectus Supplement.
REDEMPTION
Unless otherwise indicated in the Applicable Prospectus Supplement, Junior
Subordinated Debentures will not be subject to any sinking fund.
Unless otherwise indicated in the Applicable Prospectus Supplement, State
Street may, at its option and subject to receipt of prior approval by the
Federal Reserve if then required under applicable capital guidelines or
policies, redeem the Junior Subordinated Debentures of any series in whole at
any time or in part from time to time. If the Junior Subordinated Debentures
of any series are so redeemable only on or after a specified date or upon the
satisfaction of additional conditions, the applicable Prospectus Statement
will specify such date or describe such conditions. Except as otherwise
specified in the Applicable Prospectus Supplement, the redemption price for
any Junior Subordinated Debenture so redeemed shall equal any accrued and
unpaid interest thereon to the redemption date, plus 100% of the principal
amount thereof.
Except as otherwise specified in the Applicable Prospectus Supplement, if a
Tax Event (as defined below) in respect of a series of Junior Subordinated
Debentures or an Investment Company Event or Capital Treatment Event (each as
defined below) shall occur and be continuing, State Street may, at its option
and subject to receipt of prior approval by the Federal Reserve if then
required under applicable capital guidelines or policies, redeem such series
of Junior Subordinated Debentures in whole (but not in part) at any time
within 90 days following of the occurrence of such Tax Event, Investment
Company Event or Capital Treatment Event, at a redemption price equal to 100%
of the principal amount of such Junior Subordinated Debentures then
outstanding plus accrued and unpaid interest to the date fixed for redemption,
except as otherwise specified in the Applicable Prospectus Supplement.
"Tax Event" means the receipt by the Issuer Trust of a series of Capital
Securities of an opinion of counsel experienced in such matters to the effect
that, as a result of any amendment to, or change (including any announced
proposed change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein, or
as a result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change
is effective or which proposed change, pronouncement or decision is announced
on or after the date of issuance of such Capital Securities, there is more
than an insubstantial risk that (i) such Issuer Trust is, or will be within 90
days of the date of such opinion, subject to United States federal income tax
with respect to income received or accrued on the corresponding series of
Corresponding Junior Subordinated Debentures, (ii) interest payable by State
Street on such series of Corresponding Junior Subordinated Debentures is not,
or within 90 days of the date of such opinion, will not be, deductible by
State Street, in whole or in part, for United States federal income tax
purposes, or (iii) such Issuer Trust is, or will be within 90 days of the date
of such opinion, subject to more than a de minimis amount of other taxes,
duties or other governmental charges.
"Investment Company Event" means the receipt by the Issuer Trust of an
opinion of counsel to the Corporation experienced in such matters to the
effect that, as a result of the occurrence of a change in law or regulation or
a written change (including any announced prospective change) in
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interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority, there is more than an
insubstantial risk that the Issuer Trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act, which change or prospective change becomes effective or would
become effective, as the case may be, on or after the date of the issuance of
the Capital Securities.
"Capital Treatment Event" means the reasonable determination by State Street
that, as a result of any amendment to, or change (including any proposed
change) in, the laws (or any regulations thereunder) of the United States or
any political subdivision thereof or therein, or as a result of any official
or administrative pronouncement or action or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which proposed change, pronouncement, action or decision is announced on or
after the date of issuance of the applicable Capital Securities under the
applicable Trust Agreement, there is more than an insubstantial risk that
State Street will not be entitled to treat an amount equal to the Liquidation
Amount of the applicable Capital Securities as "Tier I Capital" (or the then
equivalent thereof) for purposes of the capital adequacy guidelines of the
Federal Reserve, as then in effect and applicable to State Street.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of Junior Subordinated
Debentures to be redeemed at its registered address. Unless State Street
defaults in payment of the redemption price, on and after the redemption date,
interest will cease to accrue on such Junior Subordinated Debentures or
portions thereof called for redemption.
RESTRICTIONS ON CERTAIN PAYMENTS
Pursuant to the Junior Subordinated Indenture, State Street has covenanted
with respect to each series of Junior Subordinated Debentures that it will not
(x) make any payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem any debt securities of State Street that rank pari
passu in all respects with or junior in interest to the Junior Subordinated
Debentures of such series, or (y) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any shares of State Street's capital stock (other than (a)
repurchases, redemptions or other acquisitions of shares of capital stock of
State Street in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of any one or more employees,
officers, directors or consultants, in connection with a dividend reinvestment
or stockholder stock purchase plan or in connection with the issuance of
capital stock of State Street (or securities convertible into or exercisable
for such capital stock) as consideration in an acquisition transaction entered
into prior to the applicable Extension Period, (b) as a result of an exchange
or conversion of any class or series of State Street's capital stock (or any
capital stock of a Subsidiary of State Street) for any class or series of
State Street's capital stock or of any class or series of State Street's
indebtedness for any class or series of State Street's capital stock, (c) the
purchase of fractional interests in shares of State Street's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
securities being converted or exchanged, (d) any declaration of a dividend in
connection with any rights plan, or the issuance of rights, stock or other
property under any rights plan, or the redemption or repurchase of rights
pursuant thereto, or (e) any dividend in the form of stock, warrants, options
or other rights where the dividend stock or the stock issuable upon exercise
of such warrants, options or other rights is the same stock as that on which
the dividend is being paid or ranks pari passu with or junior to such stock),
if at such time (i) there shall have occurred any event (A) of which State
Street has actual knowledge that with the giving of notice or the lapse of
time, or both, would constitute an Event of Default with respect to the Junior
Subordinated Debentures of such series, and (B) which State Street shall not
have taken reasonable steps to cure, (ii) if the Junior Subordinated
Debentures of such series are held by an Issuer Trust, State Street shall be
in default with respect to its payment of any obligations under the Guarantee
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Agreement relating to the Capital Securities issued by such Issuer Trust, or
(iii) State Street shall have given notice of its election to begin an
Extension Period with respect to the Junior Subordinated Debentures of such
series and shall not have rescinded such notice, or such Extension Period, or
any extension thereof, shall be continuing.
MODIFICATION OF JUNIOR SUBORDINATED INDENTURE
From time to time State Street and the Debenture Trustee may, without the
consent of the holders of any series of Junior Subordinated Debentures, amend,
waive or supplement the Junior Subordinated Indenture for specified purposes,
including, among other things, curing ambiguities, defects or inconsistencies
(provided that any such action does not materially adversely affect the
interests of the holders of any series of Junior Subordinated Debentures or,
in the case of Corresponding Junior Subordinated Debentures, the holders of
the Related Capital Securities so long as they remain outstanding) and
qualifying, or maintaining the qualification of, the Junior Subordinated
Indenture under the Trust Indenture Act. The Junior Subordinated Indenture
contains provisions permitting State Street and the Debenture Trustee, with
the consent of the holders of not less than a majority in principal amount of
each outstanding series of Junior Subordinated Debentures affected, to modify
the Junior Subordinated Indenture in a manner adversely affecting the rights
of the holders of such series of the Junior Subordinated Debentures in any
material respect; provided, that no such modification may, without the consent
of the holder of each outstanding Junior Subordinated Debentures so affected,
(i) change the Stated Maturity of any series of Junior Subordinated Debentures
(except as otherwise specified in the Applicable Prospectus Supplement), or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon or (ii) reduce the percentage of principal amount
of Junior Subordinated Debentures of any series, the holders of which are
required to consent to any such modification of the Junior Subordinated
Indenture, provided further that, in the case of Corresponding Junior
Subordinated Debentures, so long as any Related Capital Securities remain
outstanding, (a) no such modification may be made that adversely affects the
holders of such Capital Securities in any material respect, and no termination
of the Junior Subordinated Indenture may occur, and no waiver of any event of
default or compliance with any covenant under the Junior Subordinated
Indenture may be effective, without the prior consent of the holders of at
least a majority of the aggregate Liquidation Amount of all outstanding
Related Capital Securities affected unless and until the principal of the
Corresponding Junior Subordinated Debentures and all accrued and unpaid
interest thereon have been paid in full and certain other conditions have been
satisfied, and (b) where a consent under the Junior Subordinated Indenture
would require the consent of each holder of Corresponding Junior Subordinated
Debentures, no such consent shall be given by the Property Trustee without the
prior consent of each holder of Related Capital Securities.
In addition, State Street and the Debenture Trustee may execute, without the
consent of any holder of Junior Subordinated Debentures, any supplemental
Junior Subordinated Indenture for the purpose of creating any new series of
Junior Subordinated Debentures.
DEBENTURE EVENTS OF DEFAULT
The Junior Subordinated Indenture provides that any one or more of the
following described events with respect to a series of Junior Subordinated
Debentures that has occurred and is continuing constitutes a "Debenture Event
of Default" with respect to such series of Junior Subordinated Debentures:
(i) failure for 30 days to pay any interest on such series of Junior
Subordinated Debentures when due (subject to the deferral of any interest
payment in the case of an Extension Period); or
(ii) failure to pay any principal or premium, if any, on such series of
Junior Subordinated Debentures when due whether at maturity or upon
redemption; or
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(iii) failure to observe or perform in any material respect certain other
covenants contained in the Indenture for 90 days after written notice to
State Street from the Debenture Trustee or the holders of at least 25% in
aggregate outstanding principal amount of such affected series of
outstanding Junior Subordinated Debentures; or
(iv) certain events in bankruptcy, insolvency or reorganization of State
Street.
The holders of a majority in aggregate outstanding principal amount of
Junior Subordinated Debentures of each series affected have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Debenture Trustee. The Debenture Trustee or the holders of
not less than 25% in aggregate outstanding principal amount of Junior
Subordinated Debentures of each series affected may declare the principal due
and payable immediately upon a Debenture Event of Default, and, in the case of
Corresponding Junior Subordinated Debentures, should the Debenture Trustee or
such holders of such Corresponding Junior Subordinated Debentures fail to make
such declaration, the holders of at least 25% in aggregate Liquidation Amount
of the Related Capital Securities shall have such right. The holders of a
majority in aggregate outstanding principal amount of Junior Subordinated
Debentures of each series affected may annul such declaration. In the case of
Corresponding Junior Subordinated Debentures, should the holders of such
Corresponding Junior Subordinated Debentures fail to annul such declaration
and waive such default, the holders of a majority in aggregate Liquidation
Amount of the Related Capital Securities affected shall have such right.
The holders of a majority in aggregate outstanding principal amount of each
series of the Junior Subordinated Debentures affected thereby may, on behalf
of the holders of all the Junior Subordinated Debentures of such series, waive
any default, except a default in the payment of principal or interest (unless
such default has been cured and a sum sufficient to pay all matured
installments of interest and principal due otherwise than by acceleration has
been deposited with the Debenture Trustee) or a default in respect of a
covenant or provision which under the Junior Subordinated Indenture cannot be
modified or amended without the consent of the holder of each outstanding
Junior Subordinated Debenture. In the case of Corresponding Junior Subordinate
Debentures, should the holders of such Corresponding Junior Subordinated
Debentures fail to waive such default, the holders of a majority in aggregate
Liquidation Amount of the Related Capital Securities affected shall have such
right. State Street is required to file annually with the Debenture Trustee a
certificate as to whether or not State Street is in compliance with all the
conditions and covenants applicable to it under the Junior Subordinated
Indenture.
In case a Debenture Event of Default shall occur and be continuing as to a
series of Corresponding Junior Subordinated Debentures, the Property Trustee
will have the right to declare the principal of and the interest on such
Corresponding Junior Subordinated Debentures, and any other amounts payable
under the Junior Subordinated Indenture, to be forthwith due and payable and
to enforce its other rights as a creditor with respect to such Corresponding
Junior Subordinated Debentures.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF CAPITAL SECURITIES
If a Debenture Event of Default with respect to a series of Corresponding
Junior Subordinated Debentures has occurred and is continuing and such event
is attributable to the failure of State Street to pay interest or principal on
such Corresponding Junior Subordinated Debentures on the date such interest or
principal is due and payable, a holder of Related Capital Securities may
institute a legal proceeding directly against State Street for enforcement of
payment to such holder of the principal of or interest on such Corresponding
Junior Subordinated Debentures having a principal amount equal to the
aggregate Liquidation Amount of the Related Capital Securities of such holder
(a "Direct Action"). State Street may not amend the Indenture to remove the
foregoing right to bring a Direct
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Action without the prior written consent of the holders of all of the Capital
Securities outstanding. If the right to bring a Direct Action is removed, the
applicable Issuer Trust may become subject to the reporting obligations under
the Exchange Act. State Street shall have the right under the Junior
Subordinated Indenture to set off any payment made to such holder of Capital
Securities by State Street in connection with a Direct Action.
The holders of the Capital Securities will not be able to exercise directly
any remedies other than those set forth in the preceding paragraph available
to the holders of the Junior Subordinated Debentures unless there shall have
been an event of default under the Trust Agreement. See "Description of
Capital Securities--Events of Default; Notice."
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Junior Subordinated Indenture provides that State Street shall not
consolidate with or merge into any other Person or convey, transfer or lease
its properties and assets substantially as an entirety to any Person, and no
Person shall consolidate with or merge into State Street or convey, transfer
or lease its properties and assets substantially as an entirety to State
Street, unless (i) in case State Street consolidates with or merges into
another Person or conveys or transfers its properties and assets substantially
as an entirety to any Person, the successor Person is organized under the laws
of the United States or any state or the District of Columbia, and such
successor Person expressly assumes State Street's obligations on the Junior
Subordinated Debentures issued under the Junior Subordinated Indenture; (ii)
immediately after giving effect thereto, no Debenture Event of Default, and no
event which, after notice or lapse of time or both, would become a Debenture
Event of Default, shall have occurred and be continuing; (iii) in the case of
Corresponding Junior Subordinated Debentures, such transaction is permitted
under the related Trust Agreement and Guarantee and does not give rise to any
breach or violation of the related Trust Agreement or Guarantee, and (iv)
certain other conditions as prescribed by the Junior Subordinated Indenture
are met.
The general provisions of the Junior Subordinated Indenture do not afford
holders of the Junior Subordinated Debentures protection in the event of a
highly leveraged or other transaction involving State Street that may
adversely affect holders of the Junior Subordinated Debentures.
SATISFACTION AND DISCHARGE
The Junior Subordinated Indenture provides that when, among other things,
all Junior Subordinated Debentures not previously delivered to the Debenture
Trustee for cancellation (i) have become due and payable or (ii) will become
due and payable at their Stated Maturity within one year, and State Street
deposits or causes to be deposited with the Debenture Trustee funds, in trust,
for the purpose and in an amount in the currency or currencies in which the
Junior Subordinated Debentures are payable sufficient to pay and discharge the
entire indebtedness on the Junior Subordinated Debentures not previously
delivered to the Debenture Trustee for cancellation, for the principal (and
premium, if any) and interest to the date of the deposit or to the Stated
Maturity, as the case may be, then the Junior Subordinated Indenture will
cease to be of further effect (except as to State Street's obligations to pay
all other sums due pursuant to the Junior Subordinated Indenture and to
provide the officers' certificates and opinions of counsel described therein),
and State Street will be deemed to have satisfied and discharged the Junior
Subordinated Indenture.
CONVERSION OR EXCHANGE
If and to the extent indicated in the Applicable Prospectus Supplement, the
Junior Subordinated Debentures of any series may be convertible or
exchangeable into Junior Subordinated Debentures of another series or into
Capital Securities of another series. The specific terms on which Junior
Subordinated Debentures of any series may be so converted or exchanged will be
set forth in the
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Applicable Prospectus Supplement. Such terms may include provisions for
conversion or exchange, either mandatory, at the option of the holder, or at
the option of State Street, in which case the number of shares of Capital
Securities or other securities to be received by the holders of Junior
Subordinated Debentures would be calculated as of a time and in the manner
stated in the Applicable Prospectus Supplement.
SUBORDINATION
In the Junior Subordinated Indenture, State Street has covenanted and agreed
that any Junior Subordinated Debentures issued thereunder will be subordinate
and junior in right of payment to all Senior Debt to the extent provided in
the Junior Subordinated Indenture. Upon any payment or distribution of assets
of State Street upon any liquidation, dissolution, winding up, reorganization,
assignment for the benefit of creditors, marshaling of assets or any
bankruptcy, insolvency, debt restructuring or similar proceedings in
connection with any insolvency or bankruptcy proceeding of State Street, the
holders of Senior Debt will first be entitled to receive payment in full of
principal of (and premium, if any) and interest, if any, on such Senior Debt
before the holders of Junior Subordinated Debentures will be entitled to
receive or retain any payment in respect of the principal of (and premium, if
any) or interest, if any, on the Junior Subordinated Debentures; provided,
however, that holders of Senior Debt shall not be entitled to receive payment
of any such amounts to the extent that such holders would be required by the
subordination provisions of such Senior Debt to pay such amounts over to the
obligees on trade accounts payable or other liabilities arising in the
ordinary course of State Street's business.
In the event of the acceleration of the maturity of any Junior Subordinated
Debentures, the holders of all Senior Debt outstanding at the time of such
acceleration will first be entitled to receive payment in full of all amounts
due thereon (including any amounts due upon acceleration thereof) before the
holders of Junior Subordinated Debentures will be entitled to receive or
retain any payment in respect of the principal of (or premium, if any) or
interest, if any, on the Junior Subordinated Debentures; provided, however,
that holders of Senior Debt shall not be entitled to receive payment of any
such amounts to the extent that such holders would be required by the
subordination provisions of such Senior Debt to pay such amounts over to the
obligees on trade accounts payable or other liabilities arising in the
ordinary course of State Street's business.
No payments on accounts of principal (or premium, if any) or interest in
respect of the Junior Subordinated Debentures may be made if there shall have
occurred and be continuing a default in any payment with respect to Senior
Debt or an event of default with respect to any Senior Debt resulting in the
acceleration of the maturity thereof, or if any judicial proceeding shall be
pending with respect to any such default.
"Debt" means with respect to any Person, whether recourse is to all or a
portion of the assets of such Person and whether or not contingent, (i) every
obligation of such Person for money borrowed; (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities
issued for the account of such Person; (iv) every obligation of such Person
issued or assumed as the deferred purchase price of property or services (but
excluding trade accounts payable or accrued liabilities arising in the
ordinary course of business); (v) every capital lease obligation of such
Person; (vi) every obligation of such Person for claims in respect of
derivative products such as interest and foreign exchange rate contracts,
commodity contracts and similar arrangements; and (vii) every obligation of
the type referred to in clauses (i) through (vi) of another Person and all
dividends of another Person the payment of which, in either case, such Person
has guaranteed or is responsible or liable for, directly or indirectly, as
obligor or otherwise.
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"Senior Debt" means the principal of (and premium, if any) and interest, if
any (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to State Street whether or not such
claim for post-petition interest is allowed in such proceeding), on Debt,
whether incurred on or prior to the date of the Junior Subordinated Indenture
or thereafter incurred, unless, in the instrument creating or evidencing the
same or pursuant to which the same is outstanding, it is provided that such
obligations are not superior in right of payment to the Junior Subordinated
Debentures or to other Debt which is pari passu with, or subordinated to, the
Junior Subordinated Debentures; provided, however, that Senior Debt shall not
be deemed to include (i) any Debt of State Street which when incurred and
without respect to any election under Section 1111(b) of the United States
Bankruptcy Code of 1978, as amended, was without recourse to State Street,
(ii) any Debt of State Street to any of its subsidiaries, (iii) Debt to any
employee of State Street, (iv) Debt which by its terms is subordinated to
trade accounts payable or accrued liabilities arising in the ordinary course
of business to the extent that payments made to the holders of such Debt by
the holders of the Junior Subordinated Debentures as a result of the
subordination provisions of the Junior Subordinated Indenture would be greater
than such payments otherwise would have been as a result of any obligation of
such holders of such Debt to pay amounts over to the obligees on such trade
accounts payable or accrued liabilities arising in the ordinary course of
business as a result of subordination provisions to which such Debt is
subject, and (v) any other debt securities issued pursuant to the Junior
Subordinated Indenture.
The Junior Subordinated Indenture places no limitation on the amount of
Senior Debt that may be incurred by State Street. State Street expects from
time to time to incur additional indebtedness and other obligations
constituting Senior Debt.
The Junior Subordinated Indenture provides that the foregoing subordination
provisions, insofar as they relate to any particular issue of Junior
Subordinated Debentures, may be changed prior to such issuance. Any such
change would be described in the Applicable Prospectus Supplement.
GOVERNING LAW
The Junior Subordinated Indenture is, and the Junior Subordinated Debentures
will be, governed by and construed in accordance with the laws of the State of
New York.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The Debenture Trustee shall have and be subject to all the duties and
responsibilities specified with respect to an indenture trustee under the
Trust Indenture Act. Subject to such provisions, the Debenture Trustee is
under no obligation to exercise any of the powers vested in it by the Junior
Subordinated Indenture at the request of any holder of Junior Subordinated
Debentures, unless offered reasonable indemnity by such holder against the
costs, expenses and liabilities which might be incurred thereby. The Debenture
Trustee is not required to expend or risk its own funds or otherwise incur
personal financial liability in the performance of its duties if the Debenture
Trustee reasonably believes that repayment or adequate indemnity is not
reasonably assured to it.
CORRESPONDING JUNIOR SUBORDINATED DEBENTURES
The Corresponding Junior Subordinated Debentures may be issued in one or
more series of Junior Subordinated Debentures under the Junior Subordinated
Indenture with terms corresponding to the terms of a series of Related Capital
Securities. In that event, concurrently with the issuance of each Issuer
Trust's Capital Securities, such Issuer Trust will invest the proceeds thereof
and the consideration paid by State Street for the Common Securities of such
Issuer Trust in such series of Corresponding Junior Subordinated Debentures
issued by State Street to such Issuer Trust. Each
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series of Corresponding Junior Subordinated Debentures will be in the
principal amount equal to the aggregate stated Liquidation Amount of the
Related Capital Securities and the Common Securities of such Issuer Trust and
will rank pari passu with all other series of Junior Subordinated Debentures.
Holders of the Related Capital Securities for a series of Corresponding Junior
Subordinated Debentures will have the rights, in connection with modifications
to the Junior Subordinated Indenture or upon occurrence of Debenture Events of
Default, as described under "--Modification of Indenture," "--Debenture Events
of Default" and "--Enforcement of Certain Rights by Holders of Capital
Securities," unless provided otherwise in the Prospectus Supplement for such
Related Capital Securities.
Unless otherwise specified in the Applicable Prospectus Supplement, if a Tax
Event in respect of an Issuer Trust shall occur and be continuing, State
Street may, at its option and subject to prior approval of the Federal Reserve
if then so required under applicable capital guidelines or policies, redeem
the Corresponding Junior Subordinated Debentures at any time within 90 days of
the occurrence of such Tax Event, in whole but not in part, subject to the
provisions of the Junior Subordinated Indenture and whether or not such
Corresponding Junior Subordinated Debentures are then otherwise redeemable at
the option of State Street. The redemption price for any Corresponding Junior
Subordinated Debentures shall be equal to 100% of the principal amount of such
Corresponding Junior Subordinated Debentures then outstanding plus accrued and
unpaid interest to the date fixed for redemption. For so long as the
applicable Issuer Trust is the holder of all the outstanding Corresponding
Junior Subordinated Debentures of such series, the proceeds of any such
redemption will be used by the Issuer Trust to redeem the corresponding Trust
Securities in accordance with their terms. State Street may not redeem a
series of Corresponding Junior Subordinated Debentures in part unless all
accrued and unpaid interest has been paid in full on all outstanding
Corresponding Junior Subordinated Debentures of such series for all interest
proceeds terminating on or prior to the Redemption Date.
State Street will covenant, as to each series of Corresponding Junior
Subordinated Debentures, (i) to maintain directly or indirectly 100% ownership
of the Common Securities of the Issuer Trust to which such Corresponding
Junior Subordinated Debentures have been issued, provided that certain
successors which are permitted pursuant to the Junior Subordinated Indenture
may succeed to State Street's ownership of Common Securities, (ii) not to
voluntarily terminate, wind up or liquidate any Issuer Trust, except (a) in
connection with a distribution of Corresponding Junior Subordinated Debentures
to the holders of the Capital Securities in exchange therefor upon liquidation
of such Issuer Trust, or (b) in connection with certain mergers,
consolidations or amalgamations permitted by the related Trust Agreement, in
either such case, if so specified in the Applicable Prospectus Supplement upon
prior approval of the Federal Reserve if then so required under applicable
capital guidelines or policies, and (iii) to use its reasonable efforts,
consistent with the terms and provisions of the related Trust Agreement, to
cause such Issuer Trust to remain classified as a grantor trust and not as an
association taxable as a corporation for United States federal income tax
purposes.
DESCRIPTION OF CAPITAL SECURITIES
Each Issuer Trust will issue Capital Securities and Common Securities
pursuant to the terms of the Trust Agreement for such Issuer Trust. The First
National Bank of Chicago, as Property Trustee, will act as indenture trustee
under each Trust Agreement for purposes of compliance with the Trust Indenture
Act, and each Trust Agreement will be qualified as an indenture under the
Trust Indenture Act. The Capital Securities of a particular issue will
represent beneficial ownership interests in the Issuer Trust and the holders
thereof will be entitled to a preference in certain circumstances with respect
to Distributions and amounts payable on redemption or liquidation over the
Common Securities of such Issuer Trust, as well as other benefits as described
in the corresponding Trust
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Agreement. This summary of certain provisions of the Capital Securities and
each Trust Agreement, which summarizes the material terms thereof, does not
purport to be complete and is subject to, and is qualified in its entirety by
reference to, all the provisions of each Trust Agreement, including the
definitions therein of certain terms, and the Trust Indenture Act, reference
to each of which is hereby made. Wherever particular defined terms of a Trust
Agreement (as amended or supplemented from time to time) are referred to
herein or in a Prospectus Supplement, such terms are incorporated herein or
therein by reference. The form of the Trust Agreement has been filed as an
exhibit to the Registration Statement of which this Prospectus forms a part.
Each of the Issuer Trusts is a legally separate entity and the assets of one
are not available to satisfy the obligations of any of the others or of any
other statutory business trust whose Common Securities are owned by State
Street.
GENERAL
The Capital Securities of an Issuer Trust will rank pari passu, and payments
will be made thereon pro rata, with the Common Securities of that Issuer Trust
except as described under "--Subordination of Common Securities." Legal title
to the Corresponding Junior Subordinated Debentures will be held by the
Property Trustee in trust for the benefit of the holders of the related
Capital Securities and Common Securities. Each Guarantee Agreement executed by
State Street for the benefit of the holders of an Issuer Trust's Trust
Securities (a "Guarantee") will be a guarantee on a subordinated basis with
respect to the related Trust Securities but will not guarantee payment of
Distributions or amounts payable on redemption or liquidation of such Trust
Securities when the related Issuer Trust does not have funds on hand available
to make such payments. See "Descriptions of Guarantees."
DISTRIBUTIONS
Distributions on the Capital Securities will be cumulative, will accumulate
from the date of original issuance and will be payable on such dates as
specified in the Applicable Prospectus Supplement. In the event that any date
on which Distributions are payable on the Capital Securities is not a Business
Day (as defined below), payment of the Distribution 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 to any such delay) except that, if such
Business Day is in the next succeeding calendar year, payment of such
Distribution shall be made on the immediately preceding Business Day, in
either case with the same force and effect as if made on such date (each date
on which Distributions are payable in accordance with the foregoing, a
"Distribution Date"). A "Business Day" shall mean any day other than a
Saturday or a Sunday, or a day on which banking institutions in The City of
New York are authorized or required by law or executive order to remain closed
or a day on which the corporate trust office of the Property Trustee or the
Debenture Trust is closed for business.
Each Issuer Trust's Capital Securities represent beneficial ownership
interests in the applicable Issuer Trust, and the Distributions on each
Capital Security will by payable at a rate specified in the Applicable
Prospectus Supplement for such Capital Securities. The amount of Distributions
payable for any period will be computed on the basis of a 360-day year of
twelve 30-day months unless otherwise specified in the Applicable Prospectus
Supplement. Distributions to which holders of Capital Securities are entitled
will accumulate additional Distributions at the rate per annum if and as
specified in the Applicable Prospectus Supplement. The term "Distributions" as
used herein includes any such additional Distributions unless otherwise
stated.
If provided in the Applicable Prospectus Supplement, State Street has the
right under the Junior Subordinated Indenture, pursuant to which it will issue
the Corresponding Junior Subordinated Debentures, to defer the payment of
interest at any time or from time to time on any series of the Corresponding
Junior Subordinated Debentures for up to such number of consecutive interest
payment periods which will be specified in such Prospectus Supplement relating
to such series (each,
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an "Extension Period"), provided, that no Extension Period may extend beyond
the Stated Maturity of the Corresponding Junior Subordinated Debentures. As a
consequence of any such deferral, Distributions on the Related Capital
Securities would be deferred (but would continue to accumulate additional
Distributions thereon at the rate per annum set forth in the Prospectus
Supplement for such Capital Securities) by the Issuer Trust of such Capital
Securities during any such Extension Period. During any Extension Period,
State Street may not (i) make any payment of principal of or interest or
premium, if any, on or repay, repurchase or redeem any debt securities of
State Street that rank pari passu in all respects with or junior in interest
to the Junior Subordinated Debentures of such series, or (ii) declare or pay
any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any shares of State Street's capital
stock (other than (a) repurchases, redemptions or other acquisitions of shares
of capital stock of State Street in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of any one
or more employees, officers, directors or consultants, in connection with a
dividend reinvestment or stockholder stock purchase plan or in connection with
the issuance of capital stock of State Street (or securities convertible into
or exercisable for such capital stock) as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, (b) as a
result of an exchange or conversion of any class or series of State Street's
capital stock (or any capital stock of a Subsidiary of State Street) for any
class or series of State Street's capital stock or of any class or series of
State Street's indebtedness for any class or series of State Street's capital
stock, (c) the purchase of fractional interests in shares of State Street's
capital stock pursuant to the conversion or exchange provisions of such
capital stock or the securities being converted or exchanged, (d) any
declaration of a dividend in connection with any rights plan, or the issuance
of rights, stock or other property under any rights plan, or the redemption or
repurchase of rights pursuant thereto, or (e) any dividend in the form of
stock, warrants, options or other rights where the dividend stock or the stock
issuable upon exercise of such warrants, options or other rights is the same
stock as that on which the dividend is being paid or ranks pari passu with or
junior to such stock).
The revenue of each Issuer Trust available for distribution to holders of
its Capital Securities will be limited to payments under the Corresponding
Junior Subordinated Debentures in which the Issuer Trust will invest the
proceeds from the issuance and sale of its Trust Securities. See "Description
of Junior Subordinated Debentures--Corresponding Junior Subordinated
Debentures." If State Street does not make interest payments on such
Corresponding Junior Subordinated Debentures, the Property Trustee will not
have funds available to pay Distributions on the Related Capital Securities.
The payment of Distributions (if and to the extent the Issuer Trust has funds
legally available for the payment of such Distributions and cash sufficient to
make such payments) is guaranteed by State Street on the basis set forth
herein under "Description of Guarantees."
Distributions on the Capital Securities will be payable to the holders
thereof as they appear on the register of such Issuer Trust on the relevant
record dates, which, as long as the Capital Securities remain in book-entry
form, will be one Business Day prior to the relevant Distribution Date.
Subject to any applicable laws and regulations and the provisions of the
applicable Trust Agreement, each such payment will be made as described under
"Book-Entry Issuance." In the event any Capital Securities are not in book-
entry form, the relevant record date for such Capital Securities shall be the
date at least 15 days prior to the relevant Distribution Date, as specified in
the Applicable Prospectus Supplement.
REDEMPTION OR EXCHANGE
Mandatory Redemption. Upon the repayment or redemption, in whole or in part,
of any Corresponding Junior Subordinated Debentures, whether at maturity or
upon earlier redemption as provided in the Junior Subordinated Indenture, the
proceeds from such repayment or redemption shall be applied by the Property
Trustee to redeem a Like Amount (as defined below) of the Trust
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Securities, upon not less than 30 nor more than 60 days' notice, at a
redemption price (the "Redemption Price") equal to the aggregate Liquidation
Amount of such Trust Securities plus accumulated but unpaid Distributions
thereon to the date of redemption (the "Redemption Date") and the related
amount of the premium, if any, paid by State Street upon the concurrent
redemption of such Corresponding Junior Subordinated Debentures. See
"Description of Junior Subordinated Debentures--Redemption." If less than all
of any series of Corresponding Junior Subordinated Debentures are to be repaid
or redeemed on a Redemption Date, then the proceeds from such repayment or
redemption shall be allocated to the redemption pro rata of the Related
Capital Securities and the Common Securities. The amount of premium, if any,
paid by State Street upon the redemption of all or any part of any series of
any Corresponding Junior Subordinated Debentures to be repaid or redeemed on a
Redemption Date shall be allocated to the redemption pro rata of the Related
Capital Securities and the Common Securities.
State Street will have the right to redeem any series of Corresponding
Junior Subordinated Debentures (i) on or after such date as may be specified
in the Applicable Prospectus Supplement, in whole at any time or in part from
time to time, or (ii) at any time, in whole (but not in part), upon the
occurrence of a Tax Event, Investment Company Event or Capital Treatment
Event, in either case subject to receipt of prior approval by the Federal
Reserve if then required under applicable capital guidelines or policies. See
"Description of Junior Subordinated Debentures--Redemption."
If a Tax Event, Investment Company Event or Capital Treatment Event in
respect of a series of Capital Securities and Common Securities shall occur
and be continuing, State Street shall have the right to redeem the
Corresponding Junior Subordinated Debentures in whole (but not in part) and
thereby cause a mandatory redemption of such Capital Securities and Common
Securities in whole (but not in part) at the Redemption Price within 90 days
following the occurrence of such Tax Event, Investment Company Event or
Capital Treatment Event. In the event a Tax Event, Investment Company Event or
Capital Treatment Event in respect of a series of Capital Securities and
Common Securities has occurred and is continuing and State Street does not
elect to redeem the Corresponding Junior Subordinated Debentures and thereby
cause a mandatory redemption of such Capital Securities and Common Securities
or to dissolve the related Issuer Trust and cause the Corresponding Junior
Subordinated Debentures to be distributed to holders of such Capital
Securities and Common Securities in exchange therefor upon liquidation of the
Issuer Trust as described below, such Capital Securities will remain
outstanding.
"Like Amount" means (i) with respect to a redemption of any series of Trust
Securities, Trust Securities of such series having a Liquidation Amount (as
defined below) equal to that portion of the principal amount of Corresponding
Junior Subordinated Debentures to be contemporaneously redeemed in accordance
with the Junior Subordinated Indenture, the proceeds of which will be used to
pay the Redemption Price of such Trust Securities, and (ii) with respect to a
distribution of Corresponding Junior Subordinated Debentures to holders of any
series of Trust Securities in exchange therefor in connection with a
dissolution or liquidation of the related Issuer Trust, Corresponding Junior
Subordinated Debentures having a principal amount equal to the Liquidation
Amount of the Trust Securities of the holder to whom such Corresponding Junior
Subordinated Debentures would be distributed.
"Liquidation Amount" means the stated amount per Trust Security as set forth
in the Applicable Prospectus Supplement.
Distribution of Corresponding Junior Subordinated Debentures. Subject to
State Street's having received prior approval of the Federal Reserve to do so
if then required under applicable capital guidelines or policies, State Street
has the right at any time to dissolve any Issuer Trust and, after satisfaction
of the liabilities of creditors of such Issuer Trust as provided by applicable
law, cause such Corresponding Junior Subordinated Debentures in respect of the
Related Capital Securities and
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Common Securities issued by such Issuer Trust to be distributed to the holders
of such Related Capital Securities and Common Securities in exchange therefor
upon liquidation of such Issuer Trust.
After the liquidation date fixed for any distribution of Corresponding
Junior Subordinated Debentures for any series of Capital Securities (i) such
series of Capital Securities will no longer be deemed to be outstanding, (ii)
the depositary or its nominee, as the record holder of such series of Capital
Securities, will receive a registered global certificate or certificates
representing the Corresponding Junior Subordinated Debentures to be delivered
upon such distribution and (iii) any certificates representing such series of
Capital Securities not held by The Depository Trust Company ("DTC") or its
nominee will be deemed to represent the Corresponding Junior Subordinated
Debentures having a principal amount equal to the stated Liquidation Amount of
such series of Capital Securities, and bearing accrued and unpaid interest in
an amount equal to the accrued and unpaid Distributions on such series of
Capital Securities until such certificates are presented to the Administrative
Trustees or their agent for transfer or reissuance.
There can be no assurance as to the market prices for the Capital Securities
or the Corresponding Junior Subordinated Debentures that may be distributed in
exchange for Capital Securities if a dissolution and liquidation of an Issuer
Trust were to occur. Accordingly, the Capital Securities that an investor may
purchase, or the Corresponding Junior Subordinated Debentures that the
investor may receive on dissolution and liquidation of an Issuer Trust, may
trade at a discount to the price that the investor paid to purchase the
Capital Securities offered hereby.
REDEMPTION PROCEDURES
Capital Securities redeemed on each Redemption Date shall be redeemed at the
Redemption Price with the applicable proceeds from the contemporaneous
redemption of the Corresponding Junior Subordinated Debentures. Redemptions of
the Capital Securities shall be made and the Redemption Price shall be payable
on each Redemption Date only to the extent that the related Issuer Trust has
funds on hand available for the payment of such Redemption Price. See also "--
Subordination of Common Securities."
If an Issuer Trust gives a notice of redemption in respect of its Capital
Securities, then, by 12:00 noon, New York City time, on the Redemption Date,
to the extent funds are available, the Property Trustee will deposit
irrevocably with DTC funds sufficient to pay the applicable Redemption Price
and will give DTC irrevocable instructions and authority to pay the Redemption
Price to the Holders of such Capital Securities. See "Book-Entry Issuance." If
such Capital Securities are no longer in book-entry form, the Property
Trustee, to the extent funds are available, will irrevocably deposit with the
paying agent for such Capital Securities funds sufficient to pay the
applicable Redemption Price and will give such paying agent irrevocable
instructions and authority to pay the Redemption Price to the holders thereof
upon surrender of their certificates evidencing such Capital Securities.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Capital Securities called for redemption shall be
payable to the holders of such Capital Securities on the relevant record dates
for the related Distribution Dates. If notice of redemption shall have been
given and funds deposited as required, then upon the date of such deposit, all
rights of the holders of such Capital Securities so called for redemption will
cease, except the right of the holders of such Capital Securities to receive
the Redemption Price, but without interest on such Redemption Price, and such
Capital Securities will cease to be outstanding. In the event that any date
fixed for redemption of Capital Securities is not a Business Day, then payment
of the Redemption Price payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or any other
payment in respect of any such delay), except that, if such Business Day falls
in the next calendar year, such payment will be made on the immediately
preceding Business Day. In the event that payment of the Redemption Price in
respect of Capital Securities called for redemption is improperly withheld or
refused and not paid either by the Issuer Trust or by State Street
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pursuant to the relevant Guarantee as described under "Description of
Guarantees," Distributions on such Capital Securities will continue to accrue
at the then applicable rate, from the Redemption Date originally established
by the Issuer Trust for such Capital Securities to the date such Redemption
Price is actually paid, in which case the actual payment date will be the date
fixed for redemption for purposes of calculating the Redemption Price.
Subject to applicable law (including, without limitation, United States
federal securities law), State Street or its subsidiaries may at any time and
from time to time purchase outstanding Capital Securities by tender, in the
open market or by private agreement.
Payment of the Redemption Price on the Capital Securities and any
distribution of Corresponding Junior Subordinated Debentures to holders of
Capital Securities shall be made to the applicable recordholders thereof as
they appear on the register for such Capital Securities on the relevant record
date, which shall be one Business Day prior to the relevant Redemption Date or
liquidation date, as applicable; provided, however, that in the event that any
Capital Securities are not in book-entry form, the relevant record date for
such Capital Securities shall be a date at least 15 days prior to the
Redemption Date or liquidation date, as applicable, as specified in the
Applicable Prospectus Supplement.
If less than all of the Capital Securities and Common Securities issued by
an Issuer Trust are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of such Capital Securities and Common Securities to be
redeemed shall be allocated pro rata to the Capital Securities and the Common
Securities based upon the relative Liquidation Amounts of such classes. The
particular Capital Securities to be redeemed shall be selected on a pro rata
basis not more than 60 days prior to the Redemption Date by the Property
Trustee from the outstanding Capital Securities not previously called for
redemption, by such method as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
of the Liquidation Amount of Capital Securities in such minimum amounts as
shall be specified in the Applicable Prospectus Supplement. The Property
Trustee shall promptly notify the trust registrar in writing of the Capital
Securities selected for redemption and, in the case of any Capital Securities
selected for redemption, the Liquidation Amount thereof to be redeemed. For
all purposes of each Trust Agreement, unless the context otherwise requires,
all provisions relating to the redemption of Capital Securities shall relate,
in the case of any Capital Securities redeemed or to be redeemed only in part,
to the portion of the aggregate Liquidation Amount of Capital Securities which
has been or is to be redeemed.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each holder of Trust Securities to be
redeemed at its registered address.
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and the Redemption Price of, each Issuer
Trust's Capital Securities and Common Securities, as applicable, shall be made
pro rata based on the Liquidation Amount of such Capital Securities and Common
Securities; provided, however, that if on any Distribution Date or Redemption
Date a Debenture Event of Default shall have occurred and be continuing, no
payment of any Distribution on, or Redemption Price of, any of the Issuer
Trust's Common Securities, and no other payment on account of the redemption,
liquidation or other acquisition of such Common Securities, shall be made
unless payment in full in cash of all accumulated and unpaid Distributions on
all of the Issuer Trust's outstanding Capital Securities for all Distribution
periods terminating on or prior thereto, or in the case of payment of the
Redemption Price the full amount of such Redemption Price on all of the Issuer
Trust's outstanding Capital Securities then called for redemption, shall have
been made or provided for, and all funds available to the Property Trustee
shall first be applied to the payment in full in cash of all Distributions on,
or Redemption Price of, the Issuer Trust's Capital Securities then due and
payable.
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In the case of any event of default under the applicable Trust Agreement
resulting from a Debenture Event of Default, State Street as holder of such
Issuer Trust's Common Securities will be deemed to have waived any right to
act with respect to any such event of default under the applicable Trust
Agreement until the effect of all such events of default with respect to such
Capital Securities have been cured, waived or otherwise eliminated. Until all
events of default under applicable Trust Agreement with respect to the Capital
Securities have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the holders of such Capital Securities
and not behalf of State Street as holder of the Issuer Trust's Common
Securities, and only the holders of such Capital Securities will have the
right to direct the Property Trustee to act on their behalf.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
Pursuant to each Trust Agreement, each Issuer Trust shall automatically
dissolve upon expiration of its term and shall dissolve on the first to occur
of: (i) certain events of bankruptcy, dissolution or liquidation of State
Street; (ii) the distribution of a Like Amount of the Corresponding Junior
Subordinated Debentures to the holders of its Trust Securities, if State
Street, as Depositor, has given written direction to the Property Trustee to
dissolve such Issuer Trust (subject to State Street having received prior
approval of the Federal Reserve if so required under applicable capital
guidelines or policies); (iii) redemption of all of the Issuer Trust's Capital
Securities as described under "--Redemption or Exchange--Mandatory
Redemption;" and (iv) the entry of an order for the dissolution of the Issuer
Trust by a court of competent jurisdiction.
If an early dissolution occurs as described in clause (i), (ii) or (iv)
above, the Issuer Trust shall be liquidated by the Issuer Trustees as
expeditiously as the Issuer Trustees determine to be possible by distributing,
after satisfaction of liabilities to creditors of such Issuer Trust as
provided by applicable law, to the holders of such Trust Securities in
exchange therefor a Like Amount of the Corresponding Junior Subordinated
Debentures, unless such distribution is determined by the Property Trustee not
to be practical, in which event such holders will be entitled to receive out
of the assets of the Issuer Trust available for distribution to holders, after
satisfaction of liabilities to creditors of such Issuer Trust as provided by
applicable law, an amount equal to, in the case of holders of Capital
Securities, the aggregate Liquidation Amount plus accrued and unpaid
Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If such Liquidation Distribution can be paid only
in part because such Issuer Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then the amounts payable directly
by such Issuer Trust on its Capital Securities shall be paid on a pro rata
basis. The holder(s) of such Issuer Trust's Common Securities will be entitled
to receive distributions upon any such liquidation pro rata with the holders
of its Capital Securities, except that if a Debenture Event of Default has
occurred and is continuing, the Capital Securities shall have a priority over
the Common Securities.
EVENTS OF DEFAULT; NOTICE
Any one of the following events shall constitute an "Event of Default" under
the Trust Agreement of an Issuer Trust (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(i) the occurrence of a Debenture Event of Default with respect to the
Corresponding Junior Subordinated Debentures held by such Issuer Trust (see
"Description of Junior Subordinated Debentures--Debenture Events of
Default"); or
(ii) the default by the Property Trustee in the payment of any
Distribution on any Trust Security of such Issuer Trust when such becomes
due and payable, and continuation of such default for a period of 30 days;
or
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(iii) the default by the Property Trustee in the payment of any
Redemption Price of any Trust Security of such Issuer Trust when such
becomes due and payable; or
(iv) the default in the performance, or breach, in any material respect,
of any covenant or warranty of the Issuer Trustees in such Trust Agreement
(other than a covenant or warranty of default in the performance of which
or the breach of which is dealt with in clause (ii) or (iii) above), and
continuation of such default or breach for a period of 90 days after there
has been given, by registered or certified mail, to the defaulting Issuer
Trustee or Trustees by the holders of at least 25% in aggregate Liquidation
Amount of the outstanding Capital Securities of the applicable Issuer
Trust, a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default" under
such Trust Agreement; or
(v) the occurrence of certain events of bankruptcy or insolvency with
respect to the Property Trustee and the failure by State Street to appoint
a successor Property Trustee within 90 days thereof.
Within the ninety days after the occurrence of any Event of Default actually
known to the Property Trustee, the Property Trustee shall transmit notice of
such Event of Default to the holders of such Issuer Trust's Capital
Securities, the Administrative Trustees and State Street, as Depositor, unless
such Event of Default shall have been cured or waived. State Street, as
Depositor, and the Administrative Trustees are required to file annually with
the Property Trustee a certificate as to whether or not they are in compliance
with all the conditions and covenants applicable to them under each Trust
Agreement.
If a Debenture Event of Default with respect to the Corresponding Junior
Subordinated Debentures held by an Issuer Trust has occurred and is
continuing, the Capital Securities of such Issuer Trust shall have a
preference over such Issuer Trust's Common Securities as described above. See
"--Subordination of Common Securities" and "--Liquidation Distribution Upon
Termination." The existence of an Event of Default does not entitle the
holders of Capital Securities to accelerate the maturity thereof.
REMOVAL OF ISSUER TRUSTEES
Unless a Debenture Event of Default shall have occurred and be continuing,
any Issuer Trustee may be removed at any time by the holder of the Common
Securities. If a Debenture Event of Default has occurred and is continuing,
the Property Trustee and the Delaware Trustee may be removed at such time by
the holders of a majority in Liquidation Amount of the outstanding Capital
Securities. In no event will the holders of the Capital Securities have the
right to vote to appoint, remove or replace the Administrative Trustees, which
voting rights are vested exclusively in State Street as the holder of the
Common Securities. No resignation or removal of an Issuer Trustee and no
appointment of a successor trustee shall be effective until the acceptance of
appointment by the successor trustee in accordance with the provisions of the
applicable Trust Agreement.
CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE
Unless an Event of Default shall have occurred and be continuing, at any
time or from time to time, for the purpose of meeting the legal requirements
of the Trust Indenture Act or of any jurisdiction in which any part of the
Trust Property may at the time be located, State Street, as the holder of the
Common Securities, and the Administrative Trustees shall have the power to
appoint one or more persons either to act as a co-trustee, jointly with the
Property Trustee, of all or any part of such Trust Property, or to act as
separate trustee of any such property, in either case with such powers as may
be provided in the instrument of appointment, and to vest in such person or
persons in such capacity any property, title, right or power deemed necessary
or desirable, subject to the provisions of the
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applicable Trust Agreement. In case a Debenture Event of Default has occurred
and is continuing, the Property Trustee alone shall have power to make such
appointment.
MERGER OR CONSOLIDATION OF ISSUER TRUSTEES
Any Person into which the Property Trustee, the Delaware Trustee or any
Administrative Trustee that is not a natural person may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Trustee shall be a party, or any
Person succeeding to all or substantially all the corporate trust business of
such Trustee, shall be the successor of such Trustee under each Trust
Agreement, provided such Person shall be otherwise qualified and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE ISSUER TRUSTS
An Issuer Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any State Street or other Person, except as
described below or as otherwise described in the Trust Agreement. An Issuer
Trust may, at the request of State Street, with the consent of the
Administrative Trustees and without the consent of the holders of the Capital
Securities, the Property Trustee or the Delaware Trustee, merge with or into,
consolidate, amalgamate, or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to, a trust organized as
such under the laws of any State; provided, that (i) such successor entity
either (a) expressly assumes all of the obligations of such Issuer Trust with
respect to the Capital Securities or (b) substitutes for the Capital
Securities other securities having substantially the same terms as the Capital
Securities (the "Successor Securities") so long as the Successor Securities
rank the same as the Capital Securities in priority with respect to
distributions and payments upon liquidation, redemption and otherwise, (ii)
State Street expressly appoints a trustee of such successor entity possessing
the same powers and duties as the Property Trustee as the holder of the
Corresponding Junior Subordinated Debentures, (iii) the Successor Securities
are listed, or any Successor Securities will be listed upon notification of
issuance, on any national securities exchange or other organization on which
the Capital Securities are then listed, if any, (iv) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does
not cause the Capital Securities to be downgraded by any nationally recognized
statistical rating organization, (v) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the holders of the Capital Securities
(including any Successor Securities) in any material respect, (vi) such
successor entity has a purpose substantially identical to that of the Issuer
Trust, (vii) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, State Street has received an opinion from
independent counsel to the Issuer Trust experienced in such matters to the
effect that (a) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the Capital Securities (including
any Successor Securities) in any material respect, and (b) following such
merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease, neither the Issuer Trust nor such successor entity will be required to
register as an investment company under the Investment Company Act of 1940, as
amended (the "Investment Company Act") and (viii) State Street or any
permitted successor or assignee owns all of the Common Securities of such
successor entity and guarantees the obligations of such successor entity under
the Successor Securities at least to the extent provided by the Guarantee.
Notwithstanding the foregoing, an Issuer Trust shall not, except with the
consent of holders of 100% in Liquidation Amount of the Capital Securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to
any other entity or permit any other entity to consolidate, amalgamate, merge
with or into, or replace it if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Issuer Trust or the
successor entity to be classified as other than a grantor trust for United
States federal income tax purposes.
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VOTING RIGHTS; AMENDMENT OF EACH TRUST AGREEMENT
Except as provided below and under "Description of Guarantees--Amendments
and Assignment" and as otherwise required by law and the applicable Trust
Agreement, the holders of the Capital Securities will have no voting rights.
Each Trust Agreement may be amended from time to time by State Street and
the Administrative Trustees, without the consent of the holders of the Capital
Securities (i) to cure any ambiguity, correct or supplement any provisions in
such Trust Agreement that may be inconsistent with any other provision, or to
make any other provisions with respect to matters or questions arising under
such Trust Agreement, which shall not be inconsistent with the other
provisions of such Trust Agreement, or (ii) to modify, eliminate or add to any
provisions of such Trust Agreement to such extent as shall be necessary to
ensure that the Issuer Trust will be classified for United States federal
income tax purposes as a grantor trust at all times that any Trust Securities
are outstanding or to ensure that the Issuer Trust will not be required to
register as an "investment company" under the Investment Company Act;
provided, however, that in the case of either clause (i) or clause (ii), such
action shall not adversely affect in any material respect the interests of any
holder of Capital Securities, and any such amendments of such Trust Agreement
shall become effective when notice thereof is given to the holders of Trust
Securities. Each Trust Agreement may be amended by the Administrative
Trustees, the Property Trustee and State Street with (i) the consent of
holders representing not less than a majority (based upon Liquidation Amounts)
of the outstanding Trust Securities, and (ii) receipt by the Issuer Trustees
of an opinion of counsel to the effect that such amendment or the exercise of
any power granted to the Issuer Trustees in accordance with such amendment
will not affect the Issuer Trust's status as a grantor trust for United States
federal income tax purposes or the Issuer Trust's exemption from status as an
"investment company" under the Investment Company Act, provided that without
the consent of each holder of Trust Securities, such Trust Agreement may not
be amended to (i) change the amount or timing of any Distribution required to
be made in respect of the Trust Securities as of a specified dates or (ii)
restrict the right of a holder of Trust Securities to institute suit for the
enforcement of any such payment on or after such date.
So long as any Corresponding Junior Subordinated Debentures are held by the
Property Trustee, the Issuer Trustees shall not (i) direct the time, method
and place of conducting any proceeding for any remedy available to the
Debenture Trustee, or executing any trust or power conferred on the Property
Trustee with respect to such Corresponding Junior Subordinated Debentures,
(ii) waive any past default that is waivable under the Indenture, (iii)
exercise any right to rescind or annul a declaration that the principal of all
the corresponding Junior Subordinated Debentures shall be due and payable or
(iv) consent to any amendment, modification or termination of the Junior
Subordinated Indenture or such Corresponding Junior Subordinated Debentures,
where such consent shall be required, without, in each case, obtaining the
prior approval of the holders of a majority in aggregate Liquidation Amount of
all outstanding Capital Securities; provided, however, that where a consent
under the Junior Subordinated Indenture would require the consent of each
holder of Corresponding Junior Subordinated Debentures affected thereby, no
such consent shall be given by the Property Trustee without the prior consent
of each holder of the corresponding Capital Securities. The Issuer Trustees
shall not revoke any action previously authorized or approved by a vote of the
holders of the Capital Securities except by subsequent vote of the holders of
the Capital Securities. The Property Trustee shall notify each holder of the
Capital Securities of any notice of default with respect to the Corresponding
Junior Subordinated Debentures. In addition to obtaining the foregoing
approvals of the holders of the Capital Securities, prior to taking any of the
foregoing actions, the Issuer Trustees shall obtain an opinion of counsel
experienced in such matters to the effect that such action would not cause the
Issuer Trust to be classified as other than a grantor trust for United States
federal income tax purposes.
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Any required approval of holders of Capital Securities may be given at a
meeting of holders of Capital Securities convened for such purpose or pursuant
to written consent. The Property Trustee will cause a notice of any meeting at
which holders of Capital Securities are entitled to vote, or of any matter
upon which action by written consent of such holders is to be taken, to be
given to each holder of record of Capital Securities in the manner set forth
in each Trust Agreement.
No vote or consent of the holders of Capital Securities will be required for
an Issuer Trust to redeem and cancel its Capital Securities in accordance with
the applicable Trust Agreement.
Notwithstanding that holders of Capital Securities are entitled to vote or
consent under any of the circumstances described above, any of the Capital
Securities that are owned by State Street, the Issuer Trustees or any
affiliate of State Street or any Issuer Trustees, shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
PAYMENT AND PAYING AGENCY
Payments in respect of the Capital Securities shall be made to the
Depositary, which shall credit the relevant accounts at the Depositary on the
applicable Distribution Dates or, if any Issuer Trust's Capital Securities are
not held by the Depositary, such payments shall be made by check mailed to the
address of the holder entitled thereto as such address shall appear on the
Register. Unless otherwise specified in the Applicable Prospectus Supplement,
the paying agent (the "Paying Agent") shall initially be the Property Trustee
and any co-paying agent chosen by the Property Trustee and acceptable to the
Administrative Trustees and State Street. The Paying Agent shall be permitted
to resign as Paying Agent upon 30 days' written notice to the Property Trustee
and State Street. In the event that the Property Trustee shall no longer be
the Paying Agent, the Administers shall appoint a successor (which shall be a
bank or trust company acceptable to the Administrative Trustees and State
Street) to act as Paying Agent.
REGISTRAR AND TRANSFER AGENT
Unless otherwise specified in the Applicable Prospectus Supplement, the
Property Trustee will act as registrar and transfer agent for the Capital
Securities.
Registration of transfers of Capital Securities will be effected without
charge by or on behalf of each Issuer Trust, but upon payment of any tax or
other governmental charges that may be imposed in connection with any transfer
or exchange. The Issuer Trusts will not be required to register or cause to be
registered the transfer of their Capital Securities after such Capital
Securities have been called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, other than during the occurrence and continuance of an
Event of Default, undertakes to perform only such duties as are specifically
set forth in each Trust Agreement and, after such Event of Default, must
exercise the same degree of care and skill as a prudent person would exercise
or use in the conduct of his or her own affairs. Subject to this provision,
the Property Trustee is under no obligation to exercise any of the powers
vested in it by the applicable Trust Agreement at the request of any holder of
Capital Securities unless it is offered reasonable indemnity against the
costs, expenses and liabilities that might be incurred thereby. If no Event of
Default has occurred and is continuing and the Property Trustee is required to
decide between alternative causes of action, construe ambiguous provisions in
the applicable Trust Agreement or is unsure of the application of any
provision of the applicable Trust Agreement, and the matter is not one on
which holders of
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Capital Securities are entitled under such Trust Agreement to vote, then the
Property Trustee shall take such action as is directed by State Street and if
not so directed, shall take such action as it deems advisable and in the best
interests of the holders of the Trust Securities and will have no liability
except for its own bad faith, negligence or willful misconduct.
TRUST EXPENSES
Pursuant to the Trust Agreement of each Issuer Trust, State Street, as
Depositor, shall agree to pay all debts and other obligations (other than with
respect to the Capital Securities) and all costs and expenses of each Issuer
Trust (including costs and expenses relating to the organization of each
Issuer Trust, the fees and expenses of the Issuer Trustees and the cost and
expenses relating to the operation of each Issuer Trust) and to pay any and
all taxes and costs and expenses with respect thereto (other than United
States withholding taxes) to which each Issuer Trust might become subject.
GOVERNING LAW
Each Trust Agreement will be governed by and construed in accordance with
the laws of the State of Delaware.
MISCELLANEOUS
The Administrative Trustees are authorized and directed to conduct the
affairs of and to operate the Issuer Trusts in such a way that no Issuer Trust
will be deemed to be an "investment company" required to be registered under
the Investment Company Act or classified as other than a grantor trust for
United States federal income tax purposes and so that the Corresponding Junior
Subordinated Debentures will be treated as indebtedness of State Street for
United States federal income tax purposes. In this connection, State Street
and the Administrative Trustees are authorized to take any action, not
inconsistent with applicable law, the certificate of trust of each Issuer
Trust or each Trust Agreement, that State Street and the Administrative
Trustees determine in their discretion to be necessary or desirable for such
purposes, as long as such action does not materially adversely affect the
interests of the holders of the related Capital Securities.
Holders of the Capital Securities have no preemptive or similar rights.
No Issuer Trust may borrow money or issue debt or mortgage or pledge any of
its assets.
DESCRIPTION OF GUARANTEES
A Guarantee will be executed and delivered by State Street concurrently with
the issuance by each Issuer Trust of its Capital Securities for the benefit of
the holders from time to time of such Capital Securities and Common
Securities. The First National Bank of Chicago will act as indenture trustee
("Guarantee Trustee") under each Guarantee for the purposes of compliance with
the Trust Indenture Act and each Guarantee will be qualified as an indenture
under the Trust Indenture Act. This summary of certain provisions of the
Guarantee, which summarizes the material terms thereof, does not purport to be
complete and is subject to, and qualified in its entirety by reference to, all
of the provisions of each Guarantee, including the definitions therein of
certain terms, and the Trust Indenture Act, to each of which reference is
hereby made. The form of the Guarantee has been filed as an exhibit to the
Registration Statement of which this Prospectus forms a part. Reference in
this summary to Capital Securities means that Issuer Trust's Capital
Securities to which a Guarantee relates. The Guarantee Trustee will hold each
Guarantee for the benefit of the holders of the related Issuer Trust's Capital
Securities and Common Securities.
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GENERAL
State Street will irrevocably agree to pay in full on a subordinated basis,
to the extent set forth herein, the Guarantee Payments (as defined below) to
the holders of the Trust Securities, as and when due, regardless of any
defense, right of set-off or counterclaim that such Issuer Trust may have or
assert other than the defense of payment. The following payments with respect
to the Capital Securities, to the extent not paid by or on behalf of the
related Issuer Trust (the "Guarantee Payments"), will be subject to the
Guarantee: (i) any accumulated and unpaid Distributions required to be paid on
such Capital Securities, to the extent that such Issuer Trust has funds on
hand available therefor at such time, (ii) the Redemption Price with respect
to any Capital Securities called for redemption, to the extent that such
Issuer Trust has funds on hand available therefor at such time, or (iii) upon
a voluntary or involuntary dissolution, winding up or liquidation of such
Issuer Trust (unless the Corresponding Junior Subordinated Debentures are
distributed to holders of such Capital Securities in exchange therefor), the
lesser of (a) the Liquidation Distribution and (b) the amount of assets of
such Issuer Trust remaining available for distribution to holders of Trust
Securities after satisfaction of liabilities to creditors of such Issuer Trust
as required by applicable law. State Street's obligation to make a Guarantee
Payment may be satisfied by direct payment of the required amounts by State
Street to the holders of the applicable Trust Securities or by causing the
Issuer Trust to pay such amounts to such holders.
Each Guarantee will be an irrevocable guarantee on a subordinated basis of
the related Issuer Trust's obligations under the Trust Securities, but will
apply only to the extent that such related Issuer Trust has funds sufficient
to make such payments, and is not a guarantee of collection.
If State Street does not make interest payments on the Corresponding Junior
Subordinated Debentures held by the Issuer Trust, the Issuer Trust will not be
able to pay Distributions on the Capital Securities and will not have funds
legally available therefor. Each Guarantee will rank subordinate and junior in
right of payment to all Senior Debt of State Street. See "--Status of the
Guarantees." Because State Street is a holding company, the right of State
Street to participate in any distribution of assets of any subsidiary, upon
such subsidiary's liquidation or reorganization or otherwise, is subject to
the prior claims of creditors of that subsidiary, except to the extent State
Street may itself be recognized as a creditor of that subsidiary. Accordingly,
State Street's obligations under the Guarantees will be effectively
subordinated to all existing and future liabilities of State Street's
subsidiaries, and claimants should look only to the assets of State Street for
payments thereunder. Except as otherwise provided in the Applicable Prospectus
Supplement, the Guarantees do not limit the incurrence or issuance of other
secured or unsecured debt of State Street, including Senior Debt, whether
under the Indenture, any other existing indenture or any other indenture that
State Street may enter into in the future or otherwise.
State Street has, through the applicable Guarantee, the applicable Trust
Agreement, the applicable series of Corresponding Junior Subordinated
Debentures and the Junior Subordinated Indenture, taken together, fully,
irrevocably and unconditionally guaranteed all of the Issuer Trust's
obligations under the Capital Securities. No single document standing alone or
operating in conjunction with fewer than all of the other documents
constitutes such guarantee. It is only the combined operation of these
documents that has the effect of providing a full, irrevocable and
unconditional guarantee of the Issuer Trust's obligations under the Capital
Securities. See "Relationship Among the Capital Securities, the Corresponding
Junior Subordinated Debentures and the Guarantees."
STATUS OF THE GUARANTEES
Each Guarantee will constitute an unsecured obligation of State Street and
will rank subordinate and junior in right of payment to all Senior Debt of
State Street in the same manner as the Junior Subordinated Debentures.
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Each Guarantee will rank pari passu with all other Guarantees issued by
State Street. Each Guarantee will constitute a guarantee of payment and not of
collection (i.e., the guaranteed party may institute a legal proceeding
directly against the Guarantor to enforce its rights under the Guarantee
without first instituting a legal proceeding against any other person or
entity). Each Guarantee will be held for the benefit of the holders of the
related Trust Securities. Each Guarantee will not be discharged except by
payment of the Guarantee Payments in full to the extent not paid by the Issuer
Trust or upon Junior Subordinated Debentures. None of the Guarantees places a
limitation on the amount of additional Senior Debt that may be incurred by
State Street. State Street expects from time to time to incur additional
indebtedness constituting Senior Debt.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not materially adversely affect
the rights of holders of the related Trust Securities (in which case no vote
will be required), no Guarantee may be amended without the prior approval of
the holders of not less than a majority of the aggregate Liquidation Amount of
such outstanding Trust Securities. The manner of obtaining any such approval
will be as set forth under "Description of Capital Securities--Voting Rights;
Amendment of Each Trust Agreement." All guarantees and agreements contained in
each Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of State Street and shall inure to the benefit of the holders
of the related Trust Securities then outstanding.
EVENTS OF DEFAULT
An event of default under each Guarantee will occur upon the failure of
State Street to perform any of its payment or other obligations thereunder.
The holders of not less than a majority in aggregate Liquidation Amount of the
related Trust Securities have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Guarantee Trustee
in respect of such Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under such Guarantee.
Any holder of the Trust Securities may institute a legal proceeding directly
against State Street to enforce its rights under such Guarantee without first
instituting a legal proceeding against the Issuer Trust, the Guarantee Trustee
or any other person or entity.
State Street, as guarantor, is required to file annually with the Guarantee
Trustee a certificate as to whether or not State Street is in compliance with
all the conditions and covenants applicable to it under the Guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and continuance of a
default by State Street in performance of any Guarantee, undertakes to perform
only such duties as are specifically set forth in each Guarantee and, after
default with respect to any Guarantee, must exercise the same degree of care
and skill as a prudent person would exercise or use in the conduct of his or
her own affairs. Subject to this provision, the Guarantee Trustee is under no
obligation to exercise any of the powers vested in it by any Guarantee at the
request of any holder of any Trust Securities unless it is offered reasonable
indemnity against the costs, expenses and liabilities that might be incurred
thereby.
TERMINATION OF THE GUARANTEES
Each Guarantee will terminate and be of no further force and effect upon
full payment of the Redemption Price of the related Trust Securities, upon
full payment of the amounts payable upon
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liquidation of the related Issuer Trust or upon distribution of Corresponding
Junior Subordinated Debentures to the holders of the related Trust Securities
in exchange therefor. Each Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any holder of the related Trust
Securities must restore payment of any sums paid under such Trust Securities
or such Guarantee.
GOVERNING LAW
Each Guarantee will be governed by and construed in accordance with the laws
of the State of New York.
RELATIONSHIP AMONG THE CAPITAL SECURITIES, THE CORRESPONDING
JUNIOR SUBORDINATED DEBENTURES AND THE GUARANTEES
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the Capital Securities
(to the extent the Issuer Trust has funds available for the payment of such
Distributions and other amounts) are irrevocably guaranteed by State Street as
and to the extent set forth under "Description of Guarantees." Taken together,
State Street's obligations under each series of Corresponding Junior
Subordinated Debentures, the Junior Subordinated Indenture, the related Trust
Agreement and the related Guarantee provide, in the aggregate, a full,
irrevocable and unconditional guarantee of payments of Distributions and other
amounts due on the Related Capital Securities. No single document standing
alone or operating in conjunction with fewer than all of the other documents
constitutes such guarantee. It is only the combined operation of these
documents that has the effect of providing a full, irrevocable and
unconditional guarantee of the Issuer Trust's obligations under the Related
Capital Securities. If and to the extent that State Street does not make
payments on any series of Corresponding Junior Subordinated Debentures, such
Issuer Trust will not pay Distributions or other amounts due on the Related
Capital Securities. The Guarantees do not cover payment of Distributions when
the related Issuer Trust does not have sufficient funds to pay such
Distributions. In such event, the remedy of a holder of a series of Capital
Securities is to institute a legal proceeding directly against State Street
pursuant to the terms of the Indenture for enforcement of payment of amounts
equal to such Distributions to such holder. The obligations of State Street
under each Guarantee are subordinate and junior in right of payment to all
Senior Debt of State Street.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on each
series of Corresponding Junior Subordinated Debentures, such payments will be
sufficient to cover Distributions and other payments due on the Related
Capital Securities, primarily because (i) the aggregate principal amount of
each series of Corresponding Junior Subordinated Debentures will be equal to
the sum of the aggregate stated Liquidation Amount of the Related Capital
Securities and the related Common Securities; (ii) the interest rate and
interest and other payment dates on each series of Corresponding Junior
Subordinated Debentures will match the Distribution rate and Distribution and
other payment dates for the Related Capital Securities; (iii) State Street
shall pay for all and any costs, expenses and liabilities of such Issuer Trust
except the Issuer Trust's obligations to holders of its Capital Securities
under such Capital Securities; and (iv) each Trust Agreement further provides
that the Issuer Trust will not engage in any activity that is not consistent
with the limited purposes of such Issuer Trust.
Notwithstanding anything to the contrary in the Junior Subordinated
Indenture, State Street has the right to set off any payment it is otherwise
required to make thereunder with and to the extent State Street has
theretofore made, or is concurrently on the date of such payment making, a
payment under the related Guarantee.
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ENFORCEMENT RIGHTS OF HOLDERS OF CAPITAL SECURITIES
A holder of any related Capital Security may institute a legal proceeding
directly against State Street to enforce its rights under the related
Guarantee without first instituting a legal proceeding against the Guarantee
Trustee, the related Issuer Trust or any other person or entity.
A default or event of default under any Senior Debt of State Street would
not constitute a default or Event of Default under the Junior Subordinated
Indenture. However, in the event of payment defaults under, or acceleration
of, Senior Debt of State Street, the subordination provisions of the Junior
Subordinated Indenture provide that no payments may be made in respect of the
Corresponding Junior Subordinated Debentures until such Senior Debt has been
paid in full or any payment default thereunder has been cured or waived.
Failure to make required payments on any series of Corresponding Junior
Subordinated Debentures would constitute an Event of Default under the Junior
Subordinated Indenture.
LIMITED PURPOSE OF ISSUER TRUSTS
Each Issuer Trust's Capital Securities evidence a beneficial interest in
such Issuer Trust, and each Issuer Trust exists for the sole purpose of
issuing its Capital Securities and Common Securities and investing the
proceeds thereof in Corresponding Junior Subordinated Debentures. A principal
difference between the rights of a holder of a Capital Security and a holder
of a Corresponding Junior Subordinated Debenture is that a holder of a
Corresponding Junior Subordinated Debenture is entitled to receive from State
Street the principal amount of and interest accrued on Corresponding Junior
Subordinated Debentures held, while a holder of Capital Securities is entitled
to receive Distributions from such Issuer Trust (or from State Street under
the applicable Guarantee) if and to the extent such Issuer Trust has funds
available for the payment of such Distributions.
RIGHTS UPON DISSOLUTION
Upon any voluntary or involuntary dissolution, winding up or liquidation of
any Issuer Trust involving the liquidation of the Corresponding Junior
Subordinated Debentures, after satisfaction of liabilities to creditors of the
Issuer Trust as required by applicable law, the holders of the related Capital
Securities will be entitled to receive, out of the assets held by such Issuer
Trust, the Liquidation Distribution in cash. See "Description of Capital
Securities--Liquidation Distribution Upon Termination." Upon any voluntary or
involuntary liquidation or bankruptcy of State Street, the Property Trustee,
as holder of the Corresponding Junior Subordinated Debentures, would be a
subordinated creditor of State Street, subordinated in right of payment to all
Senior Debt as set forth in the Junior Subordinated Indenture, but entitled to
receive payment in full of principal and interest, before any stockholders of
State Street receive payments or distributions. Since State Street is the
guarantor under each Guarantee and has agreed to pay for all costs, expenses
and liabilities of each Issuer Trust (other than the Issuer Trust's
obligations to the holders of its Capital Securities), the positions of a
holder of such Capital Securities and a holder of such Corresponding Junior
Subordinated Debentures relative to other creditors and to stockholders of
State Street in the event of liquidation or bankruptcy of State Street are
expected to be substantially the same.
DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. Certain terms of any series of the Preferred
Stock offered by any Prospectus Supplement will be described in such
Prospectus Supplement. If so indicated in the Prospectus Supplement, the terms
of any series of Preferred Stock may differ from the terms set forth below.
The description of certain provisions of the Preferred Stock set forth below
and in any Prospectus Supplement does not purport to be complete
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and is subject to and qualified in its entirety by reference to State Street's
Articles of Organization, including the definitions therein or certain terms,
and the certificate of designation (each a "Certificate of Designation")
relating to each series of the Preferred Stock that will be filed with the
Commission at or prior to the time of the issuance of such series of the
Preferred Stock. State Street's Articles of Organization have been filed as
Exhibit 3.1 to State Street's Annual Report on Form 10-K for the year ended
December 31, 1997 and are incorporated by reference thereto into the
Registration Statement of which this Prospectus is part.
The following sets forth certain general terms and provisions of the
Preferred Stock to which any Prospectus Supplement may relate.
GENERAL
Under State Street's Articles of Organization, State Street is authorized,
without further stockholder action, to issue up to 3,500,000 shares of
Preferred Stock, without par value, in one or more series, with such
designations, voting powers, preferences and relative limitations or
restrictions thereon, as may be stated or expressed in resolutions providing
for the creation and issuance thereof adopted by the Board of Directors of
State Street. Thus, without stockholder approval, the Board of Directors could
authorize the issuance of Preferred Stock with voting, conversion and other
rights that could dilute the voting power and other rights of the holders of
Common Stock. No Preferred Stock is currently outstanding.
The Preferred Stock shall have the dividend, liquidation, redemption and
voting rights set forth below, unless otherwise provided in a Prospectus
Supplement relating to a particular series of the Preferred Stock. Reference
is made to the Prospectus Supplement relating to the particular series of the
Preferred Stock offered hereby for specific terms, including: (i) the
designation and stated value per share of such Preferred Stock and the number
of shares offered; (ii) the amount of liquidation preference per share; (iii)
the initial public offering price at which such Preferred Stock will be
issued; (iv) the dividend rate or rates (or method or methods of calculation),
the dates on which dividends shall be payable and the dates from which
dividends shall commence to cumulate, if any; (v) any redemption or sinking
fund provisions; (vi) any conversion provisions; and (vii) any additional
voting, dividend, liquidation, redemption, sinking fund and other rights,
preferences, privileges, limitations and restrictions.
The Preferred Stock will, when issued, be fully paid and nonassessable and
holders thereof will have no preemptive rights in connection therewith. Unless
otherwise provided in the Applicable Prospectus Supplement, each series of the
Preferred Stock will rank on a parity as to payment of dividends and amounts
upon dissolution, liquidation or winding up of State Street. The rights of
holders of shares of each series of the Preferred Stock will be subordinate to
those of State Street's general creditors.
RANK
Any series of the Preferred Stock will, with respect to dividend rights and
rights on liquidation, winding up and dissolution rank (i) senior to all
classes of common stock of State Street and with all equity securities issued
by State Street, the terms of which specifically provide that such equity
securities will rank junior to the Preferred Stock (collectively referred to
as the "Junior Stock"); (ii) on a parity with all equity securities issued by
State Street, the terms of which specifically provide that such equity
securities will rank on a parity with the Preferred Stock (collectively
referred to as the "Parity Securities"); and (iii) junior to all equity
securities issued by State Street, the terms of which specifically provide
that such equity securities will rank on a parity with to the Preferred Stock.
All shares of Preferred Stock, will, regardless of series, be of equal rank.
As used in any Certificate of Designation for these purposes, the term "equity
securities" will not include debt securities convertible into or exchangeable
for equity securities.
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DIVIDEND RIGHTS
Holders of each series of the Preferred Stock will be entitled to receive,
when, as and if declared by the Board of Directors of State Street, out of
funds of State Street legally available therefor, cash dividends on such dates
and at such rates as are set forth in, or as are determined by the method
described in, the Prospectus Supplement relating to such series of the
Preferred Stock. Such rate may be fixed or variable or both. Each such
dividend will be payable to the holders of record as they appear on the stock
books of State Street on such record dates, fixed by the Board of Directors of
State Street, as specified in the Prospectus Supplement relating to such
series of the Preferred Stock.
Such dividends may be cumulative or noncumulative, as provided in the
Prospectus Supplement relating to such series of Preferred Stock. If the Board
of Directors of State Street fails to declare a dividend payable on a dividend
payment date on any series of Preferred Stock for which dividends are
noncumulative, then the right to receive a dividend in respect of the dividend
period ending on such dividend payment date will be lost, and State Street
will have no obligation to pay the dividend accrued for such period, whether
or not dividends on such series are declared payable on any future dividend
payment dates. Dividends on the shares of each series of Preferred Stock for
which dividends are cumulative will accrue from the date on which State Street
initially issues shares of such series or such other dates as may be set forth
in the Applicable Prospectus Supplement.
Unless otherwise specified in the Applicable Prospectus Supplement, so long
as the shares of any series of the Preferred Stock are outstanding, unless (i)
full dividends (including, if such Preferred Stock is cumulative, dividends
for prior dividend periods) have been paid or declared and set apart for
payment on all outstanding shares of the Preferred Stock of such series (other
than Junior Stock) and (ii) State Street is not in default or in arrears with
respect to the mandatory or optional redemption or mandatory repurchase or
other mandatory retirement of, or with respect to any sinking or other
analogous fund for, any shares of Preferred Stock of such series (other than
Junior Stock), State Street may not declare any dividends on any shares of
Junior Stock, or make any payment on account of, or set apart money for, the
purchase, redemption or other retirement of, or for a sinking or other
analogous fund for, any shares of Junior Stock or make any distribution in
respect thereof, whether in cash or property or in obligations or stock of
State Street, other than Junior Stock that is neither convertible into, nor
exchangeable or exercisable for, any securities of State Street other than
Junior Stock and other than as a result of the reclassification of Junior
Stock.
LIQUIDATION PREFERENCE
Unless otherwise specified in the Applicable Prospectus Supplement, in the
event of any liquidation, dissolution or winding up of State Street, whether
voluntary or involuntary, the holders of a series of Preferred Stock will be
entitled to receive out of the assets of State Street available for
distribution to stockholders, before any distribution of assets is made to the
holders of Junior Stock, the amount set forth in the Prospectus Supplement
relating to such series of the Preferred Stock. If, upon any voluntary or
involuntary liquidation, dissolution or winding up of State Street, the
amounts payable with respect to the Preferred Stock of any series and any
other shares of preferred stock of State Street (including any other series of
the Preferred Stock) ranking as to the payment of amounts upon the
dissolution, liquidation or winding up of State Street on a party with such
series of the Preferred Stock are not paid in full, the holders of the
Preferred Stock of such series and of such other shares of preferred stock of
State Street will share ratably in any such distribution of assets of State
Street in proportion to the full respective preferential amounts to which they
are entitled. After payment to the holders of the Preferred Stock of each
series of the full preferential amounts of the liquidating distribution to
which they are entitled, the holders of each such series of the Preferred
Stock will be entitled to no further participation in any distribution of
assets by State Street.
REDEMPTION
A series of the Preferred Stock may be redeemable, in whole or from time to
time in part, at the option of State Street with prior Federal Reserve Board
approval, and may be subject to mandatory
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redemption pursuant to a sinking fund or otherwise, in each case upon terms,
at the times and at the redemption prices set forth in the Prospectus
Supplement relating to such series. Shares of the Preferred Stock redeemed by
State Street will be restored to the status of authorized but unissued shares
of preferred stock of State Street.
In the event that fewer than all of the outstanding shares of a series of
the Preferred Stock are to be redeemed, whether by mandatory or optional
redemption, the number of shares to be redeemed will be determined by lot or
pro rata (subject to rounding to avoid fractional shares) as may be determined
by State Street or by any other method as may be determined by State Street in
its sole discretion to be equitable. From and after the redemption date
(unless default is made by State Street in providing for the payment of the
redemption price plus accumulated and unpaid dividends, if any) dividends will
cease to accumulate on the shares of the Preferred Stock called for redemption
and all rights of the holders thereof (except the right to receive the
redemption price plus accumulated and unpaid dividends, if any) will cease.
Unless otherwise specified in the Applicable Prospectus Supplement, so long
as any dividends on shares of any series of the Preferred Stock or any other
series of preferred stock of State Street ranking on a parity as to payment of
dividends and amounts upon the liquidation, dissolution or winding up of State
Street with such series of the Preferred Stock are in arrears, no shares of
any such series of the Preferred Stock or such other series of preferred stock
of State Street will be redeemed (whether by mandatory or optional redemption)
unless all such shares are simultaneously redeemed, and State Street will not
purchase or otherwise acquire any such shares; provided, however, that the
foregoing will not prevent the purchase or acquisition of such shares pursuant
to a purchase or exchange offer made on the same terms to holders of all such
shares outstanding.
CONVERSION RIGHTS
Shares of Preferred Stock of any series offered hereunder may not be
exchanged for or converted (mandatorily or otherwise) into shares of Common
Stock but may be exchanged for or converted (mandatorily or otherwise) into
shares of another series of Preferred Stock.
EXCHANGEABILITY
The holders of shares of Preferred Stock of any series may be obligated at
any time or at maturity to exchange such shares for debt securities of State
Street. The terms of any such exchange and any such debt securities will be
described in the Prospectus Supplement relating to such series of Preferred
Stock.
VOTING RIGHTS
Except as indicated in a Prospectus Supplement relating to a particular
series of the Preferred Stock, or except as required by applicable
Massachusetts law or in State Street's Articles of Organization, the holders
of the Preferred Stock will not be entitled to vote for any purpose.
Under regulations adopted by the Federal Reserve Board, if the holders of
shares of any series of Preferred Stock of State Street become entitled to
vote for the election of directors, such series may then be deemed a "class of
voting securities" and a holder of 25% or more of such series (or a holder of
5% if it otherwise exercises a "controlling influence" over State Street) may
then be subject to regulation as a bank holding company in accordance with the
Bank Holding Company Act of 1956, as amended. In addition, at such time as
such series is deemed a class of voting securities, (i) any other bank holding
company may be required to obtain the approval of the Federal Reserve Board to
acquire or retain 5% or more of such series, and (ii) any person other than a
bank holding company may be required to file with the Federal Reserve Board
under the Change in Bank Control Act to acquire or retain 10% or more of such
series.
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TRANSFER AGENT AND REGISTRAR
Unless otherwise indicated in a Prospectus Supplement relating thereto,
State Street Bank and Trust Company will be the transfer agent, dividend and
redemption price disbursement agent and registrar for shares of each series of
the Preferred Stock.
GLOBAL SECURITIES
GENERAL
The Offered Securities of a series that are Debt Securities or Capital
Securities may be issued in whole or in part in the form of one or more fully
registered global Offered Securities (respectively, the "Global Debt
Securities" and the "Global Capital Securities," each of which is a "Global
Security," and together which are the "Global Securities") that will be
deposited with, or on behalf of, a depository (the "Depository") which unless
otherwise indicated in the Applicable Prospectus Supplement for such series
will be DTC. Global Capital Securities may be issued in either temporary or
permanent form. Unless and until it is exchanged in whole or in part for
Offered Securities in definitive form, a Global Security may not be
transferred except as a whole by the Depository for such Global Security to a
nominee of such Depository or by a nominee of such Depository to such
Depository or another nominee of such Depository or by such Depository or any
such nominee to a successor of such Depository or a nominee of such successor
or in the manner provided in the final paragraph under this heading.
The specific terms of the depository arrangement with respect to any Offered
Securities will be described in the Applicable Prospectus Supplement. State
Street anticipates that the following provisions will apply to all depository
arrangements.
Upon the issuance of a Global Security and the deposit of such Global
Capital Security with or on behalf of the Depository, the Depository for such
Global Security will credit, on its book-entry registration and transfer
system, the respective principal amounts or aggregate Liquidation Amounts, as
the case may be, of the Offered Securities represented by such Global Security
to the accounts of persons that have accounts with such Depository
("Participant"), which may include Euroclear and Cedel. The accounts to be
credited shall be designated by the dealers, underwriters or agents
participating in the distribution of such Offered Securities or by State
Street, if such Offered Securities are offered and sold directly by State
Street. Ownership of beneficial interests in a Global Security will be limited
to Participants or persons that may hold interest through Participants.
Ownership of beneficial interest in such Global Security will be shown on,
and the transfer of that ownership will be effected only through, records
maintained by the Depository for such Global Security (with respect to
interests of Participants) or by Participants or persons that hold through
Participants (with respect to interests of persons other than Participants).
The laws of some states require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such limits and such
laws may impair the ability to own, transfer or pledge beneficial interests in
a Global Security.
So long as the Depository for a Global Security, or its nominee, is the
holder of such Global Security, such Depository or such nominee, as the case
may be, will be considered the sole owner or holder of the Offered Securities
represented by such Global Security for all purposes under the applicable
Indenture or Trust Agreement, as the case may be. Except as set forth below,
owners of beneficial interests in a Global Security will not be entitled to
have Offered Securities of the series represented by such Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of Offered Securities of such series in definitive form and will not
be considered the owners or holders thereof under the applicable Indenture or
Trust Agreement, as the case may be.
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Accordingly, each person owning a beneficial interest in a Global Security
must rely on the procedures of the Depository for such Global Security and, if
such person is not a Participant, on the procedures of the Participant through
which such person owns its interest, to exercise any rights of a holder under
the applicable Indenture. State Street understands that under existing
industry practices, if State Street requests any action of holders or if an
owner of a beneficial interest in a Global Security desires to give or take
any action which a holder is entitled to give or take under the applicable
Indenture, the Depository for such Global Security would authorize the
Participants holding the relevant beneficial interest to give or take such
action, and such Participants would authorize beneficial owners owning through
such Participants to give or take such action or would otherwise act upon the
instructions of beneficial owners holding through them.
Payments of principal of or premium, if any, and interest, if any, on
Offered Securities represented by a Global Security registered in the name of
a Depository or its nominee will be made to such Depository or its nominee, as
the case may be, as the registered owner or the holder of the Global Security
representing such Offered Securities. None of State Street, the Trustee for
such Offered Securities, any paying agent for such Offered Securities, the
Property Trustee or the Securities Registrar, as applicable, will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a Global
Security for such Offered Securities or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
State Street expects that the Depository for any Offered Securities
represented by a Global Debt Security, upon receipt of any payment of
principal, premium or interest, will credit immediately Participants' accounts
with payments in amounts proportionate to their respective beneficial
interests in the principal amount of such Global Debt Security as shown on the
records of such Depository. State Street expects that the Depository for a
series of Capital Securities or its nominee, upon receipt of any payment of
Liquidation Amount, Redemption Price, premium or Distributions in respect of a
permanent Global Capital Security representing any of such Capital Securities,
immediately will credit Participants' accounts with payments in amounts
proportionate to their respective beneficial interest in the aggregate
Liquidation Amount of such Global Capital Security for such Capital Securities
as shown on the records of such Depositary or its nominee. State Street also
expects that payments by Participants to owners of beneficial interests in
such Global Security held through such Participants will be governed by
standing instructions and customary practices, as is now the case with
securities held for the accounts of customers in bearer form or registered in
"street name," and will be the responsibility of such Participants.
No Global Debt Security may be exchanged in whole or in part for Debt
Securities registered, and no transfer of a Global Debt Security in whole or
in part may be registered, in the name of any Person other than the Depository
for such Global Debt Security or a nominee thereof unless (a) such Depository
(i) has notified State Street that it is unwilling or unable to continue as
Depository for such Global Debt Security or (ii) has ceased to be a clearing
agency registered under the Exchange Act, (b) there shall have occurred and be
continuing an Event of Default or a Default, as the case may be, with respect
to such Global Debt Security or (c) there shall exist such circumstances, if
any, in addition to or in lieu of the foregoing as have been specified for
this purpose as contemplated by the Indentures. (Section 305)
Unless otherwise specified in the Applicable Prospectus Supplement, if a
Depository for a series of Capital Securities is at any time unwilling, unable
or ineligible to continue as Depository and a successor Depository is not
appointed by the Issuer Trust within 90 days, the Issuer Trust will issue
individual Capital Securities of such series in exchange for the Global
Capital Security representing such series of Capital Securities. In addition,
the Issuer Trust may at any time and in its sole discretion, subject to any
limitations described in the Prospectus Supplement relating to such Capital
Securities, determine not to have any Capital Securities of such series
represented by one or more
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Global Capital Securities and, in such event, will issue individual Capital
Securities of such series in exchange for the Global Capital Security or
Securities representing such series of Capital Securities. Further, if the
Issuer Trust so specifies with respect to the Capital Securities of a series,
an owner of a beneficial interest in a Global Capital Security representing
Capital Securities of such series may, on terms acceptable to the Issuer
Trust, the Property Trustee and the Depository for such Global Capital
Security, receive individual Capital Securities of such series in exchange for
such beneficial interests, subject to any limitations described in the
Prospectus Supplement relating to such Capital Securities. In any such
instance, an owner of a beneficial interest in a Global Capital Security will
be entitled to a physical delivery of individual Capital Securities of the
series represented by such Global Capital Security equal in principal amount
to such beneficial interest and to have such Capital Securities registered in
its name.
BOOK-ENTRY ISSUANCE
DTC will act as securities Depository for all of the Capital Securities and
the Debt Securities, including the Junior Subordinated Debentures, unless
otherwise referred to in the Prospectus Supplement relating to an offering of
Capital Securities or Debt Securities. The Capital Securities and the Debt
Securities will be issued only as fully-registered securities registered in
the name of Cede & Co. (DTC's nominee). One or more fully-registered global
certificates will be issued for the Capital Securities of each Issuer Trust
and the Debt Securities, representing in the aggregate the total number of
such Issuer Trust's Capital Securities or aggregate principal balance of Debt
Securities, respectively, and will be deposited with the Property Trustee as
custodian for DTC.
DTC is a limited purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law,
a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its Participants deposit with DTC. DTC also facilitates
the settlement among Participants of securities transactions, such as
transfers and pledges, in deposited securities through electronic computerized
book-entry changes in Participants' accounts, thereby eliminating the need for
physical movement of securities certificates. "Direct Participants" include
securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations. DTC is owned by a number of its Direct
Participants and by the New York Stock Exchange, Inc., the American Stock
Exchange, Inc. and the National Association of Securities Dealers, Inc. Access
to the DTC system is also available to others such as securities brokers and
dealers, banks and trust companies that clear through or maintain custodial
relationships with Direct Participants, either directly or indirectly
("Indirect Participants"). The rules applicable to DTC and its Participants
are on file with the Commission.
Purchases of Capital Securities or Debt Securities within the DTC system
must be made by or through Direct Participants, which will receive a credit
for the Capital Securities or Debt Securities on DTC's records. The ownership
interest of each actual purchaser of each Capital Security and each Debt
Security ("Beneficial Owner") is in turn to be recorded on the Direct and
Indirect Participants' records, including Euroclear and Cedel. Beneficial
Owners will not receive written confirmation from DTC of their purchases, but
Beneficial Owners are expected to receive written confirmations providing
details of the transactions, as well as periodic statements of their holdings,
from the Direct or Indirect Participants through which the Beneficial Owners
purchased Capital Securities or Junior Subordinated Debentures. Transfers of
ownership interests in the Capital Securities or Debt Securities are to be
accomplished by entries made on the books of Participants acting on behalf of
Beneficial Owners. Beneficial Owners will not receive certificates
representing their ownership interests in Capital Securities or Debt
Securities, except in the event that use of the book-entry system for the
Capital Securities of such Issuer Trust or Debt Securities is discontinued.
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Transfers between Participants will be effected in accordance with DTC's
procedures and will be settled in same-day funds. Transfers between
Participants in Euroclear and Cedel will be effected in the ordinary way in
accordance with their respective rules and operating procedures.
Cross-market transfers between Participants, on the one hand, and Euroclear
Participants or Cedel Participants, on the other hand, will be effected in DTC
in accordance with DTC's rules on behalf of Euroclear or Cedel, as the case
may be, by its respective Depository; however, such cross-market transaction
will require delivery of instructions to Euroclear or Cedel, as the case may
be, by the counterparty in such system in accordance with the rules and
procedures and within the established deadlines (Brussels time) of such
system. Euroclear or Cedel, as the case may be, will, if the transaction meets
its settlement requirements, deliver instructions to its respective Depository
to take action to effect final settlement on its behalf by delivering or
receiving interests in the Capital Securities or Debt Securities in DTC, and
making or receiving payment in accordance with normal procedures and Cedel
Participants may not deliver instructions directly to the depositaries for
Euroclear or Cedel.
Because of time zone differences, the securities account of a Euroclear or
Cedel Participant purchasing an interest in a Capital Security or Debt
Security from a Participant in DTC will be credited, and any such crediting
will be reported to the relevant Euroclear Participant or Cedel Participant,
during the securities settlement processing day (which must be a business day
for Euroclear and Cedel, as the case may be) immediately following the DTC
settlement date. Cash received in Euroclear or Cedel as a result of sales of
interests in a Capital Security or Debt Security by or through a Euroclear or
Cedel Participant to a Participant in DTC will be received with value on the
DTC settlement date but will be available in the relevant Euroclear or Cedel
cash account only as of the business day for Euroclear or Cedel following the
DTC settlement date.
DTC has no knowledge of the actual Beneficial Owners of the Capital
Securities or Debt Securities; DTC's records reflect only the identity of the
Direct Participants to whose accounts such Capital Securities or Debt
Securities are credited, which may or may not be the Beneficial Owners. The
Participants will remain responsible for keeping account of their holdings on
behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners and the voting
rights of Direct Participants, Indirect Participants and Beneficial Owners
will be governed by arrangements among them, subject to any statutory or
regulatory requirements as may be in effect from time to time.
Redemption notices will be sent to Cede & Co. as the registered holder of
the Capital Securities or Debt Securities. If less than all of an Issuer
Trust's Capital Securities or the Debt Securities are being redeemed, DTC's
current practice is to determine by lot the amount of the interest of each
Direct Participant to be redeemed.
Although voting with respect to the Capital Securities or the Debt
Securities is limited to the holders of record of the Capital Securities or
Debt Securities, in those instances in which a vote is required, neither DTC
nor Cede & Co. will itself consent or vote with respect to Capital Securities
or Debt Securities. Under its usual procedures, DTC would mail an omnibus
proxy (the "Omnibus Proxy") to the relevant Trustee as soon as possible after
the record date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting
rights to those Direct Participants to whose accounts such Capital Securities
or Debt Securities are credited on the record date (identified in a listing
attached to the Omnibus Proxy).
Distribution payments on the Capital Securities or the Debt Securities will
be made by the relevant Trustee to DTC. DTC's practice is to credit Direct
Participants' accounts on the relevant
47
<PAGE>
payment date in accordance with their respective holdings shown on DTC's
records unless DTC has reason to believe that it will not receive payments on
such payment date. Payments by Participants to Beneficial Owners will be
governed by standing instructions and customary practices and will be the
responsibility of such Participant and not of DTC, the relevant Trustee, the
Issuer Trust thereof or State Street, subject to any statutory or regulatory
requirements as may be in effect from time to time. Payment of Distributions
to DTC is the responsibility of the relevant Trustee, and disbursements of
such payments to the Beneficial Owners is the responsibility of Direct and
Indirect Participants.
DTC may discontinue providing its services as securities Depository with
respect to any of the Capital Securities or the Debt Securities at any time by
giving reasonable notice to the relevant Trustee and State Street. In the
event that a successor securities Depository is not obtained, definitive
Capital Security or Junior Subordinated Debenture certificates representing
such Capital Securities or Debt Securities are required to be printed or
delivered. State Street, at its option, may decide to discontinue use of the
system of book-entry transfers through DTC (or a successor Depository). After
a Debenture Event of Default, the holders of a majority in liquidation
preference of Capital Securities or aggregate principal amount of Debt
Securities may determine to discontinue the system of book-entry transfers
through DTC. In any event, definitive certificates for such Capital Securities
or Debt Securities will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that the Issuer Trusts and State Street believe
to be accurate, but the Issuer Trusts and State Street assume no
responsibility for the accuracy thereof. Neither the Issuer Trusts nor State
Street has any responsibility for the performance by DTC or its Participants
of their respective obligations as described herein or under the rules and
procedures governing their respective operations.
PLAN OF DISTRIBUTION
The Offered Securities may be sold in a public offering to or through
underwriters or dealers designated from time to time. State Street may sell
its Debt Securities or Preferred Stock, and each Issuer Trust may sell its
Capital Securities as soon as practicable after effectiveness of the
Registration Statement of which this Prospectus forms a part. The names of any
underwriters or dealers involved in the sale of the such Securities in respect
of which this Prospectus is delivered, the amount or number of such Securities
to be purchased by any such underwriters and any applicable commissions or
discounts will be set forth in the Applicable Prospectus Supplement.
Underwriters may offer and sell Securities at a fixed price or prices, which
may be changed, or from time to time at market prices prevailing at the time
of sale, at prices related to such prevailing market prices or at negotiated
prices. In connection with the sale of Securities, underwriters may be deemed
to have received compensation from State Street and/or the applicable Issuer
Trust in the form of underwriting discounts or commissions and may also
receive commissions. Underwriters may sell Offered Securities to or through
dealers, and such dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters.
Any underwriting compensation paid by State Street and/or the applicable
Issuer Trust to underwriters in connection with the offering of Securities,
and any discounts, concessions or commissions allowed by such underwriters to
participating dealers, will be described in the accompanying Prospectus
Supplement. Underwriters and dealers participating in the distribution of
Offered Securities may be deemed to be underwriters, and any discounts and
commissions received by them and any profit realized by them on resale of such
Offered Securities may be deemed to be underwriting discounts and commissions,
under the Securities Act. Underwriters and dealers may be entitled, under
agreement with State Street and the applicable Issuer Trust, to
indemnification against and contribution toward certain civil liabilities,
including liabilities under the Securities Act, and to reimbursement by State
Street for certain expenses.
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<PAGE>
In connection with the offering of the Capital Securities of any Issuer
Trust, such Issuer Trust may grant to the underwriters an option to purchase
additional Capital Securities to cover over-allotments, if any, at the initial
public offering price (with an additional underwriting commission), as may be
set forth in the accompanying Prospectus Supplement. If such Issuer Trust
grants any over-allotment option, the terms of such over-allotment option will
be set forth in the Prospectus Supplement for such Capital Securities.
Underwriters and dealers may engage in transactions with, or perform
services for, State Street and/or the applicable Issuer Trust and/or any of
their affiliates in the ordinary course of business.
The Offered Securities will be new issues of securities and will have no
established trading market. Any underwriters to whom Offered Securities are
sold for public offering and sale may make a market in such Offered
Securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. Such Offered
Securities may or may not be listed on a national securities exchange or the
Nasdaq National Market. No assurance can be given as to the liquidity of or
the existence of trading markets for any Offered Securities.
VALIDITY OF SECURITIES
Unless otherwise indicated in the Applicable Prospectus Supplement, certain
matters of Delaware law relating to the validity of the Capital Securities,
the enforceability of the applicable Trust Agreement and the creation of each
Issuer Trust will be passed upon for State Street and for the Issuer Trusts by
Richards, Layton & Finger P.A., special Delaware counsel to State Street and
the Issuer Trusts. Unless otherwise indicated in the Applicable Prospectus
Supplement, certain legal matters will be passed upon by Ropes & Gray for
State Street and the Issuer Trusts and for the Underwriters by Cravath, Swaine
& Moore. Ropes & Gray will rely as to all matters of New York law on the
opinion of Cravath, Swaine & Moore. Truman S. Casner, a director of State
Street, is a partner of Ropes & Gray. Mr. Casner owns beneficially a total of
13,365 shares of Common Stock of State Street. Ropes & Gray performs services
for State Street from time to time. Ropes & Gray and Cravath, Swaine & Moore
will rely on Richards, Layton & Finger P.A. as to all matters of Delaware law.
EXPERTS
The consolidated financial statements and schedules of State Street at
December 31, 1997 and 1996, and for each of the three years in the period
ended December 31, 1997, incorporated by reference in State Street's Annual
Report on Form 10-K for the year ended December 31, 1997, have been audited by
Ernst & Young LLP, as set forth in their report thereon incorporated therein
and herein by reference. Such consolidated financial statements and schedules
are incorporated herein by reference in reliance upon such report given upon
the authority of such firm as experts in accounting and auditing.
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<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Registration fee under the Securities Act of 1933, as
amended.................................................... $120,689.65**
Blue Sky fees and expenses (including counsel fees)......... 20,000.00
Fees of rating agencies..................................... 100,000.00
Trustees' fee and expenses.................................. 10,000.00
Printing and engraving...................................... 25,000.00
Accounting services......................................... 10,000.00
Legal fees of Registrants' counsel.......................... 120,000.00
Miscellaneous............................................... 10,000.00
-----------
Total..................................................... $415,689.65
===========
</TABLE>
- --------
* All the amounts except the Registration Fee are estimated.
** Previously paid.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 67 of Chapter 156B of the General Laws of Massachusetts provides
that to the extent specified in or authorized by the articles of organization,
a by-law adopted by shareholders or a vote adopted by the holders of the
majority of shares of stock entitled to vote on the election of directors, a
corporation can indemnify directors, officers, employees and other agents of
the corporation (and persons who serve at its request as directors, officers,
employees and other agents of another organization or who serve at its request
in any capacity with respect to any employee benefit plan) except as to any
matter as to which such person shall have been adjudicated in any proceeding
not to have acted in good faith in the reasonable belief that the action was
in the best interest of the corporation.
The Articles of Organization of State Street (Article 6) provide the
following:
The corporation shall to the fullest extent legally permissible indemnify
each person who is or was a director, employee or other agent of the
corporation and each person who is or was serving at the request of the
corporation as a director, trustee, officer, employee or other agent of
another corporation or of any partnership, joint venture, trust, employee
benefit plan or other enterprise or organization against all liabilities,
costs and expenses, including but not limited to amounts paid in
satisfaction of judgments, in settlement or as fines and penalties, and
counsel fees and disbursements, reasonably incurred by him in connection
with the defense or disposition of or otherwise in connection with or
resulting from any action, suit or other proceeding, whether civil,
criminal, administrative or investigative, before any court or
administrative or legislative or investigative body, in which he may be or
may have been involved as a party or otherwise or with which he may be or
may have been threatened, while in office or thereafter, by reason of his
being or having been such a director, officer, employee, agent or trustee,
or by reason of any action taken or not taken in any such capacity, except
with respect to any matter as to which he shall have been finally
adjudicated by a court of competent jurisdiction not to have acted in good
faith in the reasonable belief that his action was in the best interests of
the corporation (any person serving another organization in one or more of
the indicated capacities at the request of the corporation who shall not
have been adjudicated in any proceeding not to have acted in good faith in
the reasonable belief that his action was in the best interest of such
other organization shall be deemed so to have acted in good faith with
respect to the corporation) or to the extent that such matter relates to
service with respect to an employee benefit plan, in the best interest of
the participants or beneficiaries of such employee
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<PAGE>
benefit plan. Expenses, including but not limited to counsel fees and
disbursements, so incurred by any such person in defending any such action,
suit or proceeding, shall be paid from time to time by the corporation in
advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of the person indemnified to
repay the amounts so paid if it shall ultimately be determined that
indemnification of such expenses is not authorized hereunder.
If, in an action, suit or proceeding brought by or in the name of the
corporation, a director of the corporation is held not liable for monetary
damages, whether because that director is relieved of personal liability
under the provisions of this Article Six of the Articles of Organization,
or otherwise, that director shall be deemed to have met the standard of
conduct set forth above and to be entitled to indemnification for expenses
reasonably incurred in the defense of such action, suit or proceeding.
As to any matter disposed of by settlement by any such person, pursuant
to a consent decree or otherwise, no such indemnification either for the
amount of such settlement or for any other expenses shall be provided
unless such settlement shall be approved as in the best interests of the
corporation, after notice that it involves such indemnification, (a) by
vote of a majority of the disinterested directors then in office (even
though the disinterested directors be less than a quorum), or (b) by any
disinterested person or persons to whom the question may be referred by
vote of a majority of such disinterested directors, or (c) by vote of the
holders of a majority of the outstanding stock at the time entitled to vote
for directors, voting as a single class, exclusive of any stock owned by
any interested person, or (d) by any disinterested person or persons to
whom the question may be referred by vote of the holders of a majority of
such stock. No such approval shall prevent the recovery from any such
director, officer, employee, agent or trustee of any amounts paid to him or
on his behalf as indemnification in accordance with the preceding sentence
if such person is subsequently adjudicated by a court of competent
jurisdiction not to have acted in good faith in the reasonable belief that
his action was in the best interests of the corporation.
The right of indemnification hereby provided shall not be exclusive of or
affect any other rights to which any director, officer, employee, agent or
trustee may be entitled or which may lawfully be granted to him. As used
herein, the terms "director," "officer," "employee," "agent" and "trustee"
include their respective executors, administrators and other legal
representatives, an "interested" person is one against whom the action,
suit or other proceeding in question or another action, suit or other
proceeding on the same or similar grounds is then or had been pending or
threatened, and a "disinterested" person is a person against whom no such
action, suit or other proceeding is then or had been pending or threatened.
By action of the board of directors, notwithstanding any interest of the
directors in such action, the corporation may purchase and maintain
insurance, in such amounts as the board of directors may from time to time
deem appropriate, on behalf of any person who is or was a director,
officer, trustee, employee or other agent of the corporation, or is or was
serving at the requests of the corporation as a director, officer, trustee,
employee or other agent of another corporation or of any partnership, joint
venture, trust, employee benefit plan or other enterprise or organization
against any liability incurred by him in any such capacity, or arising out
of his status as such, whether or not the corporation would have the power
to indemnify him against such liability.
A director of this corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director notwithstanding any provision of law imposing
such liability, provided, however, that this paragraph of Article Six shall
not eliminate the liability of a director to the extent such liability is
imposed by applicable law (i) for any breach of the director's duty of
loyalty to this corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of
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<PAGE>
law, (iii) for any transaction from which the director derived an improper
personal benefit, or (iv) for paying a dividend, approving a stock
repurchase or making loans which are illegal under certain provisions of
Massachusetts law, as the same exists or hereafter may be amended. If
Massachusetts law is hereafter amended to authorize the further limitation
of the legal liability of the directors of this corporation, the liability
of the directors shall then be deemed to be limited to the fullest extent
then permitted by Massachusetts law as so amended. Any repeal or
modification of this paragraph of this Article Six which may hereafter be
effected by the stockholders of this corporation shall be prospective only,
and shall not adversely affect any limitation on the liability of a
director for acts or omissions prior to such repeal or modification.
In addition, State Street maintains a directors' and officers' liability
insurance policy.
Under the Trust Agreement of each Issuer Trust, State Street will agree to
indemnify each of the Issuer Trustees of such Issuer Trust, and to hold the
Issuer Trustees harmless against, any loss, damage, claims, liability or
expense incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of such Trust
Agreement, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of
its powers or duties under such Trust Agreement.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
4.1 Restated Articles of Organization (filed with the Securities and
Exchange Commission as Exhibit 3.1 to Registrant's Annual
report on Form 10-K for the year ended December 31, 1997 and
incorporated by reference (File No. 0-5108)).
4.2 Bylaws as amended (filed with the Securities and Exchange
Commission as Exhibit 3.2 to Registrant's Annual report on Form
10-K for the year ended December 31, 1991 and incorporated by
reference).
4.3 Certificate of Designation, Preference and Rights (filed with
the Securities and Exchange Commission as Exhibit 3.1 to
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1991 and incorporated by reference).
4.4 The description of Registrant's Common Stock included in the
Registrant's effective registration statement report on Form
10, as filed with the Securities and Exchange Commission on
September 3, 1970 and amended on May 12, 1971 and incorporated
by reference.
4.5 Rights Agreement dated as of September 15, 1988 between
Registrant and The First National Bank of Boston, as Rights
Agent (filed with the Securities and Exchange Commission as
Exhibit 4 to Registrant's Current Report on Form 8-K dated
September 30, 1988 and incorporated by reference).
4.6 Amendment to Rights Agreement dated as of September 20, 1990
between Registrant and The First National Bank of Boston,
Rights Agent (filed with the Securities and Exchange Commission
as Exhibit 4 to Registrant's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1990 and incorporated by
reference).
4.7 Indenture dated as of May 1, 1983 between Registrant and Morgan
Guaranty Trust Company of New York, Trustee, relating to
Registrant 7 3/4% Convertible Subordinated Debentures due 2008
(filed with the Securities and Exchange Commission as Exhibit 4
to Registrant's Registration Statement on Form S-3 filed on
April 22, 1983, Commission File No. 2-83251 and incorporated by
reference).
4.8 Indenture dated as of August 2, 1993 (the "Senior Indenture")
between Registrant and The First National Bank of Boston, as
trustee relating to Registrant's long-term notes (filed with
the Securities and Exchange Commission as Exhibit 4 to
Registrant's Current Report on Form 8-K dated October 8, 1993
and incorporated by reference).
</TABLE>
52
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
4.9 Instrument of Resignation, appointment, and acceptance, dated as
of February 14, 1996 between Registrant, The First National
Bank of Boston (resigning trustee) and Fleet National Bank of
Massachusetts (successor trustee) (filed with the Securities
and Exchange Commission as Exhibit 4.6 to Registrant's Annual
Report on Form 10-K for the year ended December 31, 1995 and
incorporated by reference).
4.10 Junior Subordinated Indenture dated as of December 15, 1996 (the
"Junior Subordinated Indenture") between Registrant and the
First National Bank of Chicago (filed with the Securities and
Exchange Commission as Exhibit 1 to Registrant's Current Report
on Form 8-K dated February 27, 1997 and incorporated by
reference).
4.11 Amended and Restated Trust Agreement dated as of December 15,
1996 relating to State Street Institutional Capital A (filed
with the Securities and Exchange Commission as Exhibit 2 to
Registrant's Current Report on Form 8-K dated February 27, 1997
and incorporated by reference).
4.12 Capital Securities Guarantee Agreement dated as of December 15,
1996 between Registrant and The First National Bank of Chicago
(filed with the Securities and Exchange Commission as Exhibit 3
to Registrant's Current Report on Form 8-K dated February 27,
1997 and incorporated by reference).
4.13 Amended and Restated Trust Agreement, dated March 11, 1997
relating to State Street Institutional Capital B (filed with
the Securities and Exchange Commission as Exhibit 2 to the
Registrant's Current Report on Form 8-K dated March 11, 1997
and incorporated by reference).
4.14 Capital Securities Guarantee Agreement dated March 11,1997
between registrant and The First National Bank of Chicago
(filed with the Securities and Exchange Commission as Exhibit 3
to Registrant's Current Report on Form 8-K dated March 11, 1997
and incorporated by reference).
4.15 Instrument of Resignation, Appointment and Acceptance dated as
of June 26, 1997 among the Registrant, Fleet National Bank
(resigning trustee) and First Trust National Association (now
known as U.S. Bank Trust National Association) (successor
trustee).
4.16 Form of Indenture to be entered into by Registrant and the U.S.
Bank Trust National Association in connection with the issuance
of the Subordinated Debt Securities.
4.17 Certificate of Trust of State Street Capital Trust I, as filed
with the Delaware Secretary of State on March 25, 1998.
4.18 Certificate of Trust of State Street Capital Trust II, as filed
with the Delaware Secretary of State on March 25, 1998 .
4.19 Certificate of Trust of State Street Capital Trust III, as filed
with the Delaware Secretary of State on March 25, 1998.
4.20 Declaration of Trust of State Street Capital Trust I among State
Street Corporation, as Depositor, The First National Bank of
Chicago, as Property Trustee, First Chicago Delaware Inc., as
Delaware Trustee, and the Administrative Trustees named
therein.
4.21 Declaration of Trust of State Street Capital Trust II among
State Street Corporation, as Depositor, The First National Bank
of Chicago, as Property Trustee, First Chicago Delaware Inc.,
as Delaware Trustee, and the Administrative Trustees named
therein.
4.22 Declaration of Trust of State Street Capital Trust III among
State Street Corporation, as Depositor, The First National Bank
of Chicago, as Property Trustee, First Chicago Delaware Inc.,
as Delaware Trustee, and the Administrative Trustees named
therein.
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
4.23 Form of Amended and Restated Trust Agreement for each of State
Street Capital Trust I, State Street Capital Trust II and State
Street Capital Trust III among State Street Corporation, as
Depositor, The First National Bank of Chicago, as Property
Trustee, First Chicago Delaware, as Delaware Trustee, and the
Administrative Trustees named therein.
4.24 Form of Capital Security Certificate for each of State Street
Capital Trust I, State Street Capital Trust II and State Street
Capital Trust III (included as Exhibit D to Exhibit 4.23).
4.25 Form of Guarantee Agreement for each of State Street Capital
Trust I, State Street Capital Trust II and State Street Capital
Trust III between State Street Corporation, as guarantor, and
The First National Bank of Chicago, as trustee.
5.1 Opinion of counsel to State Street Corporation as to the
validity of the Junior Subordinated Debentures and the
Guarantees to be issued by the Corporation.
5.2 Opinion of special Delaware counsel to State Street Corporation
and State Street Capital Trust I as to validity of the Capital
Securities to be issued by State Street Capital Trust I.
5.3 Opinion of special Delaware counsel to State Street Corporation
and State Street Capital Trust II as to the validity of the
Capital Securities to be issued by State Street Capital Trust
II.
5.4 Opinion of special Delaware counsel to State Street Corporation
and State Street Capital Trust III as to the validity of the
Capital Securities to be issued by State Street Capital Trust
III.
12.1 Computation of ratio of earnings to fixed charges (incorporated
by reference to Exhibit 12.1 to the Annual Report on Form 10-K
for the year ended December 31, 1997 of State Street
Corporation).
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Ropes & Gray (included in Exhibit 5.1).
23.3 Consent of Richards, Layton & Finger P.A. (included in Exhibits
5.2, 5.3 and 5.4).
24 Powers of Attorney (included in the signature pages to this
Registration Statement).
25.1 Form T-1 Statement of Eligibility of U.S. Bank Trust National
Association to act as trustee under the Senior Indenture.
25.2 Form T-1 Statement of Eligibity of The First National Bank of
Chicago to act as trustee under the Junior Subordinated
Indeture.
25.3 Form T-1 Statement of Eligibility of The First National Bank of
Chicago to act as trustee under the Amended and Restated Trust
Agreement of State Street Capital Trust I.
25.4 Form T-1 Statement of Eligibility of The First National Bank of
Chicago to act as trustee under the Amended and Restated Trust
Agreement of State Street Capital Trust II.
25.5 Form T-1 Statement of Eligibility of The First National Bank of
Chicago to act as trustee under the Amended and Restated Trust
Agreement of State Street Capital Trust III.
25.6 Form T-1 Statement of Eligibility of The First National Bank of
Chicago to act as trustee under the Guarantee for the benefit
of the holders of Preferred Securities of State Street Capital
Trust I.
25.7 Form T-1 Statement of Eligibility of The First National Bank of
Chicago to act as trustee under the Guarantee for the benefit
of the holders of Preferred Securities of State Street Capital
Trust II.
25.8 Form T-1 Statement of Eligibility of The First National Bank of
Chicago to act as trustee under the Guarantee for the benefit
of the holders of Preferred Securities of State Street Capital
Trust III.
</TABLE>
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ITEM 17. UNDERTAKINGS
Each of the undersigned Registrants hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of a Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
each Registrant pursuant to the provisions described under Item 15 above, or
otherwise, each Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by each Registrant of expenses incurred or paid by a director, officer
or controlling person of each Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, each
Registrant will, unless in the opinion of its counsel the matter has been
settled by the controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication
of such issue.
Each of the undersigned Registrants hereby also undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereto) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and 1(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by a Registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) To file an application for the purpose of determining the eligibility
of the trustee to act under subsection (a) of Section 310 of the Trust
Indenture Act in accordance with the rules and regulations prescribed by
the Commission under Section 305(b)(2) of the Act.
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<PAGE>
(5) That, for the purposes of determining any liability under the
Securities Act of 1933:
(i) The information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained
in the form of prospectus filed by the Registrants pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to
be part of this Registration Statement as of the time it was declared
effective.
(ii) Each post-effective amendment that contains a form of prospectus
shall be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
56
<PAGE>
SIGNATURES AND POWER OF ATTORNEY
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS
ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF BOSTON, COMMONWEALTH OF
MASSACHUSETTS, ON THE 31ST DAY OF MARCH, 1998.
State Street Corporation
/s/ Rex S. Schuette
By: _________________________________
REX S. SCHUETTE SENIOR VICE
PRESIDENT AND CHIEF ACCOUNTING
OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
In addition, the undersigned officers and directors of State Street
Corporation, hereby severally constitute and appoint Ronald L. O'Kelley, Rex
S. Schuette, and Maureen Scannell Bateman, and each of them singly, their true
and lawful attorneys with full power to them, and each of them singly, to sign
for us and in our names in the capacities indicated below, any and all
amendments (including post-effective amendments and any registration
statements relating to the same offering effective upon filing pursuant to
Rule 462(b)) or supplements to the Registration Statement on Form S-3 of State
Street Corporation, and generally to do all such things in our name and on our
behalf in our capacities indicated below to enable State Street Corporation to
comply with the provisions of the Securities Act of 1933, as amended, and all
requirements of the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be required by our said attorneys or any
of them, to any and all said amendments.
<TABLE>
<S> <C> <C>
SIGNATURE TITLE
DATE
/s/ Marshall N. Carter Chairman and Chief March 31, 1998
- ------------------------------------- Executive Officer
MARSHALL N. CARTER (Principal
Executive Officer)
/s/ Ronald L. O'Kelley Executive Vice March 31, 1998
- ------------------------------------- President, Chief
RONALD L. O'KELLEY Financial Officer
and Treasurer
(Principal
Financial Officer)
/s/ Rex S. Schuette Senior Vice March 31, 1998
- ------------------------------------- President and Chief
REX S. SCHUETTE Accounting Officer
(Principal
Accounting Officer)
</TABLE>
57
<PAGE>
<TABLE>
<S> <C> <C>
SIGNATURE TITLE
DATE
/s/ Tenley E. Albright Director March 19, 1998
- -------------------------------------
TENLEY E. ALBRIGHT
Director
- -------------------------------------
JOSEPH A BAUTE
/s/ I. MacAllister Booth Director March 19, 1998
- -------------------------------------
I. MACALLISTER BOOTH
/s/ James I. Cash Director March 19, 1998
- -------------------------------------
JAMES I. CASH
Director
- -------------------------------------
TRUMAN S. CASNER
Director
- -------------------------------------
NADER F. DAREHSHORI
/s/ Arthur L. Goldstein Director March 19, 1998
- -------------------------------------
ARTHUR L. GOLDSTEIN
/s/ David P. Gruber Director March 19, 1998
- -------------------------------------
DAVID P. GRUBER
/s/ Charles F. Kaye Director March 19, 1998
- -------------------------------------
CHARLES F. KAYE
/s/ John M. Kucharski Director March 19, 1998
- -------------------------------------
JOHN M. KUCHARSKI
</TABLE>
58
<PAGE>
<TABLE>
<S> <C> <C>
SIGNATURE TITLE
DATE
/s/ Charles R. LaMantia Director March 19, 1998
- -------------------------------------
CHARLES R. LAMANTIA
/s/ David B. Perini Director March 19, 1998
- -------------------------------------
DAVID B. PERINI
/s/ Dennis J. Picard Director March 19, 1998
- -------------------------------------
DENNIS J. PICARD
/s/ Alfred Poe Director March 19, 1998
- -------------------------------------
ALFRED POE
/s/ Bernard W. Reznicek Director March 19, 1998
- -------------------------------------
BERNARD W. REZNICEK
/s/ David A. Spina Director March 19, 1998
- -------------------------------------
DAVID A. SPINA
Director
- -------------------------------------
DIANE CHAPMAN WALSH
Director
- -------------------------------------
ROBERT E. WEISSMAN
</TABLE>
59
<PAGE>
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, STATE STREET
CAPITAL TRUST I CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT
MEETS ALL THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED IN THE CITY OF NEW YORK, AND THE STATE OF NEW YORK
ON THE 27TH DAY OF MARCH, 1998.
State Street Capital Trust I
/s/ James E. Murphy
By: _________________________________
Administrative Trustee
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, STATE STREET
CAPITAL TRUST II CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT
MEETS ALL THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED IN THE CITY OF NEW YORK, AND THE STATE OF NEW YORK
ON THE 27TH DAY OF MARCH, 1998.
State Street Capital Trust II
/s/ James E. Murphy
By: _________________________________
Administrative Trustee
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, STATE STREET
CAPITAL TRUST III CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT
MEETS ALL THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED IN THE CITY OF NEW YORK, AND THE STATE OF NEW YORK
ON THE 27TH DAY OF MARCH, 1998.
State Street Capital Trust III
/s/ James E. Murphy
By: _________________________________
Administrative Trustee
60
<PAGE>
Exhibit 4.15
INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, DATED AS OF 6-26-97
among State Street Corporation, duly organized and existing under the laws of
the Commonwealth of Massachusetts having its principal office at 225 Franklin
Street, Boston, Massachusetts (the "Company"), Fleet National Bank, a banking
corporation duly organized under the laws of the United States and having its
principal corporate trust office at One Federal Street, Boston, Massachusetts
(the "Resigning Trustee") and First Trust National Association, a national
banking association, having its principal corporate trust office at 180 East
Fifth Street, Saint Paul, Minnesota, 55101 (the "Successor Trustee").
RECITALS
--------
A. There are presently issued and outstanding $100,000,000 of the
Company's 5.95% Notes due September 15, 2003 and $150,000,000 of the Company's
7.35% Notes due June 15, 2026 under an Indenture, dated as of August 2, 1993
(the "Indenture"), between the Company and The First National Bank of Boston as
previous Trustee.
B. The Resigning Trustee wishes to resign as Trustee under the Indenture;
the Company wishes to appoint the Successor Trustee to succeed the Resigning
Trustee as Trustee under the Indenture; and the Successor Trustee wishes to
accept appointment as Trustee under the Indenture.
NOW THEREFORE, the Company, the Resigning Trustee and the Successor Trustee
agree as follows:
ARTICLE ONE
THE RESIGNING TRUSTEE
Section 101: Pursuant to Section 610 of the Indenture, the Resigning Trustee
- -----------
hereby notifies the Company that the Resigning Trustee has resigned as Trustee
under the Indenture.
Section 102: The Resigning Trustee hereby represents and warrants to the
- -----------
Successor Trustee that:
(a) To the best of the knowledge of the Responsible Officers of the
Resigning Trustee assigned to its Corporate Trust Department, no
Event of Default and no event which, after notice or lapse of
time or both, would become an Event of Default, had occurred and
is continuing under the Indenture;
(b) No covenant or condition contained in the Indenture has been
waived by the Resigning Trustee or by the Holders of the
percentage in aggregate principal amount of the Securities
required by the Indenture to effect any such waiver, and
(c) There is no action, suit or proceeding pending or, to the best of
the knowledge of the Responsible Officers of the Resigning
Trustee assigned to its Corporate Trust Department, threatened
against the Resigning Trustee before any court or governmental
authority arising out of any action or omission by the Resigning
Trustee, as Trustee under the Indenture.
<PAGE>
(d) It assumes continued responsibility for its actions or omissions
during its term as Trustee under the Indenture.
Section 103. The resigning Trustee hereby assigns, transfers, delivers and
- -----------
confirms to the Successor Trustee all right, title and interest of the Resigning
Trustee in and to the trust under the Indenture and all the rights, powers and
trusts of the Trustee under the Indenture. The Resigning Trustee shall execute
and deliver such further instruments and shall do such other things as the
Successor Trustee may reasonable require so as to more fully and certainly vest
and confirm in the Successor Trustee all the rights, trusts and powers hereby
assigned, transferred, delivered and confirmed to the Successor Trustee.
ARTICLE TWO
THE COMPANY
Section 201. The Company hereby certifies that the person signing this
- -----------
Instrument on behalf of the Company is authorized to, among other things: (a)
accept the Resigning Trustee's resignation as Trustee under the Indenture; (b)
appoint the Successor Trustee as Trustee under the Indenture; and (c) execute
and deliver such agreements and other instruments as may be necessary or
desirable to effectuate the succession of the Successor Trustee under the
Indenture.
Section 202. The Company hereby appoints the Successor Trustee as Trustee under
- -----------
the Indenture and confirms to the Successor Trustee all the rights, trusts and
powers hereby assigned, transferred, delivered and confirmed to the Successor
Trustee.
ARTICLE THREE
THE SUCCESSOR TRUSTEE
Section 301. The Successor Trustee hereby represents and warrants to the
- -----------
Resigning Trustee and to the Company that the Successor Trustee is qualified and
eligible under the provisions of Section 609 of the Indenture.
Section 302. The Successor Trustee hereby accepts its appointment as trustee
- -----------
under the Indenture and shall hereby be vested with all the rights, powers,
trusts and duties of the Trustee under the Indenture.
ARTICLE FOUR
MISCELLANEOUS
Section 401. 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 the Indenture.
Section 402. This Instrument and the resignation, appointment and acceptance
- -----------
affected hereby shall be effective as of the opening of business on the date
first above written upon the execution and delivery hereof by each of the
parties hereto.
<PAGE>
Section 403. Notwithstanding the resignation of the Resigning Trustee effected
- ------------
hereby, the Company shall remain obligated under Section 607 of the Indenture to
compensate, reimburse and indemnify the Resigning Trustee in connection with its
trusteeship under the Indenture.
Section 404. The Instrument shall be governed by and constructed in accordance
- ------------
with the laws of the jurisdiction which govern the Indenture and its
construction.
Section 405. This instrument 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 hereby have caused this
Instrument of Resignation, Appointment and Acceptance 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.
Attest: State Street Corporation
------------------------- (the "Company")
By: [SIGNATURE APPEARS HERE]
--------------------------
Attest: Fleet National Bank
------------------------- (the "Resigning Trustee")
By:
--------------------------
Attest: [SIGNATURE APPEARS HERE] First Trust National Association
------------------------- (the "Successor Trustee")
By: [SIGNATURE APPEARS HERE]
--------------------------
<PAGE>
Exhibit 4.16
- --------------------------------------------------------------------------------
STATE STREET BOSTON CORPORATION
TO
U.S. BANK TRUST NATIONAL ASSOCIATION
Trustee
-----------
INDENTURE
[Subordinated Securities]
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION................................................7
SECTION 101. Definitions.............................................7
SECTION 102. Compliance Certificates and Opinions...................14
SECTION 103. Form of Documents Delivered to Trustee.................15
SECTION 104. Acts of Holders; Record Dates..........................15
SECTION 105. Notices, Etc., to Trustee and Company..................17
SECTION 106. Notice to Holders; Waiver..............................18
SECTION 107. Conflict with Trust Indenture Act......................18
SECTION 108. Effect of Headings and Table of Contents...............18
SECTION 109. Successors and Assigns.................................18
SECTION 110. Separability Clause....................................19
SECTION 111. Benefits of Indenture..................................19
SECTION 112. Governing Law..........................................19
SECTION 113. Legal Holidays.........................................19
ARTICLE 2
SECURITY FORMS.......................................................20
SECTION 201. Forms Generally........................................20
SECTION 202. Form of Face of Security...............................20
SECTION 203. Form of Reverse of Security............................23
SECTION 204. Form of Legend for Global Securities...................27
SECTION 205. Form of Trustee's Certificate of Authentication........27
ARTICLE 3
THE SECURITIES.......................................................28
SECTION 301. Amount Unlimited; Issuable in Series...................28
SECTION 302. Denominations..........................................31
SECTION 303. Execution, Authentication, Delivery and Dating.........31
SECTION 304. Temporary Securities...................................33
SECTION 305. Registration, Registration of Transfer and Exchange....33
-2-
<PAGE>
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.......35
SECTION 307. Payment of Interest; Interest Rights Preserved.........36
SECTION 308. Persons Deemed Owners..................................37
SECTION 309. Cancellation...........................................37
SECTION 310. Computation of Interest................................38
ARTICLE 4
SATISFACTION AND DISCHARGE...........................................38
SECTION 401. Satisfaction and Discharge of Indenture................38
SECTION 402. Application of Trust Money.............................39
ARTICLE 5
REMEDIES.............................................................39
SECTION 501. Events of Default......................................39
SECTION 502. Acceleration of Maturity; Rescission and Annulment.....40
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.............................................41
SECTION 504. Trustee May File Proofs of Claim.......................44
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities..........................................45
SECTION 506. Application of Money Collected.........................45
SECTION 507. Limitation on Suits....................................45
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest...................................46
SECTION 509. Restoration of Rights and Remedies.....................46
SECTION 510. Rights and Remedies Cumulative.........................47
SECTION 511. Delay or Omission Not Waiver...........................47
SECTION 512. Control by Holders.....................................47
SECTION 513. Waiver of Past Defaults................................47
SECTION 514. Undertaking for Costs..................................48
SECTION 515. Waiver of Usury, Stay or Extension Laws................48
ARTICLE 6
THE TRUSTEE ........................................................ 49
SECTION 601. Certain Duties and Responsibilities....................49
SECTION 602. Notice of Defaults.....................................49
SECTION 603. Certain Rights of Trustee..............................49
SECTION 604. Not Responsible for Recitals or Issuance of
Securities.............................................50
SECTION 605. May Hold Securities....................................50
-3-
<PAGE>
SECTION 606. Money Held in Trust....................................50
SECTION 607. Compensation and Reimbursement.........................50
SECTION 608. Conflicting Interests..................................51
SECTION 609. Corporate Trustee Required; Eligibility................51
SECTION 610. Resignation and Removal; Appointment of Successor......51
SECTION 611. Acceptance of Appointment by Successor.................53
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business............................................54
SECTION 613. Preferential Collection of Claims Against Company......54
SECTION 614. Appointment of Authenticating Agent....................55
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY....................56
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders.............................................56
SECTION 702. Preservation of Information; Communications to
Holders................................................57
SECTION 703. Reports by Trustee.....................................57
SECTION 704. Reports by Company.....................................58
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.................58
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms...58
SECTION 802. Successor Substituted..................................59
ARTICLE 9
SUPPLEMENTAL INDENTURES..............................................59
SECTION 901. Supplemental Indentures Without Consent of Holders.....59
SECTION 902. Supplemental Indentures With Consent of Holders........60
SECTION 903. Execution of Supplemental Indentures...................61
SECTION 904. Effect of Supplemental Indentures......................62
SECTION 905. Conformity with Trust Indenture Act....................62
SECTION 906. Reference in Securities to Supplemental Indentures.....62
SECTION 907. Entitled Persons.......................................62
ARTICLE 10
COVENANTS............................................................63
SECTION 1001. Payment of Principal, Premium and Interest............63
-4-
<PAGE>
SECTION 1002. Maintenance of Office or Agency.......................63
SECTION 1003. Money for Securities Payments to Be Held in Trust.....63
SECTION 1004. Statement by Officers as to Default...................64
SECTION 1005. Existence.............................................65
SECTION 1006. Maintenance of Properties.............................65
SECTION 1007. Payment of Taxes and Other Claims.....................65
SECTION 1008. Waiver of Certain Covenants...........................65
ARTICLE 11
REDEMPTION OF SECURITIES.............................................66
SECTION 1101. Applicability of Article..............................66
SECTION 1102. Election to Redeem; Notice to Trustee.................66
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.....66
SECTION 1104. Notice of Redemption..................................67
SECTION 1105. Deposit of Redemption Price...........................68
SECTION 1106. Securities Payable on Redemption Date.................68
SECTION 1107. Securities Redeemed in Part...........................69
ARTICLE 12
SINKING FUNDS........................................................69
SECTION 1201. Applicability of Article..............................69
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities............................................69
SECTION 1203. Redemption of Securities for Sinking Fund.............70
ARTICLE 13
DEFEASANCE AND COVENANT DEFEASANCE...................................70
SECTION 1301. Company's Option to Effect Defeasance or Covenant
Defeasance............................................70
SECTION 1302. Defeasance and Discharge..............................70
SECTION 1303. Covenant Defeasance...................................71
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.......71
SECTION 1305. Deposited Money and U.S. Government Obligations to
Be Held in Trust; Miscellaneous Provisions............74
SECTION 1306. Reinstatement.........................................74
ARTICLE 14
-5-
<PAGE>
SUBORDINATION OF SECURITIES..........................................75
SECTION 1401. Agreement That Securities be Subordinate..............75
SECTION 1402. Subordination to Senior Indebtedness..................75
SECTION 1403. Payment of Senior Indebtedness of Certain
Amounts Received by Securityholders...................77
SECTION 1404. Notice to Trustee of Specified Events; Reliance on
Certificate of Liquidating Agent......................77
SECTION 1405. Subrogation...........................................78
SECTION 1406. Obligation to Pay Not Impaired........................78
SECTION 1407. Reliance by Senior Indebtedness on Subordination
Provisions............................................79
SECTION 1408. Certain Payments and Credits Permitted................79
SECTION 1409. Subordination Not to be Prejudiced by Certain Acts....79
SECTION 1410. Trustee Authorized to Effectuate Subordination........80
SECTION 1411. Trustee's Rights Regarding Senior Indebtedness Held
by It.................................................80
SECTION 1412. Trustee and Paying Agents Not Chargeable with
Knowledge Until Notice................................80
SECTION 1413. Limitation on Securing Securities.....................81
SECTION 1414. Limitation on Premature Deposit of Funds..............81
SECTION 1415. Securities to Rank Pari Passu with Existing
Subordinated Indebtedness.............................81
-6-
<PAGE>
SUBORDINATED INDENTURE, dated as of _________, ___, between State
Street Corporation, a corporation duly organized and existing under the laws of
the Commonwealth of Massachusetts (herein called the "Company"), having its
principal office at 225 Franklin Street, Boston, Massachusetts, and U.S. Bank
Trust National Association, a national banking association duly organized and
existing under the laws of the United States of America, as Trustee (herein
called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series hereof, as
follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles"
-7-
<PAGE>
with respect to any computation required or permitted hereunder shall
mean such accounting principles as are generally accepted at the date
of such computation;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to the act on behalf of the Trustee to authenticate
Securities of one or more series.
"Bank" means State Street Bank and Trust Company and its successors
(whether by consolidation, merger, conversion or transfer of substantially all
their assets and business or otherwise) so long as State Street Bank or any
successor is a Subsidiary.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Clerk
or an Assistant Clerk of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
-8-
<PAGE>
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Clerk or an Assistant Clerk, and delivered to the
Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
the City of St. Paul, Minnesota at which at any particular time its corporate
trust business shall be administered.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Default" has the meaning specified in Section 503.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depository" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Exchange Act that is designated to act as Depositary
for such Securities as contemplated by Section 301.
"Entitled Persons" means any Person entitled to payment pursuant to the
terms of Other Financial Obligations (as defined herein).
"Event of Default" has the meaning specified in Section 501.
"Excess Proceeds" has the meaning specified in Section 1415.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Existing Subordinated Indebtedness" means the 7 3/4% Convertible
Subordinated Debentures Due 2008.
"Expiration Date" has the meaning specified in Section 104.
"FDIC" means the Federal Deposit Insurance Corporation and any
successor thereto.
-9-
<PAGE>
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount
security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and
any statute successor thereto, in each case as amended from time to time.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an instalment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 503(3)(D) or 503(3)(E).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Clerk or an Assistant Clerk, of
the Company, and delivered to the Trustee. One of the officers signing an
Officers' Certificate given pursuant to Section 1004 shall be the principal
executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
-10-
<PAGE>
"Other Financial Obligations" means, unless otherwise determined with
respect to any series of Securities pursuant to Section 301, (1) obligations of
the Company under direct credit substitutes, (2) obligations of, or any
obligation directly or indirectly guaranteed by, the Company for purchased money
or funds, (3) any deferred obligation of, or any such obligation directly or
indirectly guaranteed by, the Company incurred in connection with the
acquisition by the Company of assets and (4) all obligations of the Company 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, foreign exchange rate agreements, options,
commodity futures contracts and commodity options contracts and (c) financial
instruments similar to those set forth in (4)(a) or (4)(b) above; provided,
however, that Other Financial Obligations shall not include (A) obligations on
account of Senior Indebtedness and (B) obligations on account of indebtedness of
borrowed money ranking pari passu with or subordinate to the Securities,
including, without limitation, Existing Subordinated Indebtedness.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected
pursuant to Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hand such Securities are valid obligations
of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
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acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other action, only Securities which the Trustee knows
to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
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"Responsible Officer", when used with respect to the Trustee, means any
officer in Corporate Trust Office or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means the principal of and premium, if any, and
interest on (1) indebtedness (other than the Securities), whether or not secured
and whether heretofore or hereafter incurred (A) for borrowed money or (B)
incurred in connection with the acquisition by the Company of assets other than
in the ordinary course of business, in each case described in clauses (A) or (B)
for the payment of which the Company (or any corporation or Person which becomes
a successor to the Company pursuant to Article Eight) is liable directly or
indirectly by guarantee, letter of credit, obligation to purchase or acquire or
otherwise, unless the terms of this instrument evidencing such indebtedness or
pursuant to which such indebtedness is issued specifically provided that such
indebtedness is not superior in right of payment to the Securities or ranks pari
passu with the Securities, and (2) renewals, extensions or deferrals of any such
indebtedness.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act
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of 1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section 1304.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for certificates
provided for in Section 1004) shall include,
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given, made or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or
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affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be provided in any other manner which the
Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be canceled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities of the relevant series on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the
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requisite principal amount of Outstanding Securities of such series on such
record date. Nothing in this paragraph shall be construed to prevent the Trustee
from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be canceled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Trustee,
at the Company's expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be given to the Company
in writing and to each Holder of Securities of the relevant series in the manner
set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Division, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
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office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
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All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successor
hereunder, the holders of Senior Indebtedness and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity.
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ARTICLE 2
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such form as shall be established by or pursuant to
a Board Resolution or in one or more indenture supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
or Depositary thereof or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution thereof. If
the form of Securities of any series is established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Clerk or an Assistant Clerk of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
303 for the authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 202. Form of Face of Security.
..................................................
.............................................................
No. ....... $........
State Street Corporation, a corporation duly organized and existing
under the laws of The Commonwealth of Massachusetts (herein called the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
___________________, or registered assigns, the principal sum of
________________ Dollars on ______________________ [if the Security is to bear
interest prior to Maturity, insert --, and to pay interest thereon from _______
or from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on _____ and ______ in each year, commencing
_________, at the rate of ____% per annum, until the principal hereof is paid
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or made available for payment [if applicable, insert --, provided that any
principal and premium, and any such instalment of interest, which is overdue
shall bear interest at the rate of ___% per annum (to the extent that the
payment of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for payment, and such
interest shall be payable on demand]. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the ____ or ______
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ___% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the rate
of ___% per annum (to the extent that the payment of such interest on interest
shall be legally enforceable), from the date of such demand until the amount so
demanded is paid or made available for payment. Interest on any overdue interest
shall be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in _____, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert --;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
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Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
-------------------------------
By
-----------------------------
Attest:
- ------------
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SECTION 203. Form of Reverse of Security
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of _________, 1996 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and U.S. Bank Trust National Association, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), and reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee, the holder of Senior Debt and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [if applicable, insert --, limited in aggregate
principal amount of $_____].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
(1) on _____ in any year commencing with the year ______ and ending with the
year ______ through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert -- on or after ____ , 19__], as a whole or in part, at the
election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [if applicable insert -- on or
before ______, __%, and if redeemed] during the 12-month period beginning ______
of the years indicated,
Redemption Redemption
Year Price Year Price
- ---- ---------- ---- ----------
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on _____ in any year
commencing with the year ____ and ending with the year _____ through operation
of the sinking fund for this series at the
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Redemption Prices redemption through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below, and (2) at
any time [if applicable, insert -on or after ______], as a whole or in part, at
the election of the Company, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount, set forth in the table below: If redeemed during the 12- month
period beginning ______ of the years indicated,
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- ---- ----------------- -------------------------
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Company
may not, prior to ______, redeem any Securities of this series as contemplated
by [if applicable, insert -- Clause (2) of] the preceding paragraph as a part
of, or in anticipation of, any refunding operation by the application, directly
or indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than __% per annum.]
[If applicable, insert -- The sinking fund for this series provides for
the redemption on ______ in each year beginning with the year _____ and ending
with the year _____ of [if applicable, insert -- not less than $____ ("mandatory
sinking fund") and not more than ] $_____ aggregate principal amount of
Securities of this series. Securities of this series acquired or redeemed by the
Company otherwise than through [if applicable, insert -- mandatory] sinking fund
payments may be credited against subsequent [if applicable, insert -- mandatory]
sinking fund payments otherwise required to be made [if applicable, insert --,
in the inverse order in which they become due].]
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[If the Security is subject to redemption of any kind, insert -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full both or all Senior Indebtedness and Other Financial Obligations
of the Company. The Securities will rank pari passu with Existing Subordinated
Indebtedness of the Company, subject to the holders of the Securities being
obligated to pay over any Excess Proceeds to Entitled Persons in respect of
Other Financial Obligations as described in the Indenture. Each Holder of this
Security, by accepting the same, (i) agrees to and shall be bound by such
provisions, (ii) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (iii) appoints the Trustee his attorney-in-fact for any and all
such purposes.]
[Payment of principal on the Securities may be accelerated only in the
case of certain events involving the bankruptcy, insolvency or reorganization of
the Company. There is no right of acceleration in the case of a default in the
performance of any covenant of the Company, including the payment of principal
or interest. In case a Default with respect to this Security shall occur and be
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the holders of the Securities through appropriate
judicial proceedings. The Indenture defines a Default to include, without
limitation, default in the payment of principal of these Securities when due and
default for 30 days in any payment of interest on any Security of this series.]
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance with certain conditions set forth in
the Indenture.]
[If the Security is not an Original Issue Discount Security, insert --
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect
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of the payment of the principal of and premium and interest, if any, on the
Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provision of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one
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or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $______ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
SECTION 204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
SECTION 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially
the following form:
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This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
---------------------------,
As Trustee
By
---------------------------
Authorized Officer
ARTICLE 3
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107
and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest;
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(4) the date or dates on which the principal of any
Securities of the series is payable;
(5) the rate or rates at which any Securities of the series
shall bear interest, if any, the date or dates from which any such
interest shall accrue, the Interest Payment Dates on which such
interest shall be payable and the Regular Record Date for any such
interest payable on any Interest Payment Date;
(6) the place or places where the principal of and any
premium and interest on any Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which any Securities of the
series may be redeemed, in whole or in part, at the option of the
Company and, if other than by a Board Resolution, the manner in which
any election by the Company to redeem the Securities shall be
evidenced;
(8) the obligation, if any, of the Company to redeem or
purchase any Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of the Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which any Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Securities of the
series shall be issuable;
(10) if the amount of principal of or any premium or interest
on any Securities of the series may be determined with reference to an
index or pursuant to a formula, the manner in which such amounts shall
be determined;
(11) if other than the currency of the United States of
America, the currency, currencies or currency units in which the
principal of or any premium or interest on any Securities of the series
shall be payable and the manner of determining the equivalent thereof
in the currency of the United States of America for any purpose,
including for purposes of the definition of "Outstanding" in Section
101;
(12) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or the Holder thereof, in one or more currencies or currency
units other than that or those in which such Securities are stated to
be payable, the currency, currencies or currency units in which the
principal of or any premium or interest on such Securities as to which
such election is made shall be payable, the periods within which and
the terms and conditions upon which such election is to be made and the
amount so payable (or the manner in which such amount shall be
determined);
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(13) if other than the entire principal amount thereof, the
portion of the principal amount of any Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
(14) if the principal amount payable at the Stated Maturity of
any Securities of the series will not be determinable as of any one or
more dates prior to the Stated Maturity, the amount which shall be
deemed to be the principal amount of such Securities as of any such
date for any purpose thereunder or hereunder, including the principal
amount thereof which shall be due and payable upon any Maturity other
than the Stated Maturity or which shall be deemed to be Outstanding as
of any date prior to the Stated Maturity (or, in any such case, the
manner in which such amount deemed to be the principal amount shall be
determined);
(15) if applicable, that the Securities of the series, in
whole or any specified part, shall be defeasible pursuant to Section
1302 or Section 1303 or both such Sections and, if other than by a
Board Resolution, the manner in which any election by the Company to
defease such Securities shall be evidenced;
(16) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositaries for such
Global Securities, the form of any legend or legends which shall be
borne by any such Global Security in addition to or in lieu of that set
forth in Section 204 and any circumstances in addition to or in lieu of
those set forth in Clause (2) of the last paragraph of Section 305 in
which any such Global Security may be exchanged in whole or in part for
Securities registered, and any transfer of such Global Security in
whole or in part may be registered, in the name or names of Person
other than the Depositary for such Global Security or a nominee
thereof;
(17) any addition to or change in the Events of Default which
applies to any Securities of the series and any change in the right of
the Trustee or the requisite Holders of such Securities to declare the
principal amount thereof due and payable pursuant to Section 502;
(18) any addition to or change in the covenants set forth in
Article Ten which applies to Securities of the series; and
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to
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above and (subject to Section 303) set forth, or determined in the manner
provided, in the Officers' Certificate referred to above or in any such
indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Clerk or an Assistant Clerk of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Fourteen. The Securities shall not be
superior in right of payment to and shall rank pari passu with the Existing
Subordinated Indebtedness, subject to the Company's obligation to pay over
Excess Proceeds to Entitled Persons in respect of Other Financial Obligations.
SECTION 302. Denominations.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by its
Clerk or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture
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in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(1) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
(3) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
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SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. [State Street Bank
and Trust Company, a trust company organized and existing under the laws of the
commonwealth of Massachusetts and having its principal office at 225 Franklin
Street, Boston, Massachusetts is hereby appointed "Security Registrar"] and the
Trustee is hereby initially appointed a CoSecurity Registrar, in each case for
the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security of a series
at the office or agency of the Company in a Place of Payment for that series,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Securities
of the same series, of any authorized denominations and of like tenor and
aggregate principal amount.
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At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company shall not be required (A) to issue,
register the transfer of or exchange any Securities of that series (or of that
series and specified tenor, as the case may be) during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 1103 and
ending at the close of business on the day of such mailing, or (B) to register
the transfer of or exchange any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only
to Global Securities:
(1) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated for such
Global Security or a nominee thereof and delivered to such Depositary
or a nominee thereof or custodian therefor, and each such Global
Security shall constitute a single Security for all purposes of this
Indenture.
(2) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the Depositary
for such Global Security or a nominee thereof unless (A) such
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Depositary (i) has notified the Company that it is unwilling or unable
to continue as Depositary for such Global Security or (ii) has ceased
to be a clearing agency registered under the Exchange Act, (B) there
shall have occurred and be continuing an Event of Default with respect
to such Global Security or (C) there shall exist such circumstances, if
any, in addition to or in lieu of the foregoing as have been specified
for this purpose as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for a Global Security or any portion
thereof shall be registered in such names as the Depositary for such
Global Security shall direct.
(4) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Security or any portion thereof, whether pursuant to this Section,
Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and
delivered in the form of, and shall be, a Global Security, unless such
Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
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Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons on whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause
notice to the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be given to each Holder of Securities
of such series in the manner set forth in Section
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106, not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons on whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of any premium and
(subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
canceled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section,
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except as expressly permitted by this Indenture. All canceled Securities held by
the Trustee shall be disposed of as directed by a Company Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306 and (ii) Securities for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee
for cancellation; or
(B) all such Securities not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
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Company, and the Company, in the case of (i), (ii) or
(iii) above, has deposited or caused to be deposited
with the Trustee as trust funds in trust for the
purpose money in an amount sufficient to pay and
discharge the entire indebtedness on such Securities
not theretofore delivered to the Trustee for
cancellation, for principal and any premium and
interest to the date of such deposit (in the case of
Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case
may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE 5
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be occasioned by the provisions of Article
Fourteen or be voluntary or involuntary or be
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effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(1) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property
(other than the appointment of a conservator with respect to any
depository institution Subsidiary of the Company), or ordering the
winding up or liquidation of its affairs, and the continuance of any
such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days; or
(2) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property
(other than the appointment of a conservator with respect to any
depository institution Subsidiary of the Company), or the making by it
of an assignment for the benefit of creditors, or the admission by it
in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company in furtherance of
any such action; or
(3) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(1) or 501(2)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of that
series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) to be due and
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payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or
specified amount) shall become immediately due and payable. If an Event of
Default specified in Section 501(1) or 501(2) with respect to Securities of any
series at the time Outstanding occurs, the principal amount of all the
Securities of that series (or, if any Securities of that series are Original
Issue Discount Securities, such portion of the principal amount of such
Securities as may be specified by the terms thereof) shall automatically, and
without any declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and any interest thereon
at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
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(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal, including any sinking fund payment or analogous
obligations (and premium, if any) and interest and, to the extent that payment
of such interest shall be legally enforceable, interest on any overdue principal
(and premium, if any) and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Security or Securities and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
(3) "Default", wherever used herein with respect to Securities
of any series, means any one of the following events (whatever the
reason for such Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(A) an Event of Default with respect to any
Securities of that series specified in Section 501; or
(B) the events referred to in subsections 503(1)
through (2) above with respect to any Securities of that
series; or
(C) default in the deposit of any sinking fund
payment, when and as due by the terms of a Security of that
series; or
(D) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other
than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section specifically dealt
with or which has expressly been included in this Indenture
solely for the benefit of series of Securities other than that
series); and continuance of such default or breach for a
period of 60 days after there has been given, by registered or
certified
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mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 10% in principal amount of
the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(E) an event of default under any bond, debenture,
note or other evidence of indebtedness for money borrowed by
the Company or the Bank (including a default with respect to
Securities of any series other than that series) having an
aggregate principal amount outstanding of at least
$20,000,000, or under any mortgage, indenture or instrument
(including this Indenture) under which there may be issued or
by which there may be secured or evidenced any indebtedness
for money borrowed by the Company or the Bank having an
aggregate principal amount outstanding of at least
$20,000,000, whether such indebtedness now exists or shall
hereafter be created, which default (A) shall constitute a
failure to pay any portion of the principal of such
indebtedness when due and payable after the expiration of any
applicable grace period with respect thereto or (B) shall have
resulted in such indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise have
become due and payable, without, in the case of Clause (A),
such indebtedness having been discharged or without, in the
case of Class (B), such indebtedness having been discharged or
such acceleration having been rescinded or annulled, in each
such case within a period of 30 days after there shall have
been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders
of at least 10% in principal amount of the Outstanding
Securities of that series a written notice specifying such
default and requiring the Company to cause such indebtedness
to be discharged or cause such acceleration to be rescinded or
annulled, as the case may be, and stating that such notice is
a "Notice of Default" hereunder; provided, however, that,
subject to the provisions of Sections 601 and 602, the Trustee
shall not be deemed to have knowledge of such default unless
either (A) a Responsible Officer of the Trustee shall have
actual knowledge of such default or (B) the Trustee shall have
received written notice thereof from the Company, from any
Holder, from the holder of any such indebtedness or from the
trustee under any such mortgage, indenture or other
instrument; or
(F) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the
Bank in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Bank
a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Bank under any applicable
Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar
official or of any substantial part of the property of the
Bank (other than the appointment of a conservator with respect
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to any depositary institution Subsidiary of the Bank), or
ordering the winding up or liquidation of the affairs of the
Bank and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in
effect for a period of 60 consecutive days; or
(G) the commencement by the Bank of a voluntary case
or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or
of any other case or proceeding to be adjudicated a bankrupt
or insolvent, or the consent by it to the entry of a decree or
order for relief in respect of the Bank in an involuntary case
or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or
proceeding against the Bank or the filing by the Bank of a
petition or answer or consent seeking reorganization of relief
under any applicable Federal or State law, or the consent by
the Bank to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the
Bank or of any substantial part of the property of the Bank
(other than the appointment of a conservator with respect to
any depositary institution Subsidiary of the Bank), or the
making by the Bank of an assignment for the benefit of
creditors pursuant to applicable state law, or the admission
by it in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the
Bank in furtherance of any such action; or
(H) any other Default provided with respect to
Securities of that series.
If a Default with respect to Securities of any series occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments directly to
the
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Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607; and
SECOND: Subject to Article Fourteen, to the payment of the amounts then
due and unpaid for principal of and any premium and interest on the
Securities in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for
principal and any premium and interest, respectively.
SECTION 507. Limitation on Suits.
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No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case,
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subject to any determination in such proceeding, the Company, the Trustee and
the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Default shall impair any such
right or remedy or constitute a waiver of any such Default or any acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such services, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
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The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company.
SECTION 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE 6
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
503(3)(D) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, a Default with respect to
Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order,
and any resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution;
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(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney; and
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
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The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
SECTION 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
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interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee with respect to the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
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(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
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In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
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No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trustee
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section,
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the combined capital and surplus of such Authenticating Agent shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trustee business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
............................
As Trustee
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By...................................................,
As Authenticating Agent
By...................................................,
Authorized Officer
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than 15 days after each Regular Record
Date in each year, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Securities of each
series as of such Regular Record Date, and
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
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Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
Reports so required to be transmitted at stated intervals of not more
than 12 months shall be transmitted no later than July 15 in each calendar year,
commencing in __________.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
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(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, the Person formed by such consolidation or
into which the Company is merged or the Person which acquires by conveyance
or transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and any premium and interest on all
the Securities and the performance or observance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or any
Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Default, and
no event which, after notice or lapse of time or both, would become a
Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by this Indenture, the Company or
such successor Person, as the case may be, shall take such steps as shall
be necessary effectively to secure the Securities equally and ratably with
(or prior to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
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ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Defaults or Events of Default for the benefit
of the Holders of all or any series of Securities (and if such additional
Defaults or Events of Default are to be for the benefit of less than all
series of Securities, stating that such additional Defaults or Events of
Default are expressly being included solely for the benefit of such
series); or
(4) to add or to change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (A) shall neither (i) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii) modify the
rights of the Holder of any such Security with respect to such provision or
(B) shall become effective only when there is no such Security Outstanding;
or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
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(8) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series
and to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
611; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action pursuant
to this Clause (9) shall not adversely affect the interests of the Holders
of Securities of any series.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than 662/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any instalment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security or any other Security which would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change any Place of Payment where, or the coin
or currency in which, any Security or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or modify the provisions of
this Indenture with respect to the subordination of the Securities in a
manner adverse to the Holders, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture
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cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that this clause
shall not be deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant changes in this
Section and Section 1008, or deletion of this proviso, in accordance with
the requirements of Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders or Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
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Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
SECTION 907. Entitled Persons.
Notwithstanding any provision in this Indenture or otherwise, the
rights of Entitled Persons in respect of Other Financial Obligations under this
Indenture and otherwise in respect of the Securities or any series of the
Securities may, at any time and from time to time, be modified in any respect or
eliminated without the consent of any Entitled Person in respect of Other
Financial Obligations.
ARTICLE 10
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
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The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security
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of any series and remaining unclaimed for two years after such principal,
premium or interest has become due and payable shall be paid to the Company on
Company Request, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, The City of
New York, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be prepaid
to the Company.
SECTION 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of the Bank and the rights (charter and statutory) and
franchises of the Company and of the Bank; provided, however, that the Company
shall not be required to preserve any such right or franchise if the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and the Bank taken as a whole, and that
the loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
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properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
SECTION 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1008. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for
Securities of such series, the Company may, with respect to the Securities of
any series, omit in any particular instance to comply with any term, provision
or condition set forth in any covenant provided pursuant to Section 301(18),
901(2) or 901(7) for the benefit of the Holders of such series if before the
time for such compliance the Holders of at least 662/3% in principal amount of
the Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision 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 term, provision or condition shall
remain in full force and effect.
ARTICLE 11
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
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Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance with
this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution or in another manner specified as contemplated by Section 301
for such Securities. In case of any redemption at the election of the Company of
less than all the Securities of any series (including any such redemption
affecting only a single Security), the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Securities of such series to be redeemed and, if applicable,
of the tenor of the Securities to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series, provided that
the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects only
a single Security), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption as aforesaid and, in case of any Securities selected for
partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect
to any redemption affecting only a single security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part, the
unredeemed portion of the principal
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amount of the Security shall be in an authorized denomination (which shall not
be less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the principal amount of
the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security is to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
SECTION 1105. Deposit of Redemption Price.
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Prior to any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities which
are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as required by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE 12
SINKING FUNDS
SECTION 1201. Applicability of Article.
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The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Securities is herein referred to as a "mandatory sinking fund payment", and
any payment in excess of such minimum amount provided for by the terms of such
Securities is herein referred to as an "option sinking fund payment". If
provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities as provided for by
the terms of such Securities.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
option sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect
to any Securities of such series required to be made pursuant to the terms of
such Securities as and to the extent provided for by the terms of such
Securities; provided that the Securities to be so credited have not been
previously so credited. The Securities to be so credited shall be received and
credited for such purpose by the Trustee at the Redemption Price, as specified
in the Securities so to be redeemed, for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days prior to each such sinking fund payment date,
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
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ARTICLE 13
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance
The Company may elect, at its option at any time, to have Section 1302 or
Section 1303 applied to any Securities or any series of Securities, as the case
may be, designated pursuant to Section 301 as being defeasible pursuant to such
Section 1302 or 1303, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced by a Board Resolution or
in another manner specified as contemplated by Section 301 for such Securities.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations, and the
provisions of Article Fourteen shall cease to be effective, with respect to such
Securities as provided in this Section on and after the date the conditions set
forth in Section 1304 are satisfied (hereinafter called "Defeasance"). For this
purpose, such Defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Securities and to have
satisfied all its other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), subject to
the following which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of such Securities to receive, solely from
the trust fund described in Section 1304 and as more fully set forth in such
Section, payments in respect of the principal of and any premium and interest on
such Securities when payments are due, (2) the Company's obligations with
respect to such Securities under Sections 304, 305, 306, 1002 and 1003, (3) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (4)
this Article. Subject to compliance with this Article, the Company may exercise
its option (if any) to have this Section applied to any Securities
notwithstanding the prior exercise of its option (if any) to have Section 1303
applied to such Securities.
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, (1)
the Company shall be released from its obligations under Section 801(3),
Sections 1006 through 1008, inclusive, and any covenants provided pursuant to
Section 301(18), 901(2) or 901(7) for the benefit of the Holders of such
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Securities and (2) the occurrence of any event specified in Section 501(4) (with
respect to any of Section 801(3), Sections 1006 through 1008, inclusive, and any
such covenants provided pursuant to Section 301(18), 901(2) or 901(7)), and the
occurrence of any event specified pursuant to Section 501(3) shall be deemed not
to be or result in an Event of Default and (3) the provisions of Article
Fourteen shall cease to be effective, in each case with respect to such
Securities as provided in this Section on and after the date the conditions set
forth in Section 1304 are satisfied (hereinafter called "Covenant Defeasance").
For this purpose, such Covenant Defeasance means that, with respect to such
Securities, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such specified
Section (to the extent so specified pursuant to Section 501(3)) or Article
Fourteen, whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or Article or by reason of any reference in any such
Section or Article to any other provision herein or in any other document, but
the remainder of this Indenture and such Securities shall be unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1302 or
Section 1303 to any Securities or any series of Securities, as the case may be:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefits of the Holders of such
Securities, (A) money in an amount, or (B) U.S. Government Obligations
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of and any premium
and interest on such Securities on the respective Stated Maturities, in
accordance with the terms of this Indenture and such Securities. As used
herein, "U.S. Government Obligation" means (x) any security which is (i) a
direct obligation of the United States of America for the payment of which
the full faith and credit of the United States of America is pledged or
(ii) an obligation of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the payment of
which is unconditionally guaranteed as a full faith and credit obligation
by the United States of America, which, in either case (i) or (ii), is not
callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any U.S. Government Obligation
which is specified in Clause (x) above and held by such bank for the
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account of the holder of such depositary receipt, or with respect to any
specific payment of principal of or interest on any U.S. Government
Obligation which is so specified and held, provided that (except as
required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depositary receipt from any
amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest evidenced by
such depositary receipt.
(2) In the event of an election to have Section 1302 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (A)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this instrument, there
has been a change in the applicable Federal income tax law, in either case
(A) or (B) to the effect that, and based thereon such opinion shall confirm
that, the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to such Securities and will be
subject to Federal income tax on the same amount, in the same manner and at
the same times as would be the case if such deposit, Defeasance and
discharge were not to occur.
(3) In the event of an election to have Section 1303 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit and Covenant
Defeasance to be effected with respect to such Securities and will be
subject to Federal income tax on the same amount, in the same manner and at
the same times as would be the case if such deposit and Covenant Defeasance
were not to occur.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, a Default with respect to such Securities or any other Securities
shall have occurred and be continuing at the time of such deposit or, with
regard to any such event specified in Sections 501(1) and (2), at any time
on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after
such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of the Trust Indenture
Act (assuming all Securities are in default within the meaning of such
Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a breach
or violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
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(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act unless such trust shall be
registered under such Act or exempt from registration thereunder.
(9) At the time of such deposit, (A) no default in the payment of any
principal of or premium or interest on any Senior Indebtedness shall have
occurred and be continuing, (B) no event of default with respect to any
Senior Indebtedness shall have resulted in such Senior Indebtedness
becoming, and continuing to be, due and payable prior to the date on which
it would otherwise have become due and payable (unless payment of such
Senior Indebtedness has been made or duly provided for), and (C) no other
event of default with respect to any Senior Indebtedness shall have
occurred and be continuing permitting (after notice or lapse of time or
both) the holders of such Senior Indebtedness (or a trustee on behalf of
such holders) to declare such Senior Indebtedness due and payable prior to
the date on which it would otherwise have become due and payable.
(10) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 1305. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for the purposes of this Section
and Section 1306, the Trustee and any other such trustee are referred to
collectively as the "Trustee") pursuant to Section 1304 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law. Money and U.S. Government
Obligations so held in trust shall not be subject to the provisions of Article
Fourteen.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government
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Obligations held by it as provided in Section 1304 with respect to any
Securities which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect the Defeasance or Covenant Defeasance, as the case may be,
with respect to such Securities.
SECTION 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1302 or 1303 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1305 with respect to such Securities
in accordance with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Company shall be subrogated
to the rights (if any) of the Holders of such Securities to receive such payment
from the money so held in trust.
ARTICLE 14
SUBORDINATION OF SECURITIES
SECTION 1401. Agreement That Securities be Subordinate.
The Company covenants and agrees, and each Holder of a Security issued
hereunder by his acceptance thereof likewise covenants and agrees, that all
Securities issued hereunder shall be issued subject to the provisions of this
Article; and each Person holding any Security, whether upon original issue or
upon transfer or assignment thereof, accepts and agrees to be bound by such
provisions. The provisions of this Article constitute a continuing offer to all
persons who, in reliance upon such provisions, become holders of, or continue to
hold, Senior Indebtedness, and such provisions are made for the benefit of the
holders of Senior Indebtedness, and such holders are hereby made obligees
hereunder the same as if their names were written herein as such, and they
and/or each of them may proceed to enforce such provisions.
SECTION 1402. Subordination to Senior Indebtedness.
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Anything in this Indenture or in any Security to the contrary
notwithstanding, the indebtedness evidenced by each Security shall be
subordinate and junior, to the extent and in the manner hereinafter set forth,
to all Senior Indebtedness:
(1) In the event of any insolvency or bankruptcy proceedings, and any
receivership, liquidation, reorganization, or other similar proceedings in
connection therewith, relative to the Company or to all or substantially
all its property, and in the event of any proceedings for voluntary
liquidation, dissolution, or other winding up of the Company, whether or
not involving insolvency or bankruptcy, then the holders of Senior
Indebtedness shall be entitled to receive payment in full of all principal
of (and premium, if any) and interest on all Senior Indebtedness before the
Holders of the Securities are entitled to receive any payment on account of
principal of (or premium, if any) or interest on the Securities, and to
that end (but subject to the power of a court of competent jurisdiction to
make other equitable provision reflecting the rights conferred by these
subordination provisions upon the Senior Indebtedness and the holders
thereof with respect to the subordinated indebtedness represented by the
Securities and the Holders thereof by a lawful plan of reorganization under
applicable bankruptcy law) the holders of Senior Indebtedness shall be
entitled to receive for application in payment thereof any payment or
distribution of any kind or character, whether in cash or property or
securities, which may be payable or deliverable in any such proceedings in
respect of the Securities, except securities which are subordinate and
junior in right of payment to the payment of all Senior Indebtedness then
outstanding;
(2) Without in any way limiting the effect of the foregoing provisions,
during the continuance of any default in the payment of principal of (or
premium, if any) or interest on any Senior Indebtedness, no payment of
principal (or premium, if any) or interest shall be made on or with respect
to the indebtedness evidenced by any Security, or any renewals or
extensions thereof, if (a) notice of such default in writing or by telegram
has been given to the Company by any holder or holders of any Senior
Indebtedness, provided that judicial proceedings shall be commenced with
respect to such default within 180 days thereafter, or (b) judicial
proceedings shall be pending in respect of such default; but except under
the circumstances provided for in the preceding clause (1) and except in
the circumstances covered by this clause (2), payments by the Company of
principal of (and premium, if any) and interest on the indebtedness
evidenced by any Security, or any renewals or extensions thereof, shall not
be deemed to be affected by any of the subordination provisions hereof; and
(3) Each Holder (hereinafter in this Article called a
"Securityholder"), by his acceptance of a Security issued hereunder (i)
irrevocably authorizes and empowers (without imposing any obligation on)
each holder of Senior Indebtedness (hereinafter in this clause (3) called a
"Senior Holder") at the time outstanding and such Senior Holder's
representatives to demand, sue for, collect and receipt for such
Securityholder's ratable share of all payments and distributions in respect
of the Securities which are required to be paid or delivered to the Senior
Holders as provided in clause (1) above, and to file and prove all claims
therefor and take all such other action (including the right to vote such
Securityholder's ratable share of
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the Securities), in the name of such Securityholder or otherwise, as such
Senior Holder or such Senior Holder's representatives may determine to be
necessary or appropriate for the enforcement of clause (1) above, provided,
however, that no action may be taken by any Senior Holder or such Senior
Holder's representatives pursuant to the authorization conferred by this
item (a) of this clause (3) unless written notice shall have been given by
such Senior Holder or such Senior Holder's representatives to a
Securityholder requesting such Securityholder to take such action and such
Securityholder shall not have taken such action within 15 days after the
giving of such notice; and (b) agrees to execute and deliver to each Senior
Holder and such Senior Holder's representatives all such further
instruments confirming the above authorization, and all such powers of
attorney, proofs of claim, assignments of claim and other instruments, and
to take all such other action, as may be requested by such Senior Holder or
such Senior Holder's representatives in order to enable such Senior Holder
to enforce all claims upon or in respect of such Securityholder's ratable
share of the Securities.
The Company agrees, for the benefit of the holder of Senior Indebtedness, that
in the event that any Security is declared due and payable by the Trustee or the
Holder thereof before its express maturity for any reason, (a) the Company will
give prompt notice in writing of such happening to the holders of Senior
Indebtedness and (b) all Senior Indebtedness shall forthwith become due and
payable upon demand, regardless of the expressed maturity thereof.
SECTION 1403. Payment of Senior Indebtedness of Certain Amounts Received by
Securityholders.
In the event that, notwithstanding the provisions of Section 1402
prohibiting such distribution or payment, any distribution of assets of the
Company or payment by or on behalf of the Company of any kind or character,
whether in cash, property or securities, to which the Holders of the Securities
or the Trustee would be entitled but for the provisions of this Article
prohibiting such distribution or payment, shall be received by the Trustee or
the Holders of the Securities before the principal of (and premium, if any) and
interest on all Senior Indebtedness is paid in full, or provision is made for
its payment, such distribution or payment shall be held in trust for the benefit
of, and shall be paid over or delivered to, the holders of such Senior
Indebtedness or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
such Senior Indebtedness may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the Senior Indebtedness held or
represented by each, for application to the payment of all Senior Indebtedness
remaining unpaid to the extent necessary to pay the principal of (and premium,
if any) and interest on all such Senior Indebtedness in full, after giving
effect to any concurrent distribution or payment, or provision therefor, from
any source, to the Holders of such Senior Indebtedness or their representatives
or trustees.
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SECTION 1404. Notice to Trustee of Specified Events; Reliance on Certificate
of Liquidating Agent.
The Company shall give prompt written notice to the Trustee of any
insolvency or bankruptcy proceeding in respect of the Company and of any
proceedings for voluntary liquidation, dissolution or other winding up of the
Company (whether or not involving insolvency or bankruptcy), within the meaning
of Section 1402(1), of the declaration of any Security as due and payable before
its expressed maturity within the meaning of Section 1402(3), and of any event
which pursuant to Section 1402(2) would prevent payment by the Company on
account of the principal of (and premium, if any) or interest on the Securities.
The Trustee, subject to the provisions of Section 601, shall be entitled to
assume that no such event has occurred unless the Company, or a holder of Senior
Indebtedness or any trustee therefor or any Entitled Persons in respect of Other
Financial Obligations or any trustee therefor, has given such notice.
Upon any distribution of assets of the Company or payment by or on behalf
of the Company referred to in this Article Fourteen, the Trustee and the Holders
of the Securities shall be entitled to rely upon any order or decree of court of
competent jurisdiction in which any proceedings of the nature referred to in
Section 1402 are pending, and the Trustee, subject to the provisions of Section
601 hereof, and the Holders of the Securities shall be entitled to rely upon a
certificate of the liquidating trustee or agent or other Person making any
distribution to the Trustee or to the Holders of the Securities for the purpose
of ascertaining the persons entitled to participate in such distribution, the
holders of the Senior Indebtedness, Entitled Persons in respect of Other
Financial Obligations and other indebtedness of the Company, the amount thereof
or payable thereon, the amount of amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article. In the event that the Trustee
determines in good faith, that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness or as an Entitled Person
in respect of Other Financial Obligations to participate in any payment or
distribution pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness or Other Financial Obligations, as the case may be, held
by such Person, as to the extent to which such Person is entitled to participate
in such payment or distribution, and as to other facts pertinent to the rights
of such Person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
The Trustee, however, shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness or to Entitled Persons in respect of Other
Financial Obligations but shall have only such obligations to such holders as
are expressly set forth in this Article.
SECTION 1405. Subrogation.
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Subject to the payment in full of the principal of (and premium, if any)
and interest on all Senior Indebtedness, the Holders of the Securities (together
with the holders of any other indebtedness of the Company which is subordinate
in right of payment to the payment of other indebtedness of the Company, but is
not subordinate in right of payment to the Securities and by its terms grants
such right of subrogation to the holders thereof, including, without limitation,
the holders of Existing Subordinated Indebtedness) shall be subrogated to the
rights of the holders of Senior Indebtedness to receive distributions of assets
of the Company, or payments by or on behalf of the Company, made on the Senior
Indebtedness, until the principal of (and premium, if any) and interest on the
Securities shall be paid in full; and, for the purposes of such subrogation, no
distributions or payments to the holders of Senior Indebtedness of any cash,
property or securities to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article, and no payment over
pursuant to the provisions of this Article to the holders of Senior Indebtedness
by the Holders of the Securities or the Trustee, shall, as between the Company,
its creditors other than the holders of Senior Indebtedness and the Holders of
the Securities be deemed to be a payment by the Company to or on account of
Senior Indebtedness, it being understood that the provisions of this Article,
are, and are intended, solely for the purpose of defining the relative rights of
the Holders of the Securities, on the one hand, and the holders of Senior
Indebtedness, on the other hand.
SECTION 1406. Obligation to Pay Not Impaired.
Nothing contained in this Article or elsewhere in this Indenture, or in the
Securities, is intended to or shall alter or impair, as among the Company, its
creditors other than the holders of Senior Indebtedness and Entitled Persons in
respect of Other Financial Obligations and the Holders of the Securities, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders of the Securities the principal of (and premium, if any) and interest on
the Securities at the time and place and at the rate and in the currency therein
prescribed, or to affect the relative rights of the Holders of the Securities
and creditors of the Company other than the holders of Senior Indebtedness and
Entitled Persons in respect of Other Financial Obligations, nor shall anything
herein or therein prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article of the holders
of Senior Indebtedness and Entitled Persons in respect of Other Financial
Obligations to receive cash, property or securities otherwise payable or
deliverable to the Holders of the Securities.
SECTION 1407. Reliance by Senior Indebtedness on Subordination Provisions.
Each Holder of any Security by his acceptance thereof acknowledges and
agrees that the subordination provisions provided for herein are, and are
intended to be, an inducement and a consideration to each Holder of any Senior
Indebtedness whether such Senior Indebtedness was created or acquired before or
after the issuance of the Securities, to acquire and continue to hold,
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or to continue to hold, such Senior Indebtedness, and such holder of Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such
Senior Indebtedness.
SECTION 1408. Certain Payments and Credits Permitted.
Nothing contained in this Article or elsewhere in this Indenture, or in any
of the Securities, shall prevent (1) the Company from making payment of the
principal of (or premium, if any) or interest on the Securities, or from
depositing with the Trustee or any Paying Agent moneys for such payments, not
then contrary to the conditions described in Sections 1402 and 1414, (2) the
application by the Trustee or any Paying Agent of any moneys so deposited with
it under this Indenture to the payment of or on account of the principal of (or
premium, if any) or interest on the Securities unless the Trustee has actual
knowledge of a default on the Senior Indebtedness, or (3) the retention by the
Holders of Securities of moneys so applied and paid to them on account of the
principal of (or premium, if any) or interest on the Securities[, whether or not
at the time of such application described in (2) or payment described in (3)
payment of principal of (or premium, if any) or interest on the Securities would
then be precluded pursuant to Section 1402.]
SECTION 1409. Subordination Not to be Prejudiced by Certain Acts.
No right of any present or future holder of any Senior Indebtedness or any
present or future Entitled Person in respect of the Other Financial Obligations
of the Company to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act by any such holder or Entitled
Person, or by any noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such holder
may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness and Entitled Persons in respect of Other
Financial Obligations may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and without impairing
or releasing the subordination provided for in this Article or the obligations
hereunder of the Holders of the Securities to the holders of the Senior
Indebtedness and Entitled Persons, in respect of Other Financial Obligations, do
any one or more of the following: (1) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, Senior Indebtedness
or Other Financial Obligations, or otherwise amend or supplement in any manner
Senior Indebtedness or Other Financial Obligations or any instrument evidencing
the same or any agreement under which Senior Indebtedness is or Other Financial
Obligations are outstanding; (2) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior Indebtedness or
Other Financial Obligations; (3) release any Person
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<PAGE>
liable in any manner for the collection of Senior Indebtedness or Other
Financial Obligations; and (4) exercise or refrain from exercising any rights
against the Company and any other Person.
SECTION 1410. Trustee Authorized to Effectuate Subordination.
Each Holder of Securities by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to acknowledge or effectuate the subordination as provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1411. Trustee's Rights Regarding Senior Indebtedness Held by It.
The Trustee shall be entitled to all the rights set forth in this Article
in respect of any Senior Indebtedness or, in the case of Section 1415, Other
Financial Obligations at any time held by it, to the same extent as any other
holder of Senior Indebtedness or any other Entitled Person in respect of Other
Financial Obligations, as the case may be, and nothing in Section [613] or
elsewhere in this Indenture shall deprive the Trustee of any of its rights as
such holder.
SECTION 1412. Trustee and Paying Agents Not Chargeable with Knowledge Until
Notice.
Notwithstanding any of the provisions of this Article or any other
provision of this Indenture, the Trustee and any Paying Agent shall not at any
time be charged with knowledge of the existence of any facts which would
prohibit the making of any payment of moneys to or by the Trustee or any Paying
Agent, unless and until the Trustee or such Paying Agent, as the case may be,
shall have received written notice thereof from the Company, a holder of Senior
Indebtedness or an Entitled Person in respect of Other Financial Obligations, or
any trustee therefor together with proof satisfactory to the Trustee of the
status of the holder of such Senior Indebtedness, such Entitled Person in
respect of Other Financial Obligations or the authority of such trustee; and,
prior to the receipt of any such written notice, the Trustee, subject to the
provisions of Section 601, and any Paying Agent shall be entitled to assume that
no such facts exist. If at least three Business Days prior to the date upon
which by the terms hereof any such moneys may become payable for any purpose
(including, without limitation, the payment of either the principal of or the
interest on any Security) the Trustee or Paying Agent, as the case may be, shall
not have received with respect to such moneys the notice provided for in this
Section, then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such moneys and to apply
the same to the purpose for which they were received and shall not be affected
by any notice to the contrary which may be received by it on or after the
commencement of such three-day period.
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SECTION 1413. Limitation on Securing Securities.
The Company will not give, and neither the Holders of the Securities nor
the Trustee will take or receive, any security interest for the payment of the
principal of (or premium, if any) or interest on the Securities, other than cash
required or permitted to be paid to the Trustee or any Paying Agent hereunder.
SECTION 1414. Limitation on Premature Deposit of Funds.
The Company will not deposit funds for the redemption of any Security with
the Trustee or any Paying Agent more than 35 days prior to the date fixed for
redemption; and, except as a part of funds deposited for redemption of
Securities as aforesaid, the Company will not deposit funds for the payment of
interest on the Securities more than 15 days prior to the date on which such
interest is due.
SECTION 1415. Securities to Rank Pari Passu with Existing Subordinated
Indebtedness.
(1) Subject to the provisions of this Section and to any provisions
established or determined with respect to Securities of any series pursuant to
Section 301, the Securities shall rank pari passu in right of payment with all
other Securities and the Existing Subordinated Indebtedness.
(2) Upon the occurrence of any of the events specified in Section 1402(1),
the provisions of that Section and the corresponding provisions of each
indenture or other instrument or document establishing or governing the terms of
any Existing Subordinated Indebtedness shall be given effect on a pro rata basis
to determine the amount of cash, property or securities which may be payable or
deliverable as between the holders of Senior Indebtedness, on the one hand, and
the Holders of Securities and holders of Existing Subordinated Indebtedness, on
the other hand.
(3) If, after giving effect to the provisions of Section 1402(1), Section
1405 and the respective corresponding provisions of each indenture or other
instrument or document establishing or governing the terms of any Existing
Subordinated Indebtedness on such pro rata basis, any amount of cash, property
or securities shall be available for payment or distribution in respect of the
Securities ("Excess Proceeds"), and any Entitled Persons in respect of Other
Financial Obligations shall not have received payment in full of all amounts due
or to become due on or in respect of such Other Financial Obligations (and
provision shall not have been made for such payment in money or money's worth),
then such Excess Proceeds shall first be applied (ratably with any amount of
cash, property or securities available for payment or distribution in respect of
any other indebtedness of the Company that by its express terms provides for the
payment over of amounts corresponding to Excess Proceeds to Entitled Persons in
respect of Other Financial Obligations) to pay or provide for the payment of the
Other Financial Obligations remaining unpaid, to the extent necessary to pay all
Other Financial Obligations in
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full, after giving effect to any concurrent payment or distribution to or for
Entitled Persons in respect of Other Financial Obligations. Any Excess Proceeds
remaining after the payment (or provision for payment) in full of all Other
Financial Obligations shall be available for payment or distribution in respect
of the Securities.
(4) In the event that, notwithstanding the foregoing provisions of
subsection (3) of this Section, after the occurrence of any of the events
specified in Section 1402(1), the Trustee or Holder of any Security shall have
received any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, before Senior Indebtedness
and all Other Financial Obligations are paid in full or payment thereof duly
provided for, and if such fact shall, at or prior to the time of such payment or
distribution, have been made known to the Trustee or, as the case may be, such
Holder, then and in such event, subject to any obligation that the Trustee or
such Holder may have pursuant to Section 1402 or Section 1403, such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for payment in
accordance with subsection (3) of this Section.
(5) Subject to the payment in full of the principal of (and premium, if
any) and interest on all Other Financial Obligations, the Holders of the
Securities (together with the holders of indebtedness of the Company that by its
express terms provides for the payment over of amounts corresponding to Excess
Proceeds to Entitled Persons in respect of Other Financial Obligations and by
its terms grants such right of subrogation to the holders thereof) shall be
subrogated to the rights of the Entitled Persons in respect of Other Financial
Obligations to receive distributions or assets of the Company, or payments by or
on behalf of the Company, made on the Other Financial Obligations, until the
principal of (and premium, if any) and interest on the Securities shall be paid
in full; and, for the purposes of such subrogation, no distributions or payments
to Entitled Persons in respect of Other Financial Obligations of any cash,
property or securities to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Section, and no payment over
pursuant to the provisions of this Section to the Entitled Persons in respect of
Other Financial Obligations by the Holders of the Securities or the Trustee,
shall, as between the Company, its creditors other than the Entitled Persons in
respect of Other Financial Obligations and the Holders of the Securities, be
deemed to be a payment by the Company to or on account of the Other Financial
Obligations, it being understood that the provisions of this Section are, and
are intended, solely for the purpose of defining the relative rights of the
Securities, on the one hand, and the Entitled Persons in respect of Other
Financial Obligations, on the other hand.
(6) The provisions of subsections (3), (4) and (5) of this Section are
intended solely for the purpose of defining the relative rights of the Holders
of the Securities, on the one hand, and the Entitled Persons in respect of Other
Financial Obligations, on the other hand, after giving effect to the rights of
the holders of Senior Indebtedness, as provided in this Article. Nothing
contained in subsections (3), (4) and (5) of this Section is intended to or
shall affect the relative rights
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<PAGE>
against the Company of the Holders of the Securities and creditors of the
Company other than Entitled Persons in respect of Other Financial Obligations.
* * *
This instrument may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
STATE STREET CORPORATION
By
--------------------------------
Attest:
- ---------------------------
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By
--------------------------------
Attest:
-----------------------
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<PAGE>
Commonwealth of Massachusetts )
) ss:
County of Suffolk )
On the ____ day of _________, ___, before me personally came
__________________, to me known, who, being by me duly sworn, did depose and say
that he/she is _______________ of ________________, one of the corporations
described in and which executed the foregoing instrument; that he/she knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation; and that he/she signed his name thereto by like authority.
----------------------------------
Commonwealth of Massachusetts )
) ss:
County of Suffolk )
On the ____ day of _________, ___, before me personally came
__________________, to me known, who, being by me duly sworn, did depose and say
that he/she is _______________ of ________________, one of the corporations
described in and which executed the foregoing instrument; that he/she knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation; and that he/she signed his name thereto by like authority.
----------------------------------
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<PAGE>
Exhibit 4.17
CERTIFICATE OF TRUST
OF
STATE STREET CAPITAL TRUST I
This Certificate of Trust of State Street Capital Trust I (the
"Trust"), dated March 25, 1998, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del. C. ss. 3801 et seq.).
(a) Name. The name of the business trust being formed hereby
is State Street Capital Trust I.
(b) Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the State of Delaware
is First Chicago Delaware Inc., 300 King Street, Wilmington, Delaware 19801.
(c) Effective Date. This Certificate of Trust shall be
effective as of March 25, 1998.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have executed this Certificate of Trust as of the date first above written.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: /s/ John R. Prendiville
------------------------------------
Name: John R. Prendiville
Title: Vice President
FIRST CHICAGO DELAWARE INC.
as Trustee
By: /s/ John R. Prendiville
------------------------------------
Name: John R. Prendiville
Title: Vice President
<PAGE>
Romano I. Peluso
as Administrative Trustee
/s/ Romano I. Peluso
------------------------------------
James E. Murphy
as Administrative Trustee
/s/ James E. Murphy
------------------------------------
-2-
<PAGE>
Exhibit 4.18
CERTIFICATE OF TRUST
OF
STATE STREET CAPITAL TRUST II
This Certificate of Trust of State Street Capital Trust II (the
"Trust"), dated March 25, 1998, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del. C. (S) 3801 et seq.).
(a) Name. The name of the business trust being formed hereby
is State Street Capital Trust II.
(b) Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the State of Delaware
is First Chicago Delaware Inc., 300 King Street, Wilmington, Delaware 19801.
(c) Effective Date. This Certificate of Trust shall be
effective as of March 25, 1998.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have executed this Certificate of Trust as of the date first above written.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: /s/ John R. Prendiville
------------------------------------
Name: John R. Prendiville
Title: Vice President
FIRST CHICAGO DELAWARE INC.
as Trustee
By: /s/ John R. Prendiville
------------------------------------
Name: John R. Prendiville
Title: Vice President
<PAGE>
Romano I. Peluso
as Administrative Trustee
/s/ Romano I. Peluso
-----------------------
James E. Murphy
as Administrative Trustee
/s/ James E. Murphy
-----------------------
-2-
<PAGE>
Exhibit 4.19
CERTIFICATE OF TRUST
OF
STATE STREET CAPITAL TRUST III
This Certificate of Trust of State Street Capital Trust III (the
"Trust"), dated March 25, 1998, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del. C. (S) 3801 et seq.).
(a) Name. The name of the business trust being formed hereby
is State Street Capital Trust III.
(b) Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the State of Delaware
is First Chicago Delaware Inc., 300 King Street, Wilmington, Delaware 19801.
(c) Effective Date. This Certificate of Trust shall be
effective as of March 25, 1998.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have executed this Certificate of Trust as of the date first above written.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: /s/ John R. Prendiville
------------------------------------
Name: John R. Prendiville
Title: Vice President
FIRST CHICAGO DELAWARE INC.
as Trustee
By: /s/ John R. Prendiville
------------------------------------
Name: John R. Prendiville
Title: Vice President
<PAGE>
Romano I. Peluso
as Administrative Trustee
/s/ Romano I. Peluso
-----------------------
James E. Murphy
as Administrative Trustee
/s/ James E. Murphy
-----------------------
-2-
<PAGE>
Exhibit 4.20
DECLARATION OF TRUST
OF
STATE STREET CAPITAL TRUST I
This DECLARATION OF TRUST, dated as of March 25, 1998, between State
Street Corporation, a Massachusetts corporation, as "Depositor," The First
National Bank of Chicago, as "Property Trustee", First Chicago Delaware Inc., as
"Delaware Trustee" and Romano I. Peluso and James E. Murphy, as "Administrative
Trustees" (collectively, the "Trustees"). The Depositor and the Trustees hereby
agree as follows:
1. The trust created hereby shall be known as State Street Capital
Trust I (the "Trust"), in which name the Trustees, or the Depositor to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trust the sum of $10, which amount shall constitute the initial trust
estate. It is the intention of the parties hereto that the Trust created hereby
constitute a business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. (S) 3801 et seq. (the "Business Trust Act"), and that this document
constitutes the governing instrument of the Trust. The Trustees are hereby
authorized and directed to execute and file a certificate of trust with the
Delaware Secretary of State in accordance with the provisions of the Business
Trust Act.
3. The Depositor and the Trustees will enter into an Amended and
Restated Trust Agreement, satisfactory to each such party and having
substantially the terms described in the Prospectus (as defined below), to
provide for the contemplated operation of the Trust created hereby and the
issuance of the Capital Securities and Common Securities referred to therein.
Prior to the execution and delivery of such amended and restated Declaration of
Trust, the Trustees shall not have any duty or obligation hereunder or with
respect to the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery any licenses,
consents or approvals required by applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to prepare and distribute any
prospectus or supplemental prospectus on behalf of the Trust, including the
prospectus relating to the Capital Securities of the Trust and certain other
securities (the "Prospectus") and any necessary or desirable amendments thereto
(including any exhibits contained therein or forming a part thereof); (ii) to
file and execute on behalf of the Trust such applications, reports, surety
bonds, irrevocable consents, appointments of attorney for service of process and
other papers and documents as the
<PAGE>
Depositor, on behalf of the Trust, may deem necessary or desirable to register
the Capital Securities under, or obtain for the Capital Securities an exemption
from, the securities or "Blue Sky" laws; (iii) to execute on behalf of the Trust
such underwriting or purchase agreements with one or more underwriters,
purchasers or agents relating to the offering of the Capital Securities as the
Depositor, on behalf of the Trust, may deem necessary or desirable; and (iv) to
execute on behalf of the Trust any and all documents, papers and instruments as
may be desirable in connection with any of the foregoing. If any filing referred
to in clauses (i) or (ii) above is required by law or by the rules and
regulations of applicable governmental agency, self-regulatory organization or
other person or organization to be executed on behalf of the Trust by one of the
Trustees, the Depositor and any of the Trustees appointed pursuant to Section 6
hereof are hereby authorized to join in any such filing and to execute on behalf
of the Trust any and all of the foregoing; it being understood that The First
National Bank of Chicago and First Chicago Delaware Inc., in their capacity as
Trustees of the Trust, shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required by any such
law, rule or regulation.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be four (4) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Depositor which may increase or decrease
the number of Trustees; provided, however, that to the extent required by the
-------- -------
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any of the Trustees at
any time. Any of the Trustees may resign upon thirty days' prior notice to the
Depositor; provided, however, that such notice shall not be required if it is
-------- -------
waived by the Depositor.
7. First Chicago Delaware Inc., in its capacity as Trustee, shall
not have any of the powers or duties of the Trustees set forth herein (except as
may be required under the Business Trust Act) and shall be a Trustee of the
Trust for the sole purpose of satisfying the requirements of Section 3807 of the
Business Trust Act.
8. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
-2-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
STATE STREET CORPORATION,
as Depositor
By: /s/ Rex S. Schuette
------------------------------------
Name: Rex S. Schuette
Title: Senior Vice President and
Chief Accounting Officer
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: /s/ John R. Prendiville
------------------------------------
Name: John R. Prendiville
Title: Vice President
FIRST CHICAGO DELAWARE INC.,
as Trustee
By: /s/ John R. Prendiville
------------------------------------
Name: John R. Prendiville
Title: Vice President
-3-
<PAGE>
Romano I. Peluso
as Administrative Trustee
/s/ Romano I. Peluso
--------------------
James E. Murphy
as Administrative Trustee
/s/ James E. Murphy
-------------------
-4-
<PAGE>
EXHIBIT 4.21
DECLARATION OF TRUST
OF
STATE STREET CAPITAL TRUST II
This DECLARATION OF TRUST, dated as of March 25, 1998, between State
Street Corporation, a Massachusetts corporation, as "Depositor," The First
National Bank of Chicago, as "Property Trustee", First Chicago Delaware Inc., as
"Delaware Trustee" and Romano I. Peluso and James E. Murphy, as "Administrative
Trustees" (collectively, the "Trustees"). The Depositor and the Trustees hereby
agree as follows:
1. The trust created hereby shall be known as State Street Capital
Trust II (the "Trust"), in which name the Trustees, or the Depositor to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trust the sum of $10, which amount shall constitute the initial trust
estate. It is the intention of the parties hereto that the Trust created hereby
constitute a business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. ss. 3801 et seq. (the "Business Trust Act"), and that this document
constitutes the governing instrument of the Trust. The Trustees are hereby
authorized and directed to execute and file a certificate of trust with the
Delaware Secretary of State in accordance with the provisions of the Business
Trust Act.
3. The Depositor and the Trustees will enter into an Amended and
Restated Trust Agreement, satisfactory to each such party and having
substantially the terms described in the Prospectus (as defined below), to
provide for the contemplated operation of the Trust created hereby and the
issuance of the Capital Securities and Common Securities referred to therein.
Prior to the execution and delivery of such amended and restated Declaration of
Trust, the Trustees shall not have any duty or obligation hereunder or with
respect to the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery any licenses,
consents or approvals required by applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to prepare and distribute any
prospectus or supplemental prospectus on behalf of the Trust, including the
prospectus relating to the Capital Securities of the Trust and certain other
securities (the "Prospectus") and any necessary or desirable amendments thereto
(including any exhibits contained therein or forming a part thereof); (ii) to
file and execute on behalf of the Trust such applications, reports, surety
bonds, irrevocable consents, appointments of attorney for service of process and
other papers and documents as the
<PAGE>
Depositor, on behalf of the Trust, may deem necessary or desirable to register
the Capital Securities under, or obtain for the Capital Securities an exemption
from, the securities or "Blue Sky" laws; (iii) to execute on behalf of the Trust
such underwriting or purchase agreements with one or more underwriters,
purchasers or agents relating to the offering of the Capital Securities as the
Depositor, on behalf of the Trust, may deem necessary or desirable; and (iv) to
execute on behalf of the Trust any and all documents, papers and instruments as
may be desirable in connection with any of the foregoing. If any filing referred
to in clauses (i) or (ii) above is required by law or by the rules and
regulations of applicable governmental agency, self-regulatory organization or
other person or organization to be executed on behalf of the Trust by one of the
Trustees, the Depositor and any of the Trustees appointed pursuant to Section 6
hereof are hereby authorized to join in any such filing and to execute on behalf
of the Trust any and all of the foregoing; it being understood that The First
National Bank of Chicago and First Chicago Delaware Inc., in their capacity as
Trustees of the Trust, shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required by any such
law, rule or regulation.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be four (4) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Depositor which may increase or decrease
the number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any of the Trustees at
any time. Any of the Trustees may resign upon thirty days' prior notice to the
Depositor; provided, however, that such notice shall not be required if it is
-------- -------
waived by the Depositor.
7. First Chicago Delaware Inc., in its capacity as Trustee, shall not
have any of the powers or duties of the Trustees set forth herein (except as may
be required under the Business Trust Act) and shall be a Trustee of the Trust
for the sole purpose of satisfying the requirements of Section 3807 of the
Business Trust Act.
8. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
-2-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
STATE STREET CORPORATION,
as Depositor
By: /s/ Rex S. Schuette
------------------------------------
Name: Rex S. Schuette
Title: Senior Vice President and
Chief Accounting Officer
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: /s/ John R. Prendiville
------------------------------------
Name: John R. Prendiville
Title: Vice President
FIRST CHICAGO DELAWARE INC.,
as Trustee
By: /s/ John R. Prendiville
------------------------------------
Name: John R. Prendiville
Title: Vice President
-3-
<PAGE>
Romano I. Peluso
as Administrative Trustee
/s/ Romano I. Peluso
------------------------------------
James E. Murphy
as Administrative Trustee
/s/ James E. Murphy
------------------------------------
-4-
<PAGE>
EXHIBIT 4.22
DECLARATION OF TRUST
OF
STATE STREET CAPITAL TRUST III
This DECLARATION OF TRUST, dated as of March 25, 1998, between State
Street Corporation, a Massachusetts corporation, as "Depositor," The First
National Bank of Chicago, as "Property Trustee", First Chicago Delaware Inc., as
"Delaware Trustee" and Romano I. Peluso and James E. Murphy, as "Administrative
Trustees" (collectively, the "Trustees"). The Depositor and the Trustees hereby
agree as follows:
1. The trust created hereby shall be known as State Street Capital
Trust III (the "Trust"), in which name the Trustees, or the Depositor to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trust the sum of $10, which amount shall constitute the initial trust
estate. It is the intention of the parties hereto that the Trust created hereby
constitute a business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. ss. 3801 et seq. (the "Business Trust Act"), and that this document
constitutes the governing instrument of the Trust. The Trustees are hereby
authorized and directed to execute and file a certificate of trust with the
Delaware Secretary of State in accordance with the provisions of the Business
Trust Act.
3. The Depositor and the Trustees will enter into an Amended and
Restated Trust Agreement, satisfactory to each such party and having
substantially the terms described in the Prospectus (as defined below), to
provide for the contemplated operation of the Trust created hereby and the
issuance of the Capital Securities and Common Securities referred to therein.
Prior to the execution and delivery of such amended and restated Declaration of
Trust, the Trustees shall not have any duty or obligation hereunder or with
respect to the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery any licenses,
consents or approvals required by applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to prepare and distribute any
prospectus or supplemental prospectus on behalf of the Trust, including the
prospectus relating to the Capital Securities of the Trust and certain other
securities (the "Prospectus") and any necessary or desirable amendments thereto
(including any exhibits contained therein or forming a part thereof); (ii) to
file and execute on behalf of the Trust such applications, reports, surety
bonds, irrevocable consents, appointments of attorney for service of process and
other papers and documents as the
<PAGE>
Depositor, on behalf of the Trust, may deem necessary or desirable to register
the Capital Securities under, or obtain for the Capital Securities an exemption
from, the securities or "Blue Sky" laws; (iii) to execute on behalf of the Trust
such underwriting or purchase agreements with one or more underwriters,
purchasers or agents relating to the offering of the Capital Securities as the
Depositor, on behalf of the Trust, may deem necessary or desirable; and (iv) to
execute on behalf of the Trust any and all documents, papers and instruments as
may be desirable in connection with any of the foregoing. If any filing referred
to in clauses (i) or (ii) above is required by law or by the rules and
regulations of applicable governmental agency, self-regulatory organization or
other person or organization to be executed on behalf of the Trust by one of the
Trustees, the Depositor and any of the Trustees appointed pursuant to Section 6
hereof are hereby authorized to join in any such filing and to execute on behalf
of the Trust any and all of the foregoing; it being understood that The First
National Bank of Chicago and First Chicago Delaware Inc., in their capacity as
Trustees of the Trust, shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required by any such
law, rule or regulation.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be four (4) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Depositor which may increase or decrease
the number of Trustees; provided, however, that to the extent required by the
-------- -------
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any of the Trustees at
any time. Any of the Trustees may resign upon thirty days' prior notice to the
Depositor; provided, however, that such notice shall not be required if it is
-------- -------
waived by the Depositor.
7. First Chicago Delaware Inc., in its capacity as Trustee, shall not
have any of the powers or duties of the Trustees set forth herein (except as may
be required under the Business Trust Act) and shall be a Trustee of the Trust
for the sole purpose of satisfying the requirements of Section 3807 of the
Business Trust Act.
8. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
-2-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
STATE STREET CORPORATION,
as Depositor
By: /s/ Rex S. Schuette
------------------------------------
Name: Rex S. Schuette
Title: Senior Vice President and
Chief Accounting Officer
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: /s/ John R. Prendiville
------------------------------------
Name: John R. Prendiville
Title: Vice President
FIRST CHICAGO DELAWARE INC.,
as Trustee
By: /s/ John R. Prendiville
------------------------------------
Name: John R. Prendiville
Title: Vice President
-3-
<PAGE>
Romano I. Peluso
as Administrative Trustee
/s/ Romano I. Peluso
--------------------
James E. Murphy
as Administrative Trustee
/s/ James E. Murphy
-------------------
-4-
<PAGE>
Exhibit 4.23
================================================================================
AMENDED AND RESTATED TRUST AGREEMENT
among
STATE STREET CORPORATION,
as Depositor
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
the individuals named herein as Administrative Trustees
and the several Holders of the Trust Securities
---------------------------
Dated as of ______,____
---------------------------
STATE STREET CAPITAL TRUST [I/II/III]
================================================================================
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINED TERMS
SECTION 1.1. Definitions.............................................1
ARTICLE II
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name...................................................12
SECTION 2.2. Office of the Delaware Trustee; Principal
Place of Business.............................................12
SECTION 2.3. Initial Contribution of Trust Property;
Organizational Expenses.......................................12
SECTION 2.4. Issuance of the Capital Securities.....................12
SECTION 2.5. Issuance of the Common Securities;
Subscription and Purchase of Debentures.......................13
SECTION 2.6. Declaration of Trust...................................13
SECTION 2.7. Authorization to Enter into Certain Transactions.......14
SECTION 2.8. Assets of Trust........................................17
SECTION 2.9. Title to Trust Property................................18
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. Payment Account........................................18
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions..........................................18
SECTION 4.2. Redemption.............................................19
SECTION 4.3. Subordination of Common Securities.....................21
SECTION 4.4. Payment Procedures.....................................22
i
<PAGE>
SECTION 4.5. Tax Returns and Reports................................22
SECTION 4.6. Payment of Expenses of the Issuer Trust................22
SECTION 4.7. Payments under Indenture or
Pursuant to Direct Actions....................................23
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership......................................23
SECTION 5.2. The Trust Securities Certificates......................23
SECTION 5.3. Execution and Delivery of Trust Securities
Certificates..................................................24
Section 5.4. Registration of Transfer and Exchange of
Capital Securities Certificates ..............................24
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen
Trust Securities Certificates ................................25
SECTION 5.6. Persons Deemed Holders.................................25
SECTION 5.7. Access to List of Holders' Names and Addresses.........26
SECTION 5.8. Maintenance of Office or Agency........................26
SECTION 5.9. Appointment of Paying Agent............................26
SECTION 5.10. Ownership of Common Securities by Depositor............27
Section 5.11. Book-Entry Capital Securities Certificates;
Common Securities Certificate ................................27
SECTION 5.12. Notices to Clearing Agency.............................28
Section 5.13. Definitive Capital Securities Certificates.............28
SECTION 5.14. Rights of Holders; Waivers of Past Defaults............29
Section 5.15. CUSIP Numbers..........................................31
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights...........................31
SECTION 6.2. Notice of Meetings.....................................32
SECTION 6.3. Meetings of Holders of the Capital Securities..........32
SECTION 6.4. Voting Rights..........................................33
SECTION 6.5. Proxies, etc...........................................33
SECTION 6.6. Holder Action by Written Consent.......................33
SECTION 6.7. Record Date for Voting and Other Purposes..............33
SECTION 6.8. Acts of Holders........................................34
SECTION 6.9. Inspection of Records..................................35
ii
<PAGE>
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the
Property Trustee and the Delaware Trustee.....................35
SECTION 7.2. Representations and Warranties of Depositor............36
ARTICLE VIII
THE ISSUER TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities....................37
SECTION 8.2. Certain Notices........................................39
SECTION 8.3. Certain Rights of Property Trustee.....................40
SECTION 8.4. Not Responsible for Recitals or Issuance
of Securities ................................................42
SECTION 8.5. May Hold Securities....................................42
SECTION 8.6. Compensation; Indemnity; Fees..........................42
SECTION 8.7. Corporate Property Trustee Required;
Eligibility of Issuer Trustees and Administrative
Trustees......................................................43
SECTION 8.8. Conflicting Interests..................................44
SECTION 8.9. Co-Trustees and Separate Trustee.......................44
SECTION 8.10. Resignation and Removal; Appointment of Successor......46
SECTION 8.11. Acceptance of Appointment by Successor.................47
SECTION 8.12. Merger, Conversion, Consolidation or Succession
to Business ..................................................47
SECTION 8.13. Preferential Collection of Claims Against
Depositor or Issuer Trust ....................................48
SECTION 8.14. Trustee May File Proofs of Claim.......................48
SECTION 8.15. Reports by Property Trustee............................49
SECTION 8.16. Reports to the Property Trustee........................49
SECTION 8.17. Evidence of Compliance with Conditions Precedent.......49
SECTION 8.18. Number of Issuer Trustees..............................50
SECTION 8.19. Delegation of Power....................................50
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date.......................50
iii
<PAGE>
SECTION 9.2. Early Dissolution......................................50
SECTION 9.3. Dissolution............................................51
SECTION 9.4. Liquidation............................................51
SECTION 9.5. Mergers, Consolidations, Amalgamations or
Replacements of Issuer Trust..........................53
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders.......................54
SECTION 10.2. Amendment.............................................54
SECTION 10.3. Separability..........................................55
SECTION 10.4. Governing Law.........................................55
SECTION 10.5. Payments Due on Non-Business Day......................56
SECTION 10.6. Successors............................................56
SECTION 10.7. Headings..............................................56
SECTION 10.8. Reports, Notices and Demands..........................56
SECTION 10.9. Agreement Not to Petition.............................57
SECTION 10.10. Trust Indenture Act; Conflict
with Trust Indenture Act..................................57
SECTION 10.11. Acceptance of Terms of Trust Agreement,
Guarantee Agreement and Indenture.........................58
SECTION 10.12. Counterparts...................................58
EXHIBITS
Exhibit A Certificate of Trust
Exhibit B Form of Certificate Depository Agreement
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Capital Securities Certificate
iv
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of ______ ___,____ among
(i) State Street Corporation, a Massachusetts corporation (including any
successors or assigns, the "Depositor"), (ii) The First National Bank of
Chicago, a national banking association, as property trustee (in such capacity,
the "Property Trustee" and, in its separate corporate capacity and not in its
capacity as Property Trustee, the "Bank"), (iii) First Chicago Delaware Inc., a
Delaware corporation, as Delaware trustee (in such capacity, the "Delaware
Trustee"), (iv) [Romano I. Peluso], an individual, and [James E. Murphy], an
individual, each of whose address is State Street Bank and Trust Company, N.A.,
61 Broadway, 15th Floor, New York, New York (each, an "Administrative Trustee,"
and collectively, the "Administrative Trustees ") (the Property Trustee, the
Delaware Trustee, and the Administrative Trustees being referred to collectively
as the "Issuer Trustees"), and (v) the several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor and certain of the Issuer Trustees have
heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act (the "Issuer Trust") by entering into that certain
Trust Agreement, dated as of ___________, ______ (the "Original Trust
Agreement"), and by the execution and filing by the Delaware Trustee with the
Secretary of State of the State of Delaware of the Certificate of Trust, filed
on ______ ___ ,___ , attached as Exhibit A; and
WHEREAS, the Depositor and the Issuer Trustees desire to amend and
restate the Original Trust Agreement in its entirety as set forth herein to
provide for, among other things, (i) the issuance of the Common Securities by
the Issuer Trust to the Depositor, (ii) the issuance and sale of the Capital
Securities by the Issuer Trust pursuant to the Underwriting Agreement, and (iii)
the acquisition by the Issuer Trust from the Depositor of all of the right,
title and interest in the Debentures;
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Holders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
1
<PAGE>
(a) The terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) All other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) The words "include", "includes" and "including" shall be deemed
to be followed by the phrase "without limitation";
(d) All accounting terms used but not defined herein have the meanings
assigned to them in accordance with United States generally accepted accounting
principles;
(e) Unless the context otherwise requires, any reference to an
"Article", a "Section" or an "Exhibit" refers to an Article, a Section or an
Exhibit, as the case may be, of or to this Trust Agreement; and
(f) The words "hereby", "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest (as
defined in the Indenture) paid by the Depositor on a Like Amount of Debentures
for such period.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
"Administrative Trustee" means each of the individuals identified as an
"Administrative Trustee" in the preamble to this Trust Agreement solely in such
individual's capacity as Administrative Trustee of the Trust formed and
continued hereunder and not in such individual's individual capacity, or such
Administrative Trustee's successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
2
<PAGE>
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Book-Entry Capital Security, the rules and procedures of
the Clearing Agency for such Book-Entry Capital Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
such Person or of any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due and its willingness
to be adjudicated a bankrupt, or the taking of corporate action by such Person
in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board of Directors" means the board of directors of the Depositor or
the Executive Committee of the board of directors of the Depositor (or any other
committee of the board of directors of the Depositor performing similar
functions) or a committee designated by the board of directors of the Depositor
(or any such committee), comprised of two or more members of the board of
directors of the Depositor or officers of the Depositor, or both.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors, or officers of the Depositor to which
authority to act on behalf of the Board of Directors has been delegated and to
be in full force and effect on the date of such certification, and delivered to
the Issuer Trustees.
3
<PAGE>
"Book-Entry Capital Securities Certificate" means a Capital
Securities Certificate evidencing ownership of Book-Entry Capital Securities.
"Book-Entry Capital Security" means a Capital Security, the ownership
and transfers of which shall be made through book entries by a Clearing Agency
as described in Section 5.11.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed, or (c) a day on which the
Property Trustee's Corporate Trust Office or the Corporate Trust Office of the
Debenture Trustee is closed for business.
"Capital Securities Certificate" means a certificate evidencing
ownership of Capital Securities, substantially in the form attached as Exhibit
D.
"Capital Security" means an undivided beneficial interest in the assets
of the Issuer Trust, having a Liquidation Amount of $1,000 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Capital Treatment Event" means the reasonable determination by the
Depositor that, as a result of any amendment to, or change (including any
proposed change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision thereof or therein, or as a result of any
official or administrative pronouncement or action or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such proposed change, pronouncement, action or decision is
announced on or after the date of issuance of the Capital Securities hereunder,
there is more than an insubstantial risk that the Depositor will not be entitled
to treat an amount equal to the Liquidation Amount of the Capital Securities as
"Tier 1 Capital" (or the then equivalent thereof) for purposes of the capital
adequacy guidelines of the Federal Reserve, as then in effect and applicable to
the Depositor.
"Certificate Depository Agreement" means the agreement among the Issuer
Trust, the Depositor and DTC, as the initial Clearing Agency, dated as of the
Closing Date, substantially in the form attached as Exhibit B, as the same may
be amended and supplemented from time to time.
"Certificate of Trust" has the meaning specified in the recitals
hereof, as amended from time to time.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. DTC will be the initial
Clearing Agency.
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"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the Time of Delivery, which date is also the date
of execution and delivery of this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Common Security" means an undivided beneficial interest in the assets
of the Issuer Trust, having a Liquidation Amount of $1,000 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Corporate Trust Office" means (i) when used with respect to the
Property Trustee, the principal office of the Property Trustee located in
Chicago, Illinois, and (ii) when used with respect to the Debenture Trustee, the
principal office of the Debenture Trustee located in Chicago, Illinois.
"Debenture Event of Default" means any "Event of Default" specified in
Section 5.1 of the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption of such Debentures
under the Indenture.
"Debenture Tax Event" means a "Tax Event" as defined in the Indenture.
"Debenture Trustee" means The First National Bank of Chicago, a
national banking association, solely in its capacity as trustee pursuant to the
Indenture and not in its individual capacity, or its successor in interest in
such capacity, or any successor trustee appointed as provided in the Indenture.
"Debentures" means the Depositor's % Junior Subordinated Deferrable
----
Interest Debentures, Series [C/D/E], issued pursuant to the Indenture.
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"Definitive Capital Securities Certificates" means either or both (as
the context requires) of (i) Capital Securities Certificates issued as
Book-Entry Capital Securities Certificates as provided in Section 5.11, and (ii)
Capital Securities Certificates issued in certificated, fully registered form as
provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (S) 3801 et seq., as it may be amended from
time to time.
"Delaware Trustee" means the Person identified as the "Delaware
Trustee" in the preamble to this Trust Agreement, solely in its capacity as
Delaware Trustee of the trust heretofore formed and continued hereunder and not
in its individual capacity, or its successor in interest in such capacity, or
any successor Delaware trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a)(i).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"DTC" means The Depository Trust Company.
"Early Dissolution Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever the
reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Issuer Trust in the payment of any Distribution when
it becomes due and payable, and continuation of such default for a
period of 30 days; or
(c) default by the Issuer Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Issuer Trustees in this Trust Agreement
(other than those specified in clause (b) or (c) above) and
continuation of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the Issuer
Trustees and to the Depositor by the Holders of at least 25% in
aggregate Liquidation Amount of the Outstanding Capital
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Securities a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee if a successor Property Trustee has not been appointed within
90 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, and any
successor statute thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System, as from time to time constituted, or if at any time after the execution
of this Trust Agreement the Federal Reserve is not existing and performing the
duties now assigned to it, then the body performing such duties at such time.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Depositor and The First National Bank of Chicago, as trustee, contemporaneously
with the execution and delivery of this Trust Agreement, for the benefit of the
holders of the Trust Securities, as amended from time to time.
"Holder" means a Person in whose name a Trust Security or Trust
Securities are registered in the Securities Register; any such Person shall be
deemed to be a beneficial owner within the meaning of the Delaware Business
Trust Act.
"Indenture" means the Junior Subordinated Indenture, dated as of
December 15, 1996, between the Depositor and the Debenture Trustee, as trustee,
as amended or supplemented from time to time.
"Issuer Trust" means the Delaware business trust known as "State Street
Capital Trust [I/II/III]" which was created on __________ under the Delaware
Business Trust Act pursuant to the Original Trust Agreement and the filing of
the Certificate of Trust, and continued pursuant to this Trust Agreement.
"Issuer Trustees" means, collectively, the Property Trustee, the
Delaware Trustee, and the Administrative Trustees.
"Investment Company Act" means the Investment Company Act of 1940, or
any successor statute thereto, in each case as amended from time to time.
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"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of any Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Debentures to be contemporaneously redeemed in accordance with the
Indenture, the proceeds of which will be used to pay the Redemption Price of
such Trust Securities, (b) with respect to a distribution of Debentures to
Holders of Trust Securities in connection with a dissolution or liquidation of
the Issuer Trust, Debentures having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such Debentures are
distributed, and (c) with respect to any distribution of Additional Amounts to
Holders of Trust Securities, Debentures having a principal amount equal to the
Liquidation Amount of the Trust Securities in respect of which such distribution
is made.
"Liquidation Amount" means the stated amount of $1,000 per
Trust Security.
"Liquidation Date" means the date of the dissolution, winding-up or
dissolution of the Issuer Trust pursuant to Section 9.4.
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Majority in Liquidation Amount of the Capital Securities" or "Majority
in Liquidation Amount of the Common Securities" means, except as provided by the
Trust Indenture Act, Capital Securities or Common Securities, as the case may
be, representing more than 50% of the aggregate Liquidation Amount of all then
Outstanding Capital Securities or Common Securities, as the case may be.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman of the Board, a Vice Chairman of the Board,
the President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Trust Agreement shall include:
(a) a statement by each officer signing the Officers' Certificate that
such officer has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officers'
Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
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(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Depositor or any Affiliate of the Depositor.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding", when used with respect to Trust Securities, means, as of
the date of determination, all Trust Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Property Trustee
or delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent; provided that, if such Trust Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
(c) Trust Securities that have been paid or in exchange for or in lieu
of which other Capital Securities have been executed and delivered
pursuant to Sections 5.4, 5.5, 5.6 and 5.11;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Capital Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Capital
Securities owned by the Depositor, any Issuer Trustee, or any Affiliate of the
Depositor or any Issuer Trustee shall be disregarded and deemed not to be
Outstanding, except that (a) in determining whether any Issuer Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Capital Securities that such Issuer Trustee
knows to be so owned shall be so disregarded, and (b) the foregoing shall not
apply at any time when all of the outstanding Capital Securities are owned by
the Depositor, one or more of the Issuer Trustees, one or more of the
Administrative Trustees and/or any such Affiliate. Capital Securities so owned
that have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Administrative Trustees the
pledgee's right so to act with respect to such Capital Securities and that the
pledgee is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of Book-Entry
Capital Securities as reflected in the records of the Clearing Agency or, if a
Clearing Agency Participant is not the Owner, then as reflected in the records
of a Person maintaining an account with such Clearing Agency (directly or
indirectly, in accordance with the rules of such Clearing Agency).
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"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.10 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee with State Street Bank and
Trust Company in its trust department for the benefit of the Holders in which
all amounts paid in respect of the Debentures will be held and from which the
Property Trustee, through the Paying Agent, shall make payments to the Holders
in accordance with Sections 4.1 and 4.2.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, company,
limited liability company, trust, unincorporated association, or government or
any agency or political subdivision thereof, or any other entity of whatever
nature.
"Property Trustee" means the Person identified as the "Property
Trustee" in the preamble to this Trust Agreement, solely in its capacity as
Property Trustee of the trust heretofore formed and continued hereunder and not
in its individual capacity, or its successor in interest in such capacity, or
any successor property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date and the stated maturity
of the Debentures shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Debentures.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Securities Act" means the Securities Act of 1933, and any successor
statute thereto, in each case as amended from time to time.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.5(a).
"Successor Capital Securities" of any particular Capital Securities
Certificate means every Capital Securities Certificate issued after, and
evidencing all or a portion of the same beneficial interest in the Issuer Trust
as that evidenced by, such particular Capital Securities Certificate; and, for
the purposes of this definition, any Capital Securities Certificate executed and
delivered under Section 5.6 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Capital Securities
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Certificate shall be deemed to evidence the same beneficial interest in the
Issuer Trust as the mutilated, destroyed, lost or stolen Capital Securities
Certificate.
"Tax Event" means the receipt by the Trust of an Opinion of Counsel
experienced in such matters to the effect that, as a result of any amendment to,
or change (including any announced proposed change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein, or as a result of any official
administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or which proposed
change, pronouncement or decision is announced on or after the date of issuance
of the Capital Securities under this Trust Agreement, there is more than an
insubstantial risk that (i) the Trust is, or will be within 90 days after the
date of such Opinion of Counsel, subject to United States federal income tax
with respect to income received or accrued on the Debentures, (ii) interest
payable by the Depositor on the Debentures is not, or within 90 days after the
date of such Opinion of Counsel, will not be, deductible by the Depositor, in
whole or in part, for United States federal income tax purposes or (iii) the
Trust is, or will be within 90 days after the date of such Opinion of Counsel,
subject to more than a de minimis amount of other taxes, duties or other
governmental charges.
"Trust Agreement" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including (i) all exhibits, and (ii) for all
purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment or
supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) any cash on deposit in,
or owing to, the Payment Account, and (c) all proceeds and rights in respect of
the foregoing and any other property and assets for the time being held or
deemed to be held by the Property Trustee pursuant to the trusts of this Trust
Agreement.
"Trust Security" means any one of the Common Securities or the
Capital Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Capital Securities Certificates.
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"Underwriting Agreement" means the Underwriting Agreement, dated as of
____________, among the Trust, the Depositor and _______________________, as
representative of the underwriters named therein, incorporating the Standard
Provisions dated _____________.
"Vice President," when used with respect to the Depositor, means any
duly appointed vice president, whether or not designated by a number or a word
or words added before or after the title "vice president."
ARTICLE II
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name.
The trust continued hereby shall be known as "State Street Capital
Trust [I/II/III]", as such name may be modified from time to time by the
Administrative Trustees following written notice to the Holders and the other
Issuer Trustees, in which name the Administrative Trustees and the other Issuer
Trustees may conduct the business of the Issuer Trust, make and execute
contracts and other instruments on behalf of the Issuer Trust and sue and be
sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of
Business.
The address of the Delaware Trustee in the State of Delaware is 300
King Street, Wilmington, Delaware 19801, Attention: Michael J. Majchrzak, or
such other address in the State of Delaware as the Delaware Trustee may
designate by written notice to the Depositor, the Property Trustee and the
Administrative Trustees. The principal executive office of the Issuer Trust is
61 Broadway, 15th Floor, New York, New York 10005.
SECTION 2.3. Initial Contribution of Trust Property;
Organizational Expenses.
The Issuer Trustees acknowledge receipt from the Depositor in
connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Issuer Trust as they arise or shall, upon request of any Issuer
Trustee, promptly reimburse such Issuer Trustee for any such expenses paid by
such Issuer Trustee. The Depositor shall make no claim upon the Trust Property
for the payment of such expenses.
SECTION 2.4. Issuance of the Capital Securities.
On ________ ____, _____ the Depositor, both on its own behalf and on
behalf of the Issuer Trust pursuant to the Original Trust Agreement, executed
and delivered the Underwriting Agreement. Contemporaneously with the execution
and delivery of this Trust Agreement, an
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Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.2 and deliver to the Underwriters named in the Underwriting Agreement
Capital Securities Certificates, registered in the name of the nominee of the
initial Clearing Agency, in an aggregate amount of ____,000 Capital Securities
having an aggregate Liquidation Amount of $____,000,000, against receipt of an
aggregate purchase price plus accrued distributions from _____________ of such
Capital Securities of $___,___,___ which amount such Administrative Trustee
shall promptly deliver to the Property Trustee.
SECTION 2.5. Issuance of the Common Securities; Subscription and
Purchase of Debentures.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.2 and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount of
__,_____ Common Securities having an aggregate Liquidation Amount of $__,___,000
against payment by the Depositor of an aggregate purchase price therefor of
$__,___,000, which amount such Administrative Trustee shall promptly deliver to
the Property Trustee. Contemporaneously therewith, an Administrative Trustee, on
behalf the Trust, shall subscribe to and purchase from the Depositor Debentures,
registered in the name of the Trust and having an aggregate principal amount
equal to $___,___,0000, and, in the satisfaction of the purchase price plus
accrued interest from ___________ for such Debentures, the Property Trustee, on
behalf of the Trust, shall deliver to the Depositor the sum of $___,___,___
(being the sum of the amounts delivered to the Property Trustee pursuant to (i)
the second sentence of Section 2.4 and (ii) the first sentence of this Section
2.5).
SECTION 2.6. Declaration of Trust.
The exclusive purposes and functions of the Issuer Trust are (a) to
issue and sell Trust Securities, (b) use the proceeds from such sale to acquire
the Debentures, and (c) to engage in those activities necessary, convenient or
incidental thereto. The Depositor hereby appoints the Issuer Trustees as
trustees of the Issuer Trust, to have all the rights, powers and duties to the
extent set forth herein, and the Issuer Trustees hereby accept such appointment.
The Property Trustee hereby declares that it will hold the Trust Property upon
and subject to the conditions set forth herein for the benefit of the Issuer
Trust and the Holders. The Administrative Trustees shall have all rights, powers
and duties set forth herein and in accordance with applicable law with respect
to accomplishing the purposes of the Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities of the Property Trustee or the Administrative
Trustees, or any of the duties and responsibilities of the Issuer Trustees
generally, set forth herein. The Delaware Trustee shall be one of the trustees
of the Issuer Trust for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Delaware Business Trust Act and for taking
such actions as are required to be taken by a Delaware trustee under the
Delaware Business Trust Act.
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SECTION 2.7. Authorization to Enter into Certain Transactions.
(a) The Issuer Trustees shall conduct the affairs of the Issuer Trust
in accordance with the terms of this Trust Agreement. Subject to the limitations
set forth in paragraph (b) of this Section, and in accordance with the following
provisions (i) and (ii), the Issuer Trustees shall have the authority to enter
into all transactions and agreements determined by the Issuer Trustees to be
appropriate in exercising the authority, express or implied, otherwise granted
to the Issuer Trustees under this Trust Agreement, and to perform all acts in
furtherance thereof, including the following:
(i) As among the Issuer Trustees, the Administrative Trustees
shall have the power and authority to act on behalf of the Issuer Trust
with respect to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Issuer Trust to enter into, and
to execute, deliver and perform on behalf of the Issuer Trust,
the Expense Agreement and the Certificate Depository Agreement
and such other agreements as may be necessary or desirable in
connection with the purposes and function of the Issuer Trust;
(C) assisting in the registration of the Capital
Securities under the Securities Act and under state securities
or blue sky laws, and the qualification of this Trust
Agreement under the Trust Indenture Act;
(D) assisting in the listing of the Capital
Securities upon such securities exchange or exchanges as shall
be determined by the Depositor, with the registration of the
Capital Securities under the Exchange Act, if required, and
with the preparation and filing of all periodic and other
reports and other documents pursuant to the foregoing;
(E) assisting in the sending of notices (other
than notices of default) and other information regarding the
Trust Securities and the Debentures to the Holders in
accordance with this Trust Agreement;
(F) the appointment of a Paying Agent and
Securities Registrar in accordance with this Trust Agreement;
(G) to the extent provided in this Trust
Agreement, the winding up of the affairs of and liquidation of
the Issuer Trust and the execution and filing of the
certificate of cancellation with the Secretary of State of the
State of Delaware;
(H) execution of the Trust Securities on behalf
of the Trust in accordance with this Trust Agreement;
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(I) execution and delivery of closing
certificates, if any, pursuant to the Underwriting Agreement
and application for a taxpayer identification number for the
Issuer Trust;
(J) unless otherwise determined by the Depositor,
the Property Trustee, or the Administrative Trustees or as
otherwise required by the Delaware Business Trust Act or the
Trust Indenture Act, to execute on behalf of the Issuer Trust
(either acting alone or together with any or all of the
Administrative Trustees) any documents that the Administrative
Trustees have the power to execute pursuant to this Trust
Agreement; and
(K) the taking of any action incidental to the
foregoing as the Issuer Trustees may from time to time
determine is necessary or advisable to give effect to the
terms of this Trust Agreement.
(ii) As among the Issuer Trustees, the Property Trustee shall
have the power, duty and authority to act on behalf of the Issuer Trust
with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any
other payments made in respect of the Debentures and the
holding of such amounts in the Payment Account;
(D) the distribution through the Paying Agent
of amounts distributable to the Holders in respect of the
Trust Securities;
(E) the exercise of all of the rights, powers
and privileges of a holder of the Debentures;
(F) the sending of notices of default and other
information regarding the Trust Securities and the Debentures
to the Holders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust
Agreement, the winding up of the affairs of and liquidation of
the Issuer Trust and the preparation, execution and filing of
the certificate of cancellation with the Secretary of State of
the State of Delaware;
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(I) after an Event of Default (other than under
paragraph (b), (c), (d) or (e) of the definition of such term
if such Event of Default is by or with respect to the Property
Trustee) the taking of any action incidental to the foregoing
as the Property Trustee may from time to time determine is
necessary or advisable to give effect to the terms of this
Trust Agreement and protect and conserve the Trust Property
for the benefit of the Holders (without consideration of the
effect of any such action on any particular Holder); and
(J) except as otherwise provided in this Section
2.7(a)(ii), the Property Trustee shall have none of the
duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Issuer Trust
(or the Issuer Trustees acting on behalf of the Issuer Trust) shall not
undertake any business, activities or transaction except as expressly provided
herein or contemplated hereby. In particular, the Issuer Trustees (acting on
behalf of the Issuer Trusts) shall not (i) acquire any investments or engage in
any activities not authorized by this Trust Agreement, (ii) sell, assign,
transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the
Trust Property or interests therein, including to Holders, except as expressly
provided herein, (iii) take any action that would reasonably be expected to
cause the Issuer Trust to become taxable as a corporation or classified as other
than a grantor trust for United States Federal income tax purposes, (iv) incur
any indebtedness for borrowed money or issue any other debt, (v) take or consent
to any action that would result in the placement of a Lien on any of the Trust
Property, (vi) invest any proceeds received by the Issuer Trust from holding the
Debentures, but shall distribute all such proceeds to Holders pursuant to the
terms of this Trust Agreement and of the Trust Securities; (vii) acquire any
assets other than the Trust Property, (viii) possess any power or otherwise act
in such a way as to vary the Trust Property, (ix) possess any power or otherwise
act in such a way as to vary the terms of the Trust Securities in any way
whatsoever (except to the extent expressly authorized in this Trust Agreement or
by the terms of the Trust Securities) or (x) issue any securities or other
evidences of beneficial ownership of, or beneficial interest in, the Issuer
Trust other than the Trust Securities. The Property Trustee shall defend all
claims and demands of all Persons at any time claiming any Lien on any of the
Trust Property adverse to the interest of the Issuer Trust or the Holders in
their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities,
the Depositor shall have the right and responsibility to assist the Issuer Trust
with respect to, or effect on behalf of the Issuer Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Issuer Trust with the
Commission of and the execution on behalf of the Issuer Trust of a
registration statement on the appropriate form in relation to the
Capital Securities, including any amendments thereto;
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(ii) the determination of the States in which to take
appropriate action to qualify or register for sale all or part of the
Capital Securities and the determination of any and all such acts,
other than actions that must be taken by or on behalf of the Issuer
Trust, and the advice to the Issuer Trust of actions they must take on
behalf of the Issuer Trust, and the preparation for execution and
filing of any documents to be executed and filed by the Issuer Trust or
on behalf of the Issuer Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any such
States;
(iii) the preparation for filing by the Issuer Trust and
execution on behalf of the Issuer Trust of an application to the New
York Stock Exchange or any other national stock exchange or the Nasdaq
National Market or any other automated quotation system for listing
upon notice of issuance of any Capital Securities and filing with such
exchange or self-regulatory organization such notification and
documents as may be necessary from time to time to maintain such
listing;
(iv) the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for the sale of
the Capital Securities; and
(v) the taking of any other actions necessary or
desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the Issuer Trust
and to operate the Issuer Trust so that the Issuer Trust will not be deemed to
be an "investment company" required to be registered under the Investment
Company Act, and will not be taxable as a corporation or classified as other
than a grantor trust for United States Federal income tax purposes and so that
the Debentures will be treated as indebtedness of the Depositor for United
States Federal income tax purposes. In this connection, the Depositor and the
Administrative Trustees are authorized to take any action, not inconsistent with
applicable law, the Certificate of Trust or this Trust Agreement, that they
determine in their discretion to be necessary or desirable for such purposes, as
long as such action does not adversely affect in any material respect the
interests of the Holders of the Outstanding Capital Securities. In no event
shall the Depositor or the Issuer Trustees be liable to the Issuer Trust or the
Holders for any failure to comply with this section that results from a change
in law or regulation or in the interpretation thereof.
SECTION 2.8. Assets of Trust.
The assets of the Issuer Trust shall consist solely of the Trust
Property.
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SECTION 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee in trust for the benefit of the Issuer Trust and the
Holders in accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and its agents shall have
exclusive control and sole right of withdrawal with respect to the Payment
Account for the purpose of making deposits in and withdrawals from the Payment
Account in accordance with this Trust Agreement. All monies and other property
deposited or held from time to time in the Payment Account shall be held by the
Property Trustee in the Payment Account for the exclusive benefit of the Holders
and for distribution as herein provided, including (and subject to) any priority
of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions.
(a) The Trust Securities represent undivided beneficial interests in
the Trust Property, and Distributions (including of Additional Amounts) will be
made on the Trust Securities at the rate and on the dates that payments of
interest (including of Additional Interest, as defined in the Indenture) are
made on the Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative,
and will accumulate whether or not there are funds of the Trust
available for the payment of Distributions. Distributions shall
accumulate from _________ __, ____ and, except in the event (and to the
extent) that the Depositor exercises its right to defer the payment of
interest on the
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Debentures pursuant to the Indenture, shall be payable semi-annually in
arrears on ________ and ____________ of each year, commencing on
__________. If any date on which a Distribution is otherwise payable on
the Trust Securities is not a Business Day, then the payment of such
Distribution shall 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 the date
on which such payment was originally payable (each date on which
distributions are payable in accordance with this Section 4.1(a), a
"Distribution Date").
(ii) The Trust Securities shall be entitled to Distributions
payable at a rate of _____% per annum of the Liquidation Amount of the
Trust Securities. The amount of Distributions payable for any period
less than a full Distribution period shall be computed on the basis of
a 360-day year of twelve 30-day months and the actual number of days
elapsed in a partial month in a period. Distributions payable for each
full Distribution period will be computed by dividing the rate per
annum by two. The amount of Distributions payable for any period shall
include any Additional Amounts in respect of such period.
(iii) Distributions on the Trust Securities shall be made by
the Property Trustee from the Payment Account and shall be payable on
each Distribution Date only to the extent that the Issuer Trust has
funds then on hand and available in the Payment Account for the payment
of such Distributions.
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities at the close of business on the
relevant record date, which shall be at the close of business on the fifteenth
day (whether or not a Business Day) next preceding the relevant Distribution
Date.
SECTION 4.2. Redemption.
(a) On each Debenture Redemption Date and on the stated maturity of the
Debentures, the Issuer Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price together with a statement that it is
an estimate and that the actual Redemption Price will be calculated on
the
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third Business Day prior to the Redemption Date (and if an estimate is
provided, a further notice shall be sent of the actual Redemption Price
on the date that such Redemption Price is calculated);
(iii) the CUSIP number or CUSIP numbers of the Capital
Securities affected;
(iv) if less than all the Outstanding Trust Securities are to
be redeemed, the identification and the aggregate Liquidation Amount of
the particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed and
that Distributions thereon will cease to accumulate on and after said
date, except as provided in Section 4.2(d) below; and
(vi) if the Capital Securities are no longer in book-entry-
only form, the place or places where the Capital Securities
Certificates are to be surrendered for the payment of the Redemption
Price.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall be made and
the Redemption Price shall be payable on each Redemption Date only to the extent
that the Issuer Trust has funds then on hand and available in the Payment
Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of
any Capital Securities, then, by 12:00 noon, New York City time, on the
Redemption Date, subject to Section 4.2(c), the Property Trustee will, with
respect to Book-Entry Capital Securities, irrevocably deposit with the Clearing
Agency for such Book-Entry Capital Securities, to the extent available therefor,
funds sufficient to pay the applicable Redemption Price and will give such
Clearing Agency irrevocable instructions and authority to pay the Redemption
Price to the Holders of the Capital Securities. With respect to Capital
Securities that are not Book-Entry Capital Securities, the Property Trustee,
subject to Section 4.2(c), will irrevocably deposit with the Paying Agent, to
the extent available therefor, funds sufficient to pay the applicable Redemption
Price and will give the Paying Agent irrevocable instructions and authority to
pay the Redemption Price to the Holders of the Capital Securities upon surrender
of their Capital Securities Certificates. Notwithstanding the foregoing,
Distributions payable on or prior to the Redemption Date for any Trust
Securities called for redemption shall be payable to the Holders of such Trust
Securities as they appear on the Securities Register for the Trust Securities on
the relevant record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required, then upon the
date of such deposit, all rights of Holders holding Trust Securities so called
for redemption will cease, except the right of such Holders to receive the
Redemption Price and any Distribution payable in respect of the Trust Securities
on or prior to the Redemption Date, but without interest, and such Securities
will cease
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to be outstanding. In the event that any date on which any Redemption Price is
payable is not a Business Day, then payment of the Redemption Price payable on
such date will be made on the next succeeding day that is a Business Day
(without any interest or other payment in respect of any such delay), except
that, if such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case, with the same
force and effect as if made on such date. In the event that payment of the
Redemption Price in respect of any Trust Securities called for redemption is
improperly withheld or refused and not paid either by the Issuer Trust or by the
Depositor pursuant to the Guarantee, Distributions on such Trust Securities will
continue to accumulate, as set forth in Section 4.1, from the Redemption Date
originally established by the Issuer Trust for such Trust Securities to the date
such Redemption Price is actually paid, in which case the actual payment date
will be the date fixed for redemption for purposes of calculating the Redemption
Price.
(e) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated pro
rata to the Common Securities and the Capital Securities based upon the relative
Liquidation Amounts of such classes. The particular Capital Securities to be
redeemed shall be selected on a pro rata basis based upon their respective
Liquidation Amounts not more than 60 days prior to the Redemption Date by the
Property Trustee from the Outstanding Capital Securities not previously called
for redemption, provided that so long as the Capital Securities are in
book-entry-only form, such selection shall be made in accordance with the
customary procedures for the Clearing Agency for the Capital Securities. The
Property Trustee shall promptly notify the Securities Registrar in writing of
the Capital Securities selected for redemption and, in the case of any Capital
Securities selected for partial redemption, the Liquidation Amount thereof to be
redeemed. For all purposes of this Trust Agreement, unless the context otherwise
requires, all provisions relating to the redemption of Capital Securities shall
relate, in the case of any Capital Securities redeemed or to be redeemed only in
part, to the portion of the aggregate Liquidation Amount of Capital Securities
that has been or is to be redeemed.
SECTION 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including any Additional Amounts) on, the
Redemption Price of, and the Liquidation Distribution in respect of the Trust
Securities, as applicable, shall be made, subject to Section 4.2(e), pro rata
among the Common Securities and the Capital Securities based on the Liquidation
Amount of the Trust Securities; provided, however, that if on any Distribution
Date, Redemption Date or Liquidation Date any Event of Default resulting from a
Debenture Event of Default specified in Section 5.1(1) or 5.1(2) of the
Indenture shall have occurred and be continuing, no payment of any Distribution
(including any Additional Amounts) on, Redemption Price of, or Liquidation
Distribution in respect of any Common Security, and no other payment on account
of the redemption, liquidation or other acquisition of Common Securities, shall
be made unless payment in full in cash of all accumulated and unpaid
Distributions (including any Additional Amounts) on all Outstanding Capital
Securities for all Distribution periods terminating on or prior
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thereto, or in the case of payment of the Redemption Price the full amount of
such Redemption Price on all Outstanding Capital Securities then called for
redemption, or in the case of payment of the Liquidation Distribution the full
amount of such Liquidation Distribution on all Outstanding Capital Securities,
shall have been made or provided for, and all funds immediately available to the
Property Trustee shall first be applied to the payment in full in cash of all
Distributions (including any Additional Amounts) on, or the Redemption Price of,
the Capital Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting
from any Debenture Event of Default, the Holders of the Common Securities shall
have no right to act with respect to any such Event of Default under this Trust
Agreement until the effect of all such Events of Default with respect to the
Capital Securities have been cured, waived or otherwise eliminated. Until all
such Events of Default under this Trust Agreement with respect to the Capital
Securities have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Capital Securities and
not on behalf of the Holders of the Common Securities, and only the Holders of
the Capital Securities will have the right to direct the Property Trustee to act
on their behalf.
SECTION 4.4. Payment Procedures.
Payments of Distributions (including any Additional Amounts) in respect
of the Capital Securities shall be made by check mailed to the address of the
Person entitled thereto as such address shall appear on the Securities Register
or, if the Capital Securities are held by a Clearing Agency, such Distributions
shall be made to the Clearing Agency in immediately available funds. Payments in
respect of the Common Securities shall be made in such manner as shall be
mutually agreed between the Property Trustee and the Holders of the Common
Securities.
SECTION 4.5. Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared), at
the Depositor's expense, and file all United States Federal, state and local tax
and information returns and reports required to be filed by or in respect of the
Issuer Trust. In this regard, the Administrative Trustees shall (a) prepare and
file (or cause to be prepared and filed) all Internal Revenue Service forms
required to be filed in respect of the Issuer Trust in each taxable year of the
Issuer Trust, and (b) prepare and furnish (or cause to be prepared and
furnished) to each Holder all Internal Revenue Service forms required to be
provided by the Issuer Trust. The Administrative Trustees shall provide the
Depositor and the Property Trustee with a copy of all such returns and reports
promptly after such filing or furnishing. The Issuer Trustees shall comply with
United States Federal withholding and backup withholding tax laws and
information reporting requirements with respect to any payments to Holders under
the Trust Securities.
SECTION 4.6. Payment of Expenses of the Issuer Trust.
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The Depositor shall pay to the Issuer Trust, and reimburse the Issuer
Trust for, the full amount of any costs, expenses or liabilities of the Issuer
Trust (other than obligations of the Issuer Trust to pay the Holders of any
Capital Securities or other similar interests in the Issuer Trust the amounts
due such Holders pursuant to the terms of the Capital Securities or such other
similar interests, as the case may be), including, without limitation, any
taxes, duties or other governmental charges of whatever nature (other than
withholding taxes) imposed on the Issuer Trust by the United States or any other
taxing authority. Such payment obligation includes any such costs, expenses or
liabilities of the Issuer Trust that are required by applicable law to be
satisfied in connection with a dissolution of the Issuer Trust.
SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Capital Securities (or
any Owner with respect thereto) shall be reduced by the amount of any
corresponding payment such Holder (or Owner) has directly received pursuant to
Section 5.8 of the Indenture or Section 5.13 of this Trust Agreement.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.
Upon the formation of the Issuer Trust and the contribution by the
Depositor pursuant to Section 2.3 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are outstanding,
the Depositor shall be the sole beneficial owner of the Issuer Trust.
SECTION 5.2. The Trust Securities Certificates.
The Capital Securities Certificates shall be issued in minimum
denominations of $1,000 Liquidation Amount and integral multiples of $1,000 in
excess thereof, and the Common Securities Certificates shall be issued in
denominations of $1,000 Liquidation Amount and integral multiples thereof. The
Trust Securities Certificates shall be (i) executed on behalf of the Issuer
Trust by manual or facsimile signature of at least one Administrative Trustee
and, if executed on behalf of the issuer Trust by facsimile, countersigned by a
transfer agent or its agent and (ii) authenticated by the Property Trustee by
manual or facsimile signature of an authorized signatory thereof and, if
executed by such authorized signatory of the Property Trustee by facsimile,
countersigned by a transfer agent or its agent. Trust Securities Certificates
bearing the manual signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Issuer
Trust or the Property Trustee or, if executed on behalf of the Issuer Trust or
the Property Trustee by facsimile, countersigned by a transfer agent or its
agent, shall be validly issued and
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entitled to the benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
delivery of such Trust Securities Certificates or did not hold such offices at
the date of delivery of such Trust Securities Certificates. A transferee of a
Trust Securities Certificate shall become a Holder, and shall be entitled to the
rights and subject to the obligations of a Holder hereunder, upon due
registration of such Trust Securities Certificate in such transferee's name
pursuant to Sections 5.4, 5.11 and 5.13.
SECTION 5.3. Execution and Delivery of Trust Securities Certificates.
At the Time of Delivery, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Issuer Trust and delivered
to or upon the written order of the Depositor, executed by one authorized
officer thereof, without further corporate action by the Depositor, in
authorized denominations.
SECTION 5.4. Registration of Transfer and Exchange of Capital
Securities Certificates.
The Depositor shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.8, a register or registers for the purpose of
registering Trust Securities Certificates and transfers and exchanges of Capital
Securities Certificates (the "Securities Register") in which the transfer agent
and registrar designated by the Depositor (the "Securities Registrar"), subject
to such reasonable regulations as it may prescribe, shall provide for the
registration of Capital Securities Certificates and Common Securities
Certificates (subject to Section 5.10 in the case of the Common Securities
Certificates) and registration of transfers and exchanges of Capital Securities
Certificates as herein provided. The Bank shall be the initial Securities
Registrar.
Upon surrender for registration of transfer of any Capital Securities
Certificate at the office or agency maintained pursuant to Section 5.8, the
Administrative Trustees or any one of them shall execute on behalf of the Issuer
Trust (and if executed on behalf of the Issuer Trust by a facsimile signature,
such certificate shall be countersigned by a transfer agent or its agent) and
deliver, in the name of the designated transferee or transferees, one or more
new Capital Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount dated the date of execution by such Administrative
Trustee or Trustees. The Securities Registrar shall not be required to register
the transfer of any Capital Securities that have been called for redemption
during a period beginning at the opening of business 15 days before the day of
selection for such redemption.
At the option of a Holder, Capital Securities Certificates may be
exchanged for other Capital Securities Certificates in authorized denominations
of the same class and of a like aggregate Liquidation Amount upon surrender of
the Capital Securities Certificates to be exchanged at the office or agency
maintained pursuant to Section 5.8.
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Every Capital Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to an Administrative Trustee and the
Securities Registrar duly executed by the Holder of his attorney duly authorized
in writing. Each Capital Securities Certificate surrendered for registration of
transfer or exchange shall be canceled and subsequently disposed of by an
Administrative Trustee or the Securities Registrar in accordance with such
Person's customary practice.
No service charge shall be made for any registration of transfer or
exchange of Capital Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Capital Securities
Certificates.
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates.
If (a) any mutilated Trust Securities Certificate shall be surrendered
to the Securities Registrar, or if the Securities Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Securities Certificate, and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Issuer Trust shall execute and make available for delivery, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class, tenor and
denomination. In connection with the issuance of any new Trust Securities
Certificate under this Section 5.6, the Administrative Trustees or the
Securities Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
Any duplicate Trust Securities Certificate issued pursuant to this Section shall
constitute conclusive evidence of an undivided beneficial interest in the assets
of the Issuer Trust corresponding to that evidenced by the lost, stolen or
destroyed Trust Securities Certificate, as if originally issued, whether or not
the lost, stolen or destroyed Trust Securities Certificate shall be found at any
time.
SECTION 5.6. Persons Deemed Holders.
The Issuer Trustees and the Securities Registrar shall each treat the
Person in whose name any Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities Certificate for the
purpose of receiving Distributions and for all other purposes whatsoever, and
none of the Issuer Trustees, the Administrative Trustees and the Securities
Registrar shall be bound by any notice to the contrary.
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SECTION 5.7. Access to List of Holders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to hold
the Depositor, the Property Trustee, the Delaware Trustee or the Administrative
Trustees accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
SECTION 5.8. Maintenance of Office or Agency.
The Administrative Trustees shall designate an office or offices or
agency or agencies where Capital Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Issuer Trustees in respect of the Trust Securities Certificates may be
served. The Administrative Trustees initially designate The First National Bank
of Chicago, One First National Plaza, Suite 0126, Chicago, Illinois 60670,
Attention: Corporate Trust Administration, as its office and agency for such
purposes. The Administrative Trustee shall give prompt written notice to the
Depositor, the Property Trustees and to the Holders of any change in the
location of the Securities Register or any such office or agency.
SECTION 5.9. Appointment of Paying Agent.
The Paying Agent shall make Distributions to Holders from the Payment
Account and shall report the amounts of such Distributions to the Property
Trustee and the Administrative Trustees. Any Paying Agent shall have the
revocable power to withdraw funds from the Payment Account solely for the
purpose of making the Distributions referred to above. The Property Trustee may
revoke such power and remove the Paying Agent in its sole discretion. The Paying
Agent shall initially be the Bank. Any Person acting as Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice to the
Administrative Trustees and the Property Trustee. If the Bank shall no longer be
the Paying Agent or a successor Paying Agent shall resign or its authority to
act be revoked, the Property Trustee shall appoint a successor (which shall be a
bank or trust company) that is reasonably acceptable to the Administrative
Trustees to act as Paying Agent. Such successor Paying Agent or any additional
Paying Agent shall execute and deliver to the Issuer Trustees an instrument in
which such successor Paying Agent or additional Paying Agent shall agree with
the Issuer Trustees that as Paying Agent, such successor Paying Agent or
additional Paying Agent will hold all sums, if any, held by it for payment to
the Holders in trust for the benefit of the Holders entitled thereto until such
sums shall be paid to such Holders. The Paying Agent shall return all unclaimed
funds to the Property Trustee and upon removal of a Paying Agent such Paying
Agent shall also return all funds in its possession to the Property Trustee. The
provisions of Sections 8.1, 8.3 and 8.6 herein shall apply to the Bank also in
its role as Paying Agent, for so long as the Bank shall act as Paying Agent and,
to the extent applicable, to any other paying agent appointed hereunder. Any
reference in this Agreement to the Paying Agent shall include any co-paying
agent unless the context requires otherwise.
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SECTION 5.10. Ownership of Common Securities by Depositor.
At the Time of Delivery, the Depositor shall acquire, and thereafter
shall retain, beneficial and record ownership of the Common Securities. To the
fullest extent permitted by law, other than a transfer in connection with a
consolidation or merger of the Depositor into another Person, or any conveyance,
transfer or lease by the Depositor of its properties and assets substantially as
an entirety to any Person, pursuant to Section 8.1 of the Indenture, any
attempted transfer of the Common Securities shall be void. The Administrative
Trustees shall cause each Common Securities Certificate issued to the Depositor
to contain a legend stated "THIS CERTIFICATE IS NOT TRANSFERABLE TO ANY PERSON".
SECTION 5.11. Book-Entry Capital Securities Certificates;
Common Securities Certificate.
(a) The Capital Securities Certificates, upon original issuance,
will be issued in the form of a typewritten Capital Securities Certificate or
Certificates representing Book-Entry Capital Securities Certificates, to be
delivered to DTC, the initial Clearing Agency, by, or on behalf of, the Issuer
Trust. Such Capital Securities Certificate or Certificates shall initially be
registered on the Securities Register in the name of Cede & Co., the nominee of
the initial Clearing Agency, and no Owner will receive a Definitive Capital
Securities Certificate representing such Owner's interest in such Capital
Securities, except as provided in Section 5.13. Unless and until Definitive
Capital Securities Certificates have been issued to Owners pursuant to Section
5.13 ;
(i) the provisions of this Section 5.11(a) shall be in
full force and effect;
(ii) the Securities Registrar and the Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this Trust
Agreement relating to the Book-Entry Capital Securities Certificates (including
the payment of the Liquidation Amount of an Distributions on the Capital
Securities evidenced by Book-Entry Capital Securities Certificates and the
giving of instructions or directions to Owners of Capital Securities evidenced
by Book-Entry Capital Securities Certificates) as the sole Holder of Capital
Securities evidenced by Book-Entry Capital Securities Certificates and shall
have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this Section
5.11 conflict with any other provisions of this Trust Agreement, the provisions
of this Section 5.11 shall control; and
(iv) the rights of the Owners of the Book-Entry Capital
Securities Certificate shall be exercised only through the Clearing Agency and
shall be limited to those established by law and agreements between such Owners
and the Clearing Agency and/or the Clearing Agency Participants. Pursuant to the
Certificate Depository Agreement, unless and until Definitive Capital Securities
Certificates are issued pursuant to Section 5.13, the initial Clearing Agency
will make book-entry transfers among the Clearing Agency Participants and
receive and transmit payments on the Capital Securities to such Clearing Agency
Participants.
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(b) A single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of a definitive
Common Securities Certificate.
SECTION 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, for so long as Capital Securities are
represented by a Book-Entry Capital Securities Certificate, the Administrative
Trustees and the Issuer Trustee shall give all such notices and communications
specified herein to be given to the Clearing Agency, and shall have no
obligations to the Owners.
SECTION 5.13. Definitive Capital Securities Certificates.
If (a) the Depositor advises the Issuer Trustees in writing that the
Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to the Capital Securities Certificates, and the
Depositor is unable to locate a qualified successor, (b) the Depositor at its
option advises the Issuer Trustees in writing that it elects to terminate the
book-entry system through the Clearing Agency or (c) after the occurrence of a
Debenture Event of Default, Owners of Capital Securities Certificates
representing beneficial interests aggregating at least a majority of the
Liquidation Amount advise the Administrative Trustees in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interest of the Owners of Capital Securities Certificates, then the
Administrative Trustees shall notify the other Issuer Trustees and the Clearing
Agency, and the Clearing Agency, in accordance with its customary rules and
procedures, shall notify all Clearing Agency Participants for whom it holds
Capital Securities of the occurrence of any such event and of the availability
of the Definitive Capital Securities Certificates to Owners of such class or
classes, as applicable, requesting the same. Upon surrender to the
Administrative Trustees of the typewritten Capital Securities Certificate or
Certificates representing the Book-Entry Capital Securities Certificates by the
Clearing Agency, accompanied by registration instructions, the Administrative
Trustees, or any one of them, shall execute the Definitive Capital Securities
Certificates in accordance with the instructions of the Clearing Agency, if
executed on behalf of the Trust by facsimile, countersigned by a transfer agent
or its agent. Neither the Securities Registrar nor the Trustees shall be liable
for any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Capital Securities Certificates, the Trustees shall recognize the
Holders of the Definitive Capital Securities Certificates as Security holders.
The Definitive Capital Securities Certificates shall be typewritten, printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Administrative Trustees that meets the requirements of any
stock exchange or automated quotation system on which the Capital Securities are
then listed or approved for trading, as evidenced by the execution thereof by
the Administrative Trustees or any one of them.
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SECTION 5.14. Rights of Holders; Waivers of Past Defaults.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Holders shall not have any right or title therein other than the undivided
beneficial interest in the assets of the Issuer Trust conferred by their Trust
Securities and they shall have no right to call for any partition or division of
property, profits or rights of the Issuer Trust except as described below. The
Trust Securities shall be personal property giving only the rights specifically
set forth therein and in this Trust Agreement. The Trust Securities shall have
no preemptive or similar rights and when issued and delivered to Holders against
payment of the purchase price therefor will be fully paid and nonassessable by
the Issuer Trust. The Holders of the Trust Securities, in their capacities as
such, shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
(b) For so long as any Capital Securities remain Outstanding, if, upon
a Debenture Event of Default, the Debenture Trustee fails or the holders of not
less than 25% in principal amount of the outstanding Debentures fail to declare
the principal of all of the Debentures to be immediately due and payable, the
Holders of at least 25% in Liquidation Amount of the Capital Securities then
Outstanding shall have the right to make such declaration by a notice in writing
to the Property Trustee, the Depositor and the Debenture Trustee.
At any time after a declaration of acceleration with respect to the
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as in the Indenture
provided, if the Property Trustee fails to annul any such declaration and waive
such default, the Holders of at least a Majority in Liquidation Amount of the
Capital Securities, by written notice to the Property Trustee, the Depositor and
the Debenture Trustee, may rescind and annul such declaration and its
consequences if:
(i) the Depositor has paid or deposited with the Debenture Trustee
a sum sufficient to pay
(A) all overdue installments of interest on all of the
Debentures,
(B) any accrued Additional Interest on all of the
Debentures,
(C) the principal of (and premium, if any, on) any
Debentures that have become due otherwise than by such
declaration of acceleration and interest and Additional
Interest thereon at the rate borne by the Debentures, and
(D) all sums paid or advanced by the Debenture Trustee
under the Indenture and the reasonable compensation, expenses,
disbursements and advances of the Debenture Trustee and the
Property Trustee, their agents and counsel; and
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(ii) all Events of Default with respect to the Debentures,
other than the non-payment of the principal of the Debentures that has
become due solely by such acceleration, have been cured or waived as
provided in Section 5.13 of the Indenture.
The Holders of at least a Majority in Liquidation Amount of the Capital
Securities may, on behalf of the Holders of all the Capital Securities, waive
any past default under the Indenture, except a default in the payment of
principal or interest (unless such default has been cured and a sum sufficient
to pay all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Debenture Trustee) or a default in
respect of a covenant or provision that under the Indenture cannot be modified
or amended without the consent of the holder of each outstanding Debenture. No
such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such
an acceleration, or rescission and annulment thereof, by Holders of any part of
the Capital Securities a record date shall be established for determining
Holders of Outstanding Capital Securities entitled to join in such notice, which
record date shall be at the close of business on the day the Property Trustee
receives such notice. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such notice,
whether or not such Holders remain Holders after such record date; provided,
that, unless such declaration of acceleration, or rescission and annulment, as
the case may be, shall have become effective by virtue of the requisite
percentage having joined in such notice prior to the day that is 90 days after
such record date, such notice of declaration of acceleration, or rescission and
annulment, as the case may be, shall automatically and without further action by
any Holder be canceled and of no further effect. Nothing in this paragraph shall
prevent a Holder, or a proxy of a Holder, from giving, after expiration of such
90-day period, a new written notice of declaration of acceleration, or
rescission and annulment thereof, as the case may be, that is identical to a
written notice that has been canceled pursuant to the proviso to the preceding
sentence, in which event a new record date shall be established pursuant to the
provisions of this Section 5.14(b).
(c) For so long as any Capital Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon a Debenture Event of Default specified in Section 5.1(1)
or 5.1(2) of the Indenture, any Holder of Capital Securities shall have the
right to institute a proceeding directly against the Depositor, pursuant to
Section 5.8 of the Indenture, for enforcement of payment to such Holder of any
amounts payable in respect of Debentures having an aggregate principal amount
equal to the aggregate Liquidation Amount of the Capital Securities of such
Holder (a "Direct Action"). Except as set forth in Section 5.14(b) and this
Section 5.14(c), the Holders of Capital Securities shall have no right to
exercise directly any right or remedy available to the holders of, or in respect
of, the Debentures.
(d) Except as otherwise provided in paragraphs (a), (b) and (c) of this
Section 5.13, the Holders of at least a Majority in Liquidation Amount of the
Capital Securities may, on behalf of the
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Holders of all the Capital Securities, waive any past default or Event of
Default and its consequences. Upon such waiver, any such default or Event of
Default shall cease to exist, and any default or Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Trust
Agreement, but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
SECTION 5.15. CUSIP Numbers.
The Administrative Trustees in issuing the Capital Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Property Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Capital Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Capital Securities, and any such
redemption shall not be affected by and defect in or omission of such numbers.
The Administrative Trustees will promptly notify the Property Trustee of any
change in the CUSIP numbers.
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights.
(a) Except as expressly provided in this Trust Agreement and in the
Indenture and as otherwise required by law, no Holder of Capital Securities
shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Issuer Trust or the obligations
of the parties hereto, nor shall anything herein set forth, or contained in the
terms of the Trust Securities Certificates, be construed so as to constitute the
Holders from time to time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee on
behalf of the Issuer Trust, the Issuer Trustees shall not (i) direct the time,
method and place of conducting any proceeding for any remedy available to the
Debenture Trustee, or execute any trust or power conferred on the Debenture
Trustee with respect to the Debentures, (ii) waive any past default that may be
waived under Section 5.13 of the Indenture, (iii) exercise any right to rescind
or annul a declaration that the principal of all the Debentures shall be due and
payable, or (iv) consent to any amendment, modification or termination of the
Indenture or the Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of at least a Majority in
Liquidation Amount of the Capital Securities, provided, however, that where a
consent under the Indenture would require the consent of each Holder of
Debentures affected thereby, no such consent shall be given by the Property
Trustee without the prior written consent of each Holder of Capital
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Securities. The Property Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of the Capital Securities,
except by a subsequent vote of the Holders of the Capital Securities. The
Property Trustee shall notify all Holders of the Capital Securities of any
notice of default received with respect to the Debentures. In addition to
obtaining the foregoing approvals of the Holders of the Capital Securities,
prior to taking any of the foregoing actions, the Issuer Trustees shall, at the
expense of the Depositor, obtain an Opinion of Counsel experienced in such
matters to the effect that such action shall not cause the Issuer Trust to be
taxable as a corporation or classified as other than a grantor trust for United
States Federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for, or
the Issuer Trustees otherwise propose to effect, (i) any action that would
adversely affect in any material respect the powers, preferences or special
rights of the Capital Securities, whether by way of amendment to the Trust
Agreement or otherwise, or (ii) the dissolution and winding-up of the Issuer
Trust, other than pursuant to the terms of this Trust Agreement, then the
Holders of Outstanding Capital Securities as a class will be entitled to vote on
such amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a Majority in Liquidation
Amount of the Capital Securities. Notwithstanding any other provision of this
Trust Agreement, no amendment to this Trust Agreement may be made if, as a
result of such amendment, it would cause the Issuer Trust to be taxable as a
corporation or classified as other than a grantor trust for United States
Federal income tax purposes.
SECTION 6.2. Notice of Meetings.
Notice of all meetings of the Holders of the Capital Securities,
stating the time, place and purpose of the meeting, shall be given by the
Property Trustee pursuant to Section 10.8 to each Holder of Capital Securities,
at such Holder's registered address, at least 15 days and not more than 90 days
before the meeting. At any such meeting, any business properly before the
meeting may be so considered whether or not stated in the notice of the meeting.
Any adjourned meeting may be held as adjourned without further notice.
SECTION 6.3. Meetings of Holders of the Capital Securities.
No annual meeting of Holders is required to be held. The Property
Trustee, however, shall call a meeting of the Holders of the Capital Securities
to vote on any matter upon the written request of the Holders of at least 25% in
aggregate Liquidation Amount of the Outstanding Capital Securities and the
Administrative Trustees or the Property Trustee may, at any time in their
discretion, call a meeting of the Holders of the Capital Securities to vote on
any matters as to which such Holders are entitled to vote.
The Holders of at least a Majority in Liquidation Amount of the Capital
Securities, present in person or by proxy, shall constitute a quorum at any
meeting of the Holders of the Capital Securities.
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If a quorum is present at a meeting, an affirmative vote by the Holders
present, in person or by proxy, holding Capital Securities representing at least
a Majority in aggregate Liquidation Amount of the Capital Securities held by the
Holders present, either in person or by proxy, at such meeting shall constitute
the action of the Holders of the Capital Securities, unless this Trust Agreement
requires a greater number of affirmative votes.
SECTION 6.4. Voting Rights.
Holders shall be entitled to one vote for each $1,000 of Liquidation
Amount represented by their Outstanding Trust Securities in respect of any
matter as to which such Holders are entitled to vote.
SECTION 6.5. Proxies, etc.
At any meeting of Holders, any Holder entitled to vote thereat may vote
by proxy, provided that no proxy shall be voted at any meeting unless it shall
have been placed on file with the Property Trustee, or with such other officer
or agent of the Issuer Trust as the Property Trustee may direct, for
verification prior to the time at which such vote shall be taken. Pursuant to a
resolution of the Property Trustee, proxies may be solicited in the name of the
Property Trustee or one or more officers of the Property Trustee. Only Holders
of record shall be entitled to vote. When Trust Securities are held jointly by
several persons, any one of them may vote at any meeting in person or by proxy
in respect of such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to be executed
by or on behalf of a Holder shall be deemed valid unless challenged at or prior
to its exercise, and the burden of proving invalidity shall rest on the
challenger. No proxy shall be valid more than three years after its date of
execution.
SECTION 6.6. Holder Action by Written Consent.
Any action that may be taken by Holders at a meeting may be taken
without a meeting if Holders holding at least a Majority in Liquidation Amount
of all Capital Securities entitled to vote in respect of such action (or such
larger proportion thereof as shall be required by any other provision of this
Trust Agreement) shall consent to the action in writing.
SECTION 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Holders who are entitled to notice
of and to vote at any meeting or by written consent, or to participate in any
distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the purpose of any other
action, the Administrative Trustees may from time to time fix a date, not more
than 90 days prior to the date of any meeting of Holders or the payment of a
Distribution or other action, as
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the case may be, as a record date for the determination of the identity of
the Holders of record for such purposes.
SECTION 6.8. Acts of Holders.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Trust Agreement to be given, made
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing; and, except as otherwise expressly provided herein,
such action shall become effective when such instrument or instruments are
delivered to the Property Trustee. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Trust Agreement and (subject to Section
8.1) conclusive in favor of the Issuer Trustees, if made in the manner provided
in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner that any Issuer Trustee receiving the same deems sufficient.
The ownership of Trust Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Trust Security shall bind every future Holder
of the same Trust Security and the Holder of every Trust Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Issuer
Trustees, or the Issuer Trust in reliance thereon, whether or not notation of
such action is made upon such Trust Security.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise between the Holders and the Issuer Trustees
or among the Holders or the Issuer Trustees with respect to the authenticity,
validity or binding nature of any request, demand, authorization, direction,
consent, waiver or other Act of such Holder or Issuer Trustee under
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this Article VI, then the determination of such matter by the Property Trustee
shall be conclusive with respect to such matter.
A Holder may institute a legal proceeding directly against the
Depositor under the Guarantee to enforce its rights under the Guarantee without
first instituting a legal proceeding against the Guarantee Trustee (as defined
in the Guarantee), the Issuer Trust, any Issuer Trustee, or any person or
entity.
SECTION 6.9. Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Issuer Trust shall be open to inspection by Holders
during normal business hours for any purpose reasonably related to such Holder's
interest as a Holder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee
and the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on behalf
of and as to itself, hereby represents and warrants for the benefit of the
Depositor and the Holders that:
(a) the Property Trustee is a national banking association, duly
organized, validly existing and in good standing under the laws of the United
States;
(b) the Property Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware corporation;
(d) the Delaware Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and the Delaware Trustee and constitutes the
valid and legally binding agreement of each of the Property Trustee and the
Delaware Trustee enforceable against each of them in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and
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similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles;
(f) the execution, delivery and performance of this Trust Agreement has
been duly authorized by all necessary corporate or other action on the part of
the Property Trustee and the Delaware Trustee and does not require any approval
of stockholders of the Property Trustee and the Delaware Trustee and such
execution, delivery and performance will not (i) violate the Charter or By-laws
of the Property Trustee or the Delaware Trustee, (ii) violate any provision of,
or constitute, with or without notice or lapse of time, a default under, or
result in the creation or imposition of, any Lien on any properties included in
the Trust Property pursuant to the provisions of, any indenture, mortgage,
credit agreement, license or other agreement or instrument to which the Property
Trustee or the Delaware Trustee is a party or by which it is bound, or (iii)
violate any law, governmental rule or regulation of the United States or the
State of Delaware, as the case may be, governing the banking, trust or general
powers of the Property Trustee or the Delaware Trustee (as appropriate in
context) or any order, judgment or decree applicable to the Property Trustee or
the Delaware Trustee;
(g) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the consummation of
any of the transactions by the Property Trustee or the Delaware Trustee (as the
case may be) contemplated herein requires the consent or approval of, the giving
of notice to, the registration with or the taking of any other action with
respect to any governmental authority or agency under any existing law of the
United States or the State of Delaware governing the banking, trust or general
powers of the Property Trustee or the Delaware Trustee (as appropriate in
context); and
(h) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened against or
affecting the Property Trustee or the Delaware Trustee in any court or before
any governmental authority, agency or arbitration board or tribunal that,
individually or in the aggregate, would materially and adversely affect the
Issuer Trust or would question the right, power and authority of the Property
Trustee or the Delaware Trustee, as the case may be, to enter into or perform
its obligations as one of the Trustees under this Trust Agreement.
SECTION 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Holders that:
(a) the Trust Securities Certificates issued at the Time of Delivery on
behalf of the Issuer Trust have been duly authorized and will have been duly and
validly executed, issued and delivered by the Issuer Trustees pursuant to the
terms and provisions of, and in accordance with the requirements of, this Trust
Agreement and the Holders will be, as of such date, entitled to the benefits of
this Trust Agreement; and
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(b) there are no taxes, fees or other governmental charges payable by
the Issuer Trust (or the Issuer Trustees on behalf of the Issuer Trust) under
the laws of the State of Delaware or any political subdivision thereof in
connection with the execution, delivery and performance by either Issuer Trustee
of this Trust Agreement.
ARTICLE VIII
THE ISSUER TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Issuer Trustees shall be as
provided by this Trust Agreement subject to Section 10.10 hereof.
Notwithstanding the foregoing, but subject to Section 8.1(c), no provision of
this Trust Agreement shall require any of the Issuer Trustees to expend or risk
its or their own funds or otherwise incur any financial liability in the
performance of any of its or their duties hereunder, or in the exercise of any
of its or their rights or powers, if it or they shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Trust Agreement relating to the
conduct or affecting the liability of or affording protection to the Issuer
Trustees shall be subject to the provisions of this Section 8.1. Nothing in this
Trust Agreement shall be construed to release an Administrative Trustee from
liability for his or her own negligent action, its own negligent failure to act,
or his or her own willful misconduct. To the extent that, at law or in equity,
an Administrative Trustee has duties and liabilities relating to the Issuer
Trust or to the Holders, such Administrative Trustee shall not be liable to the
Issuer Trust or to any Holder for such Administrative Trustee's good faith
reliance on the provisions of this Trust Agreement. The provisions of this Trust
Agreement, to the extent that they restrict the duties and liabilities of the
Administrative Trustees otherwise existing at law or in equity, are agreed by
the Depositor and the Holders to replace such other duties and liabilities of
the Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the Trust Property and only to the extent that there shall be sufficient
revenue or proceeds from the Trust Property to enable the Property Trustee or a
Paying Agent to make payments in accordance with the terms hereof. Each Holder,
by its acceptance of a Trust Security, agrees that it will look solely to the
revenue and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that neither the Issuer Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.1(b) does not limit the liability of the Issuer Trustees expressly set
forth elsewhere in this Trust Agreement or, in the case of the Property Trustee,
in the Trust Indenture Act.
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(c) If an Event of Default has occurred and is continuing, the Property
Trustee shall enforce this Trust Agreement for the benefit of the Holders.
(d) The Property Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Trust Agreement (including pursuant to Section 10.10), and no implied covenants
shall be read into this Trust Agreement against the Property Trustee. If an
Event of Default has occurred (that has not been cured or waived pursuant to
Section 5.13, the Property Trustee shall exercise such of the rights and powers
vested in it by this Trust Agreement, and use the same degree of care and skill
in its exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(e) No provision of this Trust Agreement shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Property
Trustee shall be determined solely by the express provisions
of this Trust Agreement (including pursuant to Section 10.10),
and the Property Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Trust Agreement (including pursuant to
Section 10.10); and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Property Trustee and conforming to the
requirements of this Trust Agreement; but in the case of any
such certificates or opinions that by any provision hereof or
of the Trust Indenture Act are specifically required to be
furnished to the Property Trustee, the Property Trustee shall
be under a duty to examine the same to determine whether or
not they conform to the requirements of this Trust Agreement.
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of at least a Majority in
Liquidation Amount of the Capital Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Property Trustee,
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or exercising any trust or power conferred upon the Property
Trustee under this Trust Agreement;
(iv) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Payment Account shall be to deal with such Property in a similar
manner as the Property Trustee deals with similar property for its own
account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Trust Agreement and the
Trust Indenture Act;
(v) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with the
Depositor; and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment Account maintained by the Property Trustee pursuant to Section
3.1 and except to the extent otherwise required by law;
(vi) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust Agreement, nor
shall the Property Trustee be liable for the default or misconduct of
any other Issuer Trustee, the Administrative Trustees or the Depositor;
and
(vii) Subject to Section 8.1(c), no provision of this Trust
Agreement shall require the Property Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its
rights or powers, if the Property Trustee shall have reasonable grounds
for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Trust Agreement or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(f) The Administrative Trustees shall not be responsible for monitoring
the compliance by the other Issuer Trustees or the Depositor with their
respective duties under this Trust Agreement, nor shall either Administrative
Trustee be liable for the default or misconduct of any other Issuer Trustee or
the Depositor.
SECTION 8.2. Certain Notices.
Within ninety days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 10.8, notice of such Event of
Default to the Holders and the Administrative Trustees, unless such Event of
Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the
Debentures pursuant to the Indenture, the Property Trustee
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shall transmit, in the manner and to the extent provided in Section 10.8, notice
of such exercise to the Holders and the Administrative Trustees, unless such
exercise shall have been revoked.
The Property Trustee shall not be deemed to have knowledge of any Event
of Default unless the Property Trustee shall have received written notice or a
Responsible Officer of the Property Trustee charged with the administration of
this Trust Agreement shall have obtained actual knowledge of such Event of
Default.
SECTION 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of action,
(ii) in construing any of the provisions of this Trust Agreement the Property
Trustee finds the same ambiguous or inconsistent with any other provisions
contained herein, or (iii) the Property Trustee is unsure of the application of
any provision of this Trust Agreement, then, except as to any matter as to which
the Holders of the Capital Securities are entitled to vote under the terms of
this Trust Agreement, the Property Trustee shall deliver a notice to the
Depositor requesting the Depositor's opinion as to the course of action to be
taken and the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall deem advisable and in the best
interests of the Holders, in which event the Property Trustee shall have no
liability except for its own bad faith, negligence or willful misconduct;
(c) any direction or act of the Depositor contemplated by this
Trust Agreement shall be sufficiently evidenced by an Officers' Certificate;
(d) any direction or act of an Administrative Trustee contemplated by
this Trust Agreement shall be sufficiently evidenced by a certificate executed
by such Administrative Trustee and setting forth such direction or act;
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or re-registration thereof;
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(f) the Property Trustee may consult with counsel (which counsel may be
counsel to the Depositor or any of its Affiliates, and may include any of its
employees) and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon and in accordance with
such advice; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement from any
court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Holders pursuant to this Trust Agreement, unless such
Holders shall have offered to the Property Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might be incurred by
it in compliance with such request or direction; provided that, nothing
contained in this Section 8.3(g) shall be taken to relieve the Property Trustee,
upon the occurrence of an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Trust Agreement;
(h) the Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Holders, but the Property
Trustee may make such further inquiry or investigation into such facts or
matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through its
agents or attorneys, provided that the Property Trustee shall be responsible for
its own negligence or misconduct with respect to selection of any agent or
attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders (which instructions may
only be given by the Holders of the same proportion in Liquidation Amount of the
Trust Securities as would be entitled to direct the Property Trustee under the
terms of the Trust Securities in respect of such remedy, right or action), (ii)
may refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be protected in acting in
accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose any duty
or obligation on any Issuer Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which such Person
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shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to any Issuer Trustee
shall be construed to be a duty.
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Issuer Trust and the Depositor, and the
Issuer Trustees do not assume any responsibility for their correctness. The
Issuer Trustees shall not be accountable for the use or application by the
Depositor of the proceeds of the Debentures.
SECTION 8.5. May Hold Securities.
Any Issuer Trustee or any other agent of any Issuer Trustee or the
Issuer Trust, in its individual or any other capacity, may become the owner or
pledgee of Trust Securities and, subject to Sections 8.8 and 8.13, and except as
provided in the definition of the term "Outstanding" in Article I, may otherwise
deal with the Issuer Trust with the same rights it would have if it were not
Issuer Trustee or such other agent.
SECTION 8.6. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Issuer Trustees from time to time such reasonable
compensation for all services rendered by them hereunder as may be agreed by the
Depositor and the Issuer Trustees from time to time (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Issuer Trustees upon request for all reasonable expenses, disbursements and
advances incurred or made by the Issuer Trustees in accordance with any
provision of this Trust Agreement (including the reasonable compensation and the
expenses and disbursements of their agents and counsel), except any such
expense, disbursement or advance as may be attributable to their negligence, bad
faith or wilful misconduct; and
(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) each Issuer Trustee, (ii) any Affiliate of any Issuer Trustee,
(iii) any officer, director, shareholder, employee, representative or agent of
any Issuer Trustee, and (iv) any employee or agent of the Issuer Trust (referred
to herein as an "Indemnified Person") from and against any loss, damage,
liability, tax, penalty, expense or claim of any kind or nature whatsoever
incurred by such Indemnified Person by reason of the creation, operation or
dissolution of the Issuer Trust or any act or omission performed or omitted by
such Indemnified Person in good faith on behalf of the Issuer Trust and in
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a manner such Indemnified Person reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Trust Agreement, except
that no Indemnified Person shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Indemnified Person by reason of
negligence, bad faith or wilful misconduct with respect to such acts or
omissions.
The provisions of this Section 8.6 shall survive the termination of
this Trust Agreement and the removal or resignation of any Issuer Trustee.
No Issuer Trustee may claim any Lien on any Trust Property as a result
of any amount due pursuant to this Section 8.6.
The Depositor and any Issuer Trustee may engage in or possess an
interest in other business ventures of any nature or description, independently
or with others, similar or dissimilar to the business of the Issuer Trust, and
the Issuer Trust and the Holders of Trust Securities shall have no rights by
virtue of this Trust Agreement in and to such independent ventures or the income
or profits derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Issuer Trust, shall not be deemed wrongful
or improper. Neither the Depositor nor any Issuer Trustee shall be obligated to
present any particular investment or other opportunity to the Issuer Trust even
if such opportunity is of a character that, if presented to the Issuer Trust,
could be taken by the Issuer Trust, and the Depositor, any Issuer Trustee shall
have the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Issuer Trustee may engage or be interested in any financial or
other transaction with the Depositor or any Affiliate of the Depositor, or may
act as depository for, trustee or agent for, or act on any committee or body of
holders of, securities or other obligations of the Depositor or its Affiliates.
SECTION 8.7. Corporate Property Trustee Required; Eligibility of
Issuer Trustees and Administrative Trustees.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
a national or state chartered bank and eligible pursuant to the Trust Indenture
Act to act as such and that has a combined capital and surplus of at least
$50,000,000. If any such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section and to the extent permitted by
the Trust Indenture Act, the combined capital and surplus of such Person shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Property Trustee with
respect to the Trust Securities shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article. At the time of
appointment, the Property Trustee must have securities rated in one of the three
highest rating categories by a nationally recognized statistical rating
organization.
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(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware, or (ii) a
legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law and that shall
act through one or more persons authorized to bind such entity.
SECTION 8.8. Conflicting Interests.
(a) If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement.
(b) The Guarantee Agreement and the Indenture shall be deemed to be
specifically described in this Trust Agreement for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
SECTION 8.9. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing, at
any time or times, for the purpose of meeting the legal requirements of the
Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Property Trustee shall have power to
appoint, and upon the written request of the Property Trustee, the Depositor and
the Administrative Trustees shall for such purpose join with the Property
Trustee in the execution, delivery, and performance of all instruments and
agreements necessary or proper to appoint, one or more Persons approved by the
Property Trustee either to act as co-trustee, jointly with the Property Trustee,
of all or any part of such Trust Property, or to the extent required by law to
act as separate trustee of any such property, in either case with such powers as
may be provided in the instrument of appointment, and to vest in such Person or
Persons in the capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this Section. Any
co-trustee or separate trustee appointed pursuant to this Section shall either
be (i) a natural person who is at least 21 years of age and a resident of the
United States, or (ii) a legal entity with its principal place of business in
the United States that shall act through one or more persons authorized to bind
such entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property,
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title, right, or power, any and all such instruments shall, on request, be
executed, acknowledged and delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed by one or more
Administrative Trustees, and the Trust Securities shall be delivered by the
Property Trustee, and all rights, powers, duties, and obligations hereunder in
respect of the custody of securities, cash and other personal property held by,
or required to be deposited or pledged with, the Property Trustee specified
hereunder shall be exercised solely by the Property Trustee and not by such
co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Property Trustee or by the Property Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be exercised and performed by
such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept the
resignation of or remove any co-trustee or separate trustee appointed under this
Section, and, in case a Debenture Event of Default has occurred and is
continuing, the Property Trustee shall have power to accept the resignation of,
or remove, any such co-trustee or separate trustee without the concurrence of
the Depositor. Upon the written request of the Property Trustee, the Depositor
shall join with the Property Trustee in the execution, delivery and performance
of all instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate trustee so
resigning or removed may be appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee or any other
trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act of a
co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
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SECTION 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Issuer Trustee (the "Relevant
Trustee") and no appointment of a successor Issuer Trustee pursuant to this
Article shall become effective until the acceptance of appointment by the
successor Issuer Trustee in accordance with the applicable requirements of
Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee
may resign at any time by giving written notice thereof to the Holders and by
appointing a successor Relevant Trustee. The Relevant Trustee shall appoint a
successor by requesting from at least three Persons meeting the eligibility
requirements its expenses and charges to serve as the Relevant Trustee on a form
provided by the Administrative Trustees, and selecting the Person who agrees to
the lowest expenses and charges. If the instrument of acceptance by the
successor Issuer Trustee required by Section 8.11 shall not have been delivered
to the Relevant Trustee within 60 days after the giving of such notice of
resignation, the Relevant Trustee may petition, at the expense of the, in the
case of the Property Trustee, Depositor, any court of competent jurisdiction for
the appointment of a successor Relevant Trustee.
The Property Trustee or the Delaware Trustee, or both of them, may be
removed by Act of the Holders of at least a Majority in Liquidation Amount of
the Capital Securities, delivered to the Relevant Trustee (in its individual
capacity and, in the case of the Property Trustee, on behalf of the Issuer
Trust) (i) for cause (including upon the occurrence of an Event of Default
described in subparagraph (d) of the definition thereof with respect to the
Relevant Trustee), or (ii) if a Debenture Event of Default shall have occurred
and be continuing at any time.
If a resigning Issuer Trustee shall fail to appoint a successor, or if
an Issuer Trustee shall be removed or become incapable of acting as Issuer
Trustee, or if a vacancy shall occur in the office of any Issuer Trustee for any
cause, the Holders of the Capital Securities, by Act of the Holders of not less
than 25% in aggregate Liquidation Amount of the Capital Securities then
Outstanding delivered to such Relevant Trustee, may appoint a successor Relevant
Trustee or Trustees, and such successor Issuer Trustee shall comply with the
applicable requirements of Section 8.11. If no successor Relevant Trustee shall
have been so appointed by the Holders of the Capital Securities and accepted
appointment in the manner required by Section 8.11, any Holder, on behalf of
such Holder and all others similarly situated, or any other Issuer Trustee, may
petition any court of competent jurisdiction for the appointment of a successor
Relevant Trustee.
The Property Trustee shall give notice of each resignation and each
removal of an Issuer Trustee and each appointment of a successor Issuer Trustee
to all Holders in the manner provided in Section 10.8 and shall give notice to
the Depositor and to the Administrative Trustees. Each notice shall include the
name of the successor Relevant Trustee and the address of its Corporate Trust
Office if it is the Property Trustee.
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Notwithstanding the foregoing or any other provision of this Trust
Agreement, if any Delaware Trustee who is a natural person dies or becomes, in
the opinion of the Holders of the Common Securities, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by the Property Trustee following the procedures regarding expenses
and charges set forth above (with the successor being a Person who satisfies the
eligibility requirement for the Delaware Trustee set forth in Section 8.7).
SECTION 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee and each successor Relevant Trustee with respect
to the Trust Securities shall execute and deliver an amendment hereto wherein
each successor Relevant Trustee shall accept such appointment and which (a)
shall contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Issuer Trust, and (b) shall add to or change any of the
provisions of this Trust Agreement as shall be necessary to provide for or
facilitate the administration of the Issuer Trust by more than one Relevant
Trustee, it being understood that nothing herein or in such amendment shall
constitute such Relevant Trustees co-trustees and upon the execution and
delivery of such amendment the resignation or removal of the retiring Relevant
Trustee shall become effective to the extent provided therein and each such
successor Relevant Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee; but, on request of the Issuer Trust or any successor Relevant
Trustee such retiring Relevant Trustee shall duly assign, transfer and deliver
to such successor Relevant Trustee all Trust Property, all proceeds thereof and
money held by such retiring Relevant Trustee hereunder with respect to the Trust
Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Issuer Trust
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case may
be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
Business.
Any Person into which the Property Trustee or the Delaware Trustee may
be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any Person, succeeding to all or substantially all
the corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided that such Person shall be otherwise
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qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
SECTION 8.13. Preferential Collection of Claims Against Depositor or
Issuer Trust.
If and when the Property Trustee shall be or become a creditor of the
Depositor or the Issuer Trust (or any other obligor upon the Capital
Securities), the Property Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Depositor or
the Issuer Trust (or any such other obligor).
SECTION 8.14. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Issuer Trust or any other obligor upon the Trust
Securities or the property of the Issuer Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable and irrespective of whether
the Property Trustee shall have made any demand on the Issuer Trust for the
payment of any past due Distributions) shall be entitled and empowered, to the
fullest extent permitted by law, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Trust Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Property Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Property Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement adjustment or compensation affecting the
Trust Securities or the rights of any Holder thereof or to authorize the
Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
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SECTION 8.15. Reports by Property Trustee.
(a) Within 60 days after May 15 of each year commencing with May 15,
1999, the Property Trustee shall transmit to all Holders in accordance with
Section 10.8, and to the Depositor, a brief report dated as of the immediately
preceding May 15 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof,
if to the best of its knowledge it has continued to be eligible under
said Section, a written statement to such effect;
(ii) a statement that the Property Trustee has complied with
all of its obligations under this Trust Agreement during the
twelve-month period (or, in the case of the initial report, the period
since the Closing Date) ending with such May 15 or, if the Property
Trustee has not complied in any material respect with such obligations,
a description of such noncompliance; and
(iii) any change in the property and funds in its possession
as Property Trustee since the date of its last report and any action
taken by the Property Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Trust Securities.
(b) In addition the Property Trustee shall transmit to Holders such
reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Property Trustee with the Depositor.
SECTION 8.16. Reports to the Property Trustee.
Each of the Depositor and the Administrative Trustees shall provide to
the Property Trustee such documents, reports and information as required by
Section 314 of the Trust Indenture Act (if any) and the compliance certificate
required by Section 314(a) of the Trust Indenture Act in the form, in the manner
and at the times required by Section 314 of the Trust Indenture Act. The
Depositor and the Administrative Trustees shall annually file with the Property
Trustee a certificate specifying whether such Person is in compliance with all
of the terms and covenants applicable to such Person hereunder.
SECTION 8.17. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees shall provide to
the Property Trustee such evidence of compliance with any conditions precedent,
if any, provided for in this Trust Agreement that relate to any of the matters
set forth in Section 314(c) of the Trust Indenture Act.
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Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
SECTION 8.18. Number of Issuer Trustees.
(a) The number of Issuer Trustees shall be four, unless the Property
Trustee also acts as the Delaware Trustee, in which case the number of Issuer
Trustees may be three.
(b) If an Issuer Trustee ceases to hold office for any reason, a
vacancy shall occur. The vacancy shall be filled with an Issuer Trustee
appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of an Issuer Trustee shall not
operate to annul or dissolve the Issuer Trust.
SECTION 8.19. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
2.7(a) or making any governmental filing; and
(b) The Administrative Trustees shall have power to delegate from time
to time to such of their number the doing of such things and the execution of
such instruments either in the name of the Issuer Trust or the names of the
Administrative Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of this Trust Agreement.
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Issuer Trust shall automatically
dissolve, and its affairs be wound up, on December 31, 2051 (the "Expiration
Date"), following the distribution of the Trust Property in accordance with
Section 9.4.
SECTION 9.2. Early Dissolution.
The first to occur of any of the following events is an "Early
Dissolution Event":
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(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor, in its capacity as the Holder of
the Common Securities, unless the Depositor shall transfer the Common Securities
as provided by Section 5.11, in which case this provision shall refer instead to
any such successor Holder of the Common Securities;
(b) the written direction to the Property Trustee from all of the
Holders of the Common Securities at any time to dissolve the Issuer Trust and to
distribute the Debentures to Holders in exchange for the Capital Securities
(which direction is optional and wholly within the discretion of the Holders of
the Common Securities);
(c) the redemption of all of the Capital Securities in connection
with the redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Issuer Trust
by a court of competent jurisdiction.
SECTION 9.3. Dissolution.
The respective obligations and responsibilities of the Issuer Trustees,
the Administrative Trustees and the Issuer Trust created and continued hereby
shall terminate upon the latest to occur of the following: (a) the distribution
by the Property Trustee to Holders of all amounts required to be distributed
hereunder upon the liquidation of the Issuer Trust pursuant to Section 9.4, or
upon the redemption of all of the Trust Securities pursuant to Section 4.2; (b)
the payment of any expenses owed by the Issuer Trust; and (c) the discharge of
all administrative duties of the Administrative Trustees, including the
performance of any tax reporting obligations with respect to the Issuer Trust or
the Holders.
SECTION 9.4. Liquidation.
(a) If an Early Dissolution Event specified in clause (a), (b) or (d)
of Section 9.2 occurs or upon the Expiration Date, the Issuer Trust shall be
liquidated by the Property Trustee as expeditiously as the Property Trustee
determines to be possible by distributing, after satisfaction of liabilities to
creditors of the Issuer Trust as provided by applicable law, to each Holder a
Like Amount of Debentures, subject to Section 9.4(d). Notice of liquidation
shall be given by the Property Trustee by first-class mail, postage prepaid
mailed not less than 30 nor more than 60 days prior to the Liquidation Date to
each Holder of Trust Securities at such Holder's address appearing in the
Securities Register. All such notices of liquidation shall:
(i) state the CUSIP Number of the Trust Securities;
(ii) state the Liquidation Date;
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(iii) state that from and after the Liquidation Date, the
Trust Securities will no longer be deemed to be Outstanding and any
Trust Securities Certificates not surrendered for exchange will be
deemed to represent a Like Amount of Debentures; and
(iv) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for
Debentures, or if Section 9.4(d) applies receive a Liquidation
Distribution, as the Property Trustee (after consultation with the
Administrative Trustees) shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect
the liquidation of the Issuer Trust and distribution of the Debentures to
Holders, the Property Trustee, either itself acting as exchange agent or through
the appointment of a separate exchange agent, shall establish a record date for
such distribution (which shall be not more than 30 days prior to the Liquidation
Date) and, establish such procedures as it shall deem appropriate to effect the
distribution of Debentures in exchange for the Outstanding Trust Securities
Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Debentures will be
issued to Holders of Trust Securities Certificates, upon surrender of such
Certificates to the exchange agent for exchange, (iii) any Trust Securities
Certificates not so surrendered for exchange will be deemed to represent a Like
Amount of bearing accrued and unpaid interest in an amount equal to the
accumulated and unpaid Distributions on such Trust Securities Certificates until
such certificates are so surrendered (and until such certificates are so
surrendered, no payments of interest or principal will be made to Holders of
Trust Securities Certificates with respect to such Debentures) and (iv) all
rights of Holders holding Trust Securities will cease, except the right of such
Holders to receive Debentures upon surrender of Trust Securities Certificates.
(d) If, notwithstanding the other provisions of this Section 9.4,
whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the Debentures in the manner provided
herein is determined by the Property Trustee not to be practical, or if an Early
Dissolution Event specified in clause (c) of Section 9.2 occurs, the Trust
Property shall be liquidated, and the Issuer Trust shall be dissolved and its
affairs wound-up, by the Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the dissolution, winding-up or other
termination of the Issuer Trust, Holders will be entitled to receive out of the
assets of the Issuer Trust available for distribution to Holders, after
satisfaction of liabilities to creditors of the Issuer Trust as provided by
applicable law, an amount equal to the Liquidation Amount per Trust Security
plus accumulated and unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution"). If, upon any such dissolution,
winding up or termination, the Liquidation Distribution can be paid only in part
because the Issuer Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Issuer Trust on the Trust Securities shall
be paid on a pro rata basis (based upon Liquidation Amounts). The Holders of the
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Common Securities will be entitled to receive Liquidation Distributions upon any
such dissolution, winding-up or termination pro rata (determined as aforesaid)
with Holders of Capital Securities, except that, if a Debenture Event of Default
specified in Section 5.1(1) or 5.1(2) of the Indenture has occurred and is
continuing, the Capital Securities shall have a priority over the Common
Securities as provided in Section 4.3.
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements
of Issuer Trust.
The Issuer Trust may not merge with or into, consolidate, amalgamate,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except pursuant
to this Section 9.5. At the request of the Holders of the Common Securities,
with the consent of the Holders of at least a Majority in Liquidation Amount of
the Capital Securities, and without the consent of the Issuer Trustees, the
Issuer Trust may merge with or into, consolidate, amalgamate, or be replaced by
or convey, transfer or lease its properties and assets substantially as an
entirety to a trust organized as such under the laws of any State; provided,
that (i) such successor entity either (a) expressly assumes all of the
obligations of the Issuer Trust with respect to the Capital Securities, or (b)
substitutes for the Capital Securities other securities having substantially the
same terms as the Capital Securities (the "Successor Securities") so long as the
Successor Securities have the same priority as the Capital Securities with
respect to distributions and payments upon liquidation, redemption and
otherwise, (ii) a trustee of such successor entity possessing the same powers
and duties as the Property Trustee is appointed to hold the Debentures, (iii)
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not cause the Capital Securities (including any Successor Securities)
to be downgraded by any nationally recognized statistical rating organization,
(iv) such merger, consolidation, amalgamation, replacement, conveyance, transfer
or lease does not adversely affect the rights, preferences and privileges of the
holders of the Capital Securities (including any Successor Securities) in any
material respect, (v) such successor entity has a purpose substantially
identical to that of the Issuer Trust, (vi) prior to such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, the Property Trustee
has received an Opinion of Counsel to the effect that (a) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the Holders of the
Capital Securities (including any Successor Securities) in any material respect,
and (b) following such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, neither the Issuer Trust nor such successor
entity will be required to register as an "investment company" under the
Investment Company Act, and (vii) the Depositor or its permitted transferee owns
all of the Common Securities of such successor entity and guarantees the
obligations of such successor entity under the Successor Securities at least to
the extent provided by the Guarantee Agreement. Notwithstanding the foregoing,
the Issuer Trust shall not, except with the consent of holders of all of the
Capital Securities, consolidate, amalgamate, merge with or into, or be replaced
by or convey, transfer or lease its properties and assets substantially as an
entirety to any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause the
Issuer Trust or
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the successor entity to be taxable as a corporation or classified as other than
a grantor trust for United States Federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders.
Except as set forth in Section 9.2, the death or incapacity of any
person having an interest, beneficial or otherwise, in Trust Securities shall
not operate to terminate this Trust Agreement, nor entitle the legal
representatives or heirs of such person or any Holder for such person, to claim
an accounting, take any action or bring any proceeding in any court for a
partition or winding up of the arrangements contemplated hereby, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any of
them.
SECTION 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by the
Administrative Trustees and the Holders of all of the Common Securities, without
the consent of any Holder of the Capital Securities, (i) to cure any ambiguity,
correct or supplement any provision herein that may be inconsistent with any
other provision herein, or to make any other provisions with respect to matters
or questions arising under this Trust Agreement, which shall not be inconsistent
with the other provisions of this Trust Agreement, or (ii) to modify, eliminate
or add to any provisions of this Trust Agreement to such extent as shall be
necessary to ensure that the Issuer Trust will not be taxable as a corporation
or classified as other than a grantor trust for United States Federal income tax
purposes at all times that any Trust Securities are outstanding or to ensure
that the Issuer Trust will not be required to register as an "investment
company" under the Investment Company Act; provided, however, that in the case
of either clause (i) or (ii), such action shall not adversely affect in any
material respect the interests of any Holder.
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Trust Agreement may be amended by the Administrative Trustees, the Property
Trustee, and the Holders of all of the Common Securities and with (i) the
consent of Holders of at least a Majority in Liquidation Amount of the Capital
Securities, and (ii) receipt by the Issuer Trustees of an Opinion of Counsel to
the effect that such amendment or the exercise of any power granted to the
Trustees or the Administrative Trustees in accordance with such amendment will
not affect the Trust's status as a grantor trust or cause the Issuer Trust to be
taxable as a corporation or as other than a grantor trust for United States
Federal income tax purposes or affect the Issuer Trust's exemption from status
as an "investment company" under the Investment Company Act.
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(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Holder (such consent being
obtained in accordance with Section 6.3 or 6.6 hereof), this Trust Agreement may
not be amended to (i) change the amount or timing of any Distribution on the
Trust Securities or otherwise adversely affect the amount of any Distribution
required to be made in respect of the Trust Securities as of a specified date,
or (ii) restrict the right of a Holder to institute suit for the enforcement of
any such payment on or after such date; and notwithstanding any other provision
herein, without the unanimous consent of the Holders (such consent being
obtained in accordance with Section 6.3 or 6.6 hereof), this paragraph (c) of
this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Issuer Trustee shall enter into or consent to any amendment to this Trust
Agreement that would cause the Issuer Trust to fail or cease to qualify for the
exemption from status as an "investment company" under the Investment Company
Act or to be taxable as a corporation or to be classified as other than a
grantor trust for United States Federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor and the Administrative Trustees, this Trust
Agreement may not be amended in a manner that imposes any additional obligation
on the Depositor or the Administrative Trustees.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees or the Property Trustee shall promptly provide to
the Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement that affects its
own rights, duties or immunities under this Trust Agreement. The Property
Trustee shall be entitled to receive an Opinion of Counsel and an Officers'
Certificate stating that any amendment to this Trust Agreement is in compliance
with this Trust Agreement.
SECTION 10.3. Separability.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 10.4. Governing Law.
This Trust Agreement and the rights and obligations of each of the
Holders, the Issuer Trust, the Depositor, and the Issuer Trustees with respect
to this Trust Agreement and the Trust Securities shall be construed in
accordance with and governed by the laws of the State of Delaware without
reference to its conflicts of laws provisions.
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SECTION 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day
that is not a Business Day, then such payment need not be made on such date but
may be made on the next succeeding day that is a Business Day (except as
otherwise provided in Sections 4.1(a) and 4.2(d)), with the same force and
effect as though made on the date fixed for such payment, and no Distributions
shall accumulate on such unpaid amount for the period after such date.
SECTION 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Issuer Trust, and any Issuer
Trustee, including any successor by operation of law. Except in connection with
a consolidation, merger or sale involving the Depositor that is permitted under
Article Eight of the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
SECTION 10.7. Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
SECTION 10.8. Reports, Notices and Demands.
Any report, notice, demand or other communication that by any provision
of this Trust Agreement is required or permitted to be given or served to or
upon any Holder or the Depositor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a Holder
of Capital Securities, to such Holder as such Holder's name and address may
appear on the Securities Register; and (b) in the case of the Holder of the
Common Securities or the Depositor, to State Street Corporation, Attention:
Secretary, facsimile no.: (617) 664-4006, or to such other address as may be
specified in a written notice by the Holder of the Common Securities or the
Depositor, as the case may be to the Property Trustee. Such notice, demand or
other communication to or upon a Holder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission. Such notice, demand or other communication to or upon the
Depositor shall be deemed to have been sufficiently given or made only upon
actual receipt of the writing by the Depositor.
Any notice, demand or other communication that by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Issuer, the Property Trustee, the Delaware Trustee, the Administrative Trustees
or the Trust shall be given in writing addressed to such Person as follows: (a)
with respect to the Property Trustee to The First National Bank of
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Chicago, One First National Plaza, Suite 0126, Chicago, Illinois 60670,
Attention: Corporate Trust Administration; (b) with respect to the Delaware
Trustee, to First Chicago Delaware Inc., 300 King Street, Wilmington, Delaware
19801, Attention: Michael J. Majchrzak (c) with respect to the Administrative
Trustees, to them at 61 Broadway, 15th Floor, New York, New York 10005 marked
"Attention: Administrative Trustees of State Street Capital Trust [I/II/III]"
and (d) with respect to the Issuer Trust, to its principal office specified in
Section 2.2, with a copy to the Property Trustee. Such notice, demand or other
communication to or upon the Issuer Trust, the Property Trustee or the
Administrative Trustees shall be deemed to have been sufficiently given or made
only upon actual receipt of the writing by the Issuer Trust, the Property
Trustee or such Administrative Trustee.
SECTION 10.9. Agreement Not to Petition.
Each of the Issuer Trustees and the Depositor agree for the benefit of
the Holders that, until at least one year and one day after the Issuer Trust has
been dissolved in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Issuer Trust under any bankruptcy,
insolvency, reorganization or other similar law (including the United States
Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in the
commencement of any proceeding against the Issuer Trust under any Bankruptcy
Law. If the Depositor takes action in violation of this Section 10.9, the
Property Trustee agrees, for the benefit of Holders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Issuer
Trust or the commencement of such action and raise the defense that the
Depositor has agreed in writing not to take such action and should be stopped
and precluded therefrom and such other defenses, if any, as counsel for the
Issuer Trustee or the Issuer Trust may assert.
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) Except as otherwise expressly provided herein, the Trust Indenture
Act shall apply as a matter of contract to this Trust Agreement for purposes of
interpretation, construction and defining the rights and obligations hereunder,
and this Trust Agreement, the Depositor and the Property Trustee shall be deemed
for all purposes hereof to be subject to and governed by the Trust Indenture Act
to the same extent as would be the case if this Trust Agreement were qualified
under that Act on the date hereof. Except as otherwise expressly provided
herein, if and to the extent that any provision of this Trust Agreement limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(b) The Property Trustee shall be the only Issuer Trustee that is a
trustee for the purposes of the Trust Indenture Act.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Issuer Trust.
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SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee
Agreement and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY
OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE AGREEMENT
AND THE INDENTURE, AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS
OF THE GUARANTEE AGREEMENT AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT
OF THE ISSUER TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS
OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE
ISSUER TRUST AND SUCH HOLDER AND SUCH OTHERS.
SECTION 10.12. Counterparts.
This Trust Agreement may contain more than one counterpart of the
signature page and this Trust Agreement may be executed by the affixing of the
signature of each of the Trustees of one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Trust Agreement.
STATE STREET CORPORATION,
as Depositor
By:
--------------------------------
Name:
Attest: Title:
-----------------------------
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
By:
--------------------------------
Name:
Attest: Title:
-----------------------------
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
By:
--------------------------------
Name:
Attest: Title:
-----------------------------
-----------------------------------
[Romano L. Peluso]
Attest: as Administrative Trustee
-----------------------------
-----------------------------------
[James E. Murphy]
Attest: as Administrative Trustee
-----------------------------
59
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STATE OF )
) ss:
COUNTY OF )
On _______________ before me, the undersigned, a Notary Public in and for
the _______________________________, personally appeared ___________________,
personally known to me (or provided to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument, and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that the foregoing instrument is the free act and deed of the entity upon
behalf of which such person acted.
WITNESS my hand and official seal
SIGNATURE: _____________________ (This area for official notarial seal)
60
<PAGE>
STATE OF )
) ss:
COUNTY OF )
On ____________ before me, the undersigned, a Notary Public in
and for the __________________________, personally appeared
________________________, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person whose name is subscribed to the
within instrument, and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that the foregoing instrument is the free act
and deed of the entity upon behalf of which such person acted.
WITNESS my hand and official seal
SIGNATURE:________________________ (This area for official notarial seal)
61
<PAGE>
STATE OF )
) ss:
COUNTY OF )
On _____________ before me, the undersigned, a Notary Public
in and for the __________________________, personally appeared
________________________, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person whose name is subscribed to the
within instrument, and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that the foregoing instrument is the free act
and deed of the entity upon behalf of which such person acted.
WITNESS my hand and official seal
SIGNATURE:________________________ (This area for official notarial seal)
62
<PAGE>
Exhibit A
CERTIFICATE OF TRUST
OF
STATE STREET CAPITAL TRUST [I/II/III]
This Certificate of Trust of State Street Capital Trust [I/II/III] (the
"Trust"), dated ___________, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del. C. ss. 3801 et seq.).
(a) Name. The name of the business trust being formed
hereby is State Street Capital Trust [I/II/III].
(b) Delaware Trustee. The name and business address of
the trustee of the Trust with a principal place of business in the State of
Delaware is First Chicago Delaware, Inc., 300 King Street, Wilmington, Delaware
19801.
(c) Effective Date. This Certificate of Trust shall be
effective as of ______________.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have executed this Certificate of Trust as of the date first above written.
FIRST CHICAGO DELAWARE, INC.
as Trustee
By:
------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
By:
------------------------------
Name:
Title:
<PAGE>
Exhibit B
[FORM OF CERTIFICATE DEPOSITORY AGREEMENT]
Letter of Representations
[Date]
The Depository Trust Company,
55 Water Street, 49th Floor,
New York, New York 10041-0099.
Attention: General Counsel's Office
Re: State Street Capital Trust [I/II/III]
_______% Capital Securities, Series A
CUSIP
-------------------------------------
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters
relating to the issuance and deposit with The Depository Trust Company ("DTC")
of the book-entry-only portion of the 8.035% Capital Securities, Series A (the
"Capital Securities"), of State Street Institutional Capital B, a statutory
business trust formed under the laws of the State of Delaware (the "Issuer"),
governed by the Amended and Restated Trust Agreement, dated as of______, between
State Street Corporation ("the Corporation"), as Depositor, The First National
Bank of Chicago, as Property Trustee, and First Chicago Delaware Inc., as
Delaware Trustee. The payment of distributions on the Capital Securities and
payments due upon liquidation of the Issuer or redemption of the Capital
Securities, to the extent the Issuer has funds available for the payment
thereof, are guaranteed by the Corporation to the extent set forth in a
Guarantee Agreement, dated as of_________, between the Corporation and The First
National Bank of Chicago, as Guarantee Trustee with respect to the Capital
Securities. The Corporation and the Issuer propose to sell the Capital
Securities to Goldman, Sachs & Co. and ________________________________ (the
"Initial Purchaser") pursuant to a Purchase Agreement, dated , by and among the
Initial Purchaser, the Issuer and the Corporation, and the Initial Purchasers
wish to take delivery of the Capital Securities through DTC. The First National
Bank of Chicago is acting as transfer agent and registrar with respect to the
Capital Securities (the "Transfer Agent and Registrar").
<PAGE>
The Depository Trust Company -2-
To induce DTC to accept the Capital Securities as eligible for
deposit at DTC, and to act in accordance with DTC's rules with respect to the
Capital Securities, the Issuer and the Transfer Agent and Registrar make the
following representations to DTC:
(a) Prior to the closing of the sale of the Capital Securities
to the Initial Purchasers on_____, there shall be deposited with, or held by the
Transfer Agent and Registrar as custodian for, DTC one or more global
certificates (individually and collectively, the "Global Certificate")
registered in the name of DTC's nominee, Cede & Co., representing an aggregate
of __________ Capital Securities and bearing the following legend:
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to Issuer
or its agent for registration of transfer, exchange, or payment, and
any certificate issued is registered in the name of Cede & Co. or in
such other name as is requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHER WISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
(b) The Amended and Restated Trust Agreement of the Issuer
provides for the voting by holders (with no provision for revocation of consents
or votes by subsequent holders) of the Capital Securities under certain limited
circumstances. The Issuer shall establish a record date for such purposes and
shall, to the extent possible, give DTC notice of such record date not less than
15 calendar days in advance of such record date.
(c) In the event of a stock split, conversion,
recapitalization, reorganization or any other similar transaction resulting in
the cancellation of all or any part of the Capital Securities outstanding, the
Issuer or the Transfer Agent and Registrar shall send DTC a notice of such event
as soon as possible but, at least 5 business days prior to the effective date of
such event.
(d) In the event of any distribution on, or an offering or
issuance of rights with respect to, the Capital Securities outstanding, the
Issuer or the Transfer Agent and Registrar shall send DTC a notice specifying:
(a) the amount of and conditions, if any, applicable to the payment of any such
distribution or any such offering or issuance of rights; (b) any applicable
expiration or deadline date, or any date by which any action on the part of the
holders of Capital Securities
<PAGE>
The Depository Trust Company -3-
is required; and (c) the date any required notice is to be mailed by or on
behalf of the Issuer to holders of Capital Securities or published by or on
behalf of the Issuer (whether by mail or publication, the "Publication Date").
Such notice shall be sent to DTC by a secure means (e.g., legible telecopy,
registered or certified mail, overnight delivery) in a timely manner designed to
assure that such notice is in DTC's possession no later than the close of
business on the business day before the Publication Date. The Issuer or the
Transfer Agent and Registrar will forward such notice either in a separate
secure transmission for each CUSIP number or in a secure transmission of
multiple CUSIP numbers (if applicable) that includes a manifest or list of each
CUSIP number submitted in that transmission. (The party sending such notice
shall have a method to verify subsequently the use of such means and the
timeliness of such notice.) The Publication Date shall be not less than 30
calendar days nor more than 60 calendar days prior to the payment of any such
distribution or any such offering or issuance of rights with respect to the
Capital Securities. After establishing the amount of payment to be made on the
Capital Securities, the Issuer or the Transfer Agent and Registrar will notify
DTC's Dividend Department of such payment 5 business days prior to payment date.
Notices to DTC's Dividend Department by telecopy shall be sent to (212)
709-1723. Such notices by mail or by any other means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
The Issuer or the Transfer Agent and Registrar shall confirm
DTC's receipt of such telecopy by telephoning the Dividend Department at (212)
709-1270.
(e) In the event of a redemption by the Issuer of the Capital
Securities, notice specifying the terms of the redemption and the Publication
Date of such notice shall be sent by the Issuer or the Transfer Agent and
Registrar to DTC not less than 30 calendar days prior to such event by a secure
means in the manner set forth in paragraph 4. Such redemption notice shall be
sent to DTC's Call Notification Department at (516) 227-4164 or (516) 227-4190,
and receipt of such notice shall be confirmed by telephoning (516) 227-4070.
Notice by mail or by any other means shall be sent to:
Call Notification Department
The Depository Trust Company
711 Stewart Avenue
<PAGE>
The Depository Trust Company -4-
Garden City, New York 11530-4719
(f) In the event of any invitation to tender the Capital
Securities, notice specifying the terms of the tender and the Publication Date
of such notice shall be sent by the Issuer or the Transfer Agent and Registrar
to DTC by a secure means and in a timely manner as described in paragraph 4.
Notices to DTC pursuant to this paragraph and notices of other corporate actions
(including mandatory tenders, exchanges and capital changes), shall be sent,
unless notification to another department is expressly provided for herein, by
telecopy to DTC's Reorganization Department at (212) 709-1093 or (212) 709-1094
and receipt of such notice shall be confirmed by telephoning (212) 709-6884, or
by mail or any other means to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
(g) All notices and payment advices sent to DTC shall contain
the CUSIP number or numbers of the Capital Securities and the accompanying
designation of the Capital Securities, which, as of the date of this letter, is
"State Street Institutional Capital B, 8.035% Capital Securities, Series A".
8. Distribution payments or other cash payments with respect
to the Capital Securities shall be governed by DTC's current Principal and
Income Payments Rider, a copy of which is attached hereto as Annex I. For
purposes of this letter, the term "Agent" used in Annex I shall be deemed to
refer to The First National Bank of Chicago or any successor Property Trustee
under the Amended and Restated Trust Agreement.
9. DTC may direct the Issuer and the Transfer Agent and
Registrar to use any other telecopy number or address of DTC as the number or
address to which notices or payments may be sent.
10. In the event of a conversion, redemption, or any other
similar transaction (e.g., tender made and accepted in response to the Issuer's
or the Transfer Agent and Registrar's invitation) necessitating a reduction in
the aggregate number of Capital Securities outstanding evidenced by the Global
Certificate, DTC, in its discretion: (a) may request the Issuer or the Transfer
Agent and Registrar to issue and countersign a new Global Certificate; or (b)
may make
<PAGE>
The Depository Trust Company -5-
an appropriate notation on the Global Certificate indicating the date and amount
of such reduction.
11. DTC may discontinue its services as a securities
depositary with respect to the Capital Securities at any time by giving
reasonable prior written notice to the Issuer and the Transfer Agent and
Registrar (at which time DTC will confirm with the Issuer or the Transfer Agent
and Registrar the aggregate number of Capital Securities deposited with it) and
discharging its responsibilities with respect thereto under applicable law.
Under such circumstances, the Issuer may determine to make alternative
arrangements for book-entry settlement for the Capital Securities, make
available one or more separate global certificates evidencing Capital Securities
to any Participant having Capital Securities credited to its DTC account, or
issue definitive Capital Securities to the beneficial holders thereof, and in
any such case, DTC agrees to cooperate fully with the Issuer and the Transfer
Agent and Registrar and to return the Global Certificate, duly endorsed for
transfer as directed by the Issuer or the Transfer Agent and Registrar, together
with any other documents of transfer reasonably requested by the Issuer or the
Transfer Agent and Registrar.
12. In the event that the Issuer determines that beneficial
owners of Capital Securities shall be able to obtain definitive Capital
Securities, the Issuer or the Transfer Agent and Registrar shall notify DTC of
the availability of certificates. In such event, the Issuer or the Transfer
Agent and Registrar shall issue, transfer and exchange certificates in
appropriate amounts, as required by DTC and others, and DTC agrees to cooperate
fully with the Issuer and the Transfer Agent and Registrar and to return the
Global Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Registrar.
13. This letter may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
<PAGE>
The Depository Trust Company -6-
Nothing herein shall be deemed to require the Transfer Agent and
Registrar to advance funds on behalf of State Street Capital Trust [I/II/III].
Very truly yours,
STATE STREET CAPITAL TRUST [I/II/III]
(As Issuer)
By:
-------------------------------------
Name:
Title: Administrative Trustee
FIRST NATIONAL BANK OF CHICAGO
(As Paying Agent)
By:
-------------------------------------
Name:
Title:
RECEIVED AND ACCEPTED:
THE DEPOSITORY TRUST COMPANY
By:
----------------------------
Authorized Officer
<PAGE>
Exhibit C
[FORM OF COMMON SECURITIES CERTIFICATE]
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE DEPOSITOR OR
AN AFFILIATE OF THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW
AND SECTION 5.11 OF THE TRUST AGREEMENT AND ONLY IN CONNECTION
WITH A SIMULTANEOUS DELEGATION AND ASSIGNMENT OF THE EXPENSE
AGREEMENT REFERRED TO THEREIN
Certificate Number Number of Common Securities
C-1
Certificate Evidencing Common Securities
of
State Street Capital Trust [I/II/III]
_____% Common Securities
(liquidation amount $1,000 per Common Security)
State Street Capital Trust [I/II/III], a statutory business trust
created under the laws of the State of Delaware (the "Issuer Trust"), hereby
certifies that State Street Corporation (the "Holder") is the registered owner
of [Amount] ( ) common securities of the Issuer Trust representing undivided
-----
common beneficial interests in the assets of the Issuer Trust and designated the
% Common Securities (liquidation amount $1,000 per Common Security) (the
- ------
"Common Securities"). Except in accordance with Section 5.11 of the Trust
Agreement (as defined below) the Common Securities are not transferable and any
attempted transfer hereof other than in accordance therewith shall be void. The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this certificate and
the Common Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Trust Agreement
of the Issuer Trust, dated as of , as the same may be amended from
--------------
time to time (the "Trust Agreement"), among State Street Corporation, as
Depositor, The First National Bank of Chicago, as Property Trustee, First
Chicago Delaware Inc., as Delaware Trustee, and the Holders of Trust Securities,
including the designation of the terms of the Common Securities as set forth
therein. The Issuer Trust will furnish a copy of the Trust Agreement to the
Holder without charge upon written request to the Issuer Trust at its principal
place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
<PAGE>
Terms used but not defined herein have the meanings set forth in the
Trust Agreement.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Issuer
Trust has executed this certificate this day of .
---- --------------
STATE STREET CAPITAL TRUST [I/II/III]
By:
----------------------------------
Name:
Title: Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Common Securities referred to in the above mentioned
Trust Agreement.
Dated:
The First National Bank of Chicago
as Property Trustee
By:
--------------------------------
Name:
Title:
C-2
<PAGE>
Exhibit D
[FORM OF CAPITAL SECURITIES CERTIFICATE]
[IF THE CAPITAL SECURITIES CERTIFICATE IS TO BE EVIDENCED BY A
BOOK-ENTRY CAPITAL SECURITIES CERTIFICATE, INSERT--This Capital Securities
Certificate is a BookEntry Capital Securities Certificate within the meaning of
the Trust Agreement hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Capital Securities Certificate is
exchangeable for Capital Securities Certificates registered in the name of a
person other than the Depositary or its nominee only in the limited
circumstances described in the Trust Agreement and may not be transferred except
as a whole by the Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the Depositary, except in
the limited circumstances described in the Trust Agreement.
Unless this Capital Security Certificate is presented by an authorized
representative of The Depository Trust Company, a New York Corporation ("DTC"),
to State Street Institutional Capital B or its agent for registration of
transfer, exchange or payment, and any Capital Security Certificate issued is
registered in the name of Cede & Co. or such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO A PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.]
[NO EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (EACH, A "PLAN"), NO
ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S
INVESTMENT IN THE ENTITY (A "PLAN ASSET ENTITY"), AND NO PERSON INVESTING "PLAN
ASSETS" OF ANY PLAN, MAY ACQUIRE OR HOLD THIS CAPITAL SECURITIES CERTIFICATE OR
ANY INTEREST HEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE
EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION
CLASS EXEMPTION ("PTCE") 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER
APPLICABLE EXEMPTION WITH RESPECT TO SUCH PURCHASE OR HOLDING AND, IN THE CASE
OF ANY PURCHASER OR HOLDER RELYING ON ANY EXEMPTION OTHER THAN PTCE 96-23,
95-60, 91-38, 90-1 OR 84-14, HAS COMPLIED WITH ANY REQUEST BY THE DEPOSITOR OR
THE ISSUER TRUST FOR AN OPINION OF COUNSEL OR OTHER EVIDENCE WITH RESPECT TO THE
AVAILABILITY OF SUCH EXEMPTION. ANY PURCHASER OR HOLDER OF THIS CAPITAL
SECURITIES CERTIFICATE OR ANY INTEREST HEREIN WILL BE DEEMED TO HAVE REPRESENTED
BY ITS PURCHASE AND HOLDING HEREOF THAT IT
<PAGE>
EITHER (A) IS NOT A PLAN OR A PLAN ASSET ENTITY AND IS NOT PURCHASING SUCH
SECURITIES ON BEHALF OF OR WITH "PLAN ASSETS" OF ANY PLAN, OR (B) IS ELIGIBLE
FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14
OR ANOTHER APPLICABLE EXEMPTION WITH RESPECT TO SUCH PURCHASE OR HOLDING.]
E-2
<PAGE>
Certificate Number Number of Capital Securities
P-1
CUSIP NO.
Certificate Evidencing Capital Securities
of
State Street Capital Trust [I/II/III]
____ % Capital Securities, Series A
(liquidation amount $1,000 per Capital Security)
State Street Capital Trust [I/II/III], a statutory business trust created
under the laws of the State of Delaware (the "Issuer Trust"), hereby certifies
that Cede & Co. (the "Holder") is the registered owner of [Amount] (______)
capital securities of the Trust representing an undivided preferred beneficial
interest in the assets of the Trust and designated the State Street Capital
Trust [I/II/III] ______% Capital Securities, Series A (liquidation amount $1,000
per Capital Security) (the "Capital Securities"). The Capital Securities are
transferable on the books and records of the Issuer Trust, in person or by a
duly authorized attorney, upon surrender of this certificate duly endorsed and
in proper form for transfer as provided in Section 5.5 of the Trust Agreement
(as defined below). The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Capital Securities are set
forth in, and this certificate and the Capital Securities represented hereby are
issued and shall in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Issuer Trust, dated as of
____________, as the same may be amended from time to time (the "Trust
Agreement"), among State Street Corporation, as Depositor, The First National
Bank of Chicago, as Property Trustee, First Chicago Delaware Inc., as Delaware
Trustee, and the Holders of Trust Securities, including the designation of the
terms of the Capital Securities as set forth therein. The Holder is entitled to
the benefits of the Guarantee Agreement, dated as of ____________ (the
"Guarantee Agreement"), by and between State Street Corporation, as Guarantor,
and The First National Bank of Chicago, as Guarantee Trustee, to the extent
provided therein. The Issuer Trust will furnish a copy of the Issuer Trust
Agreement and the Guarantee Agreement to the Holder without charge upon written
request to the Issuer Trust at its principal place of business or registered
office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
E-3
<PAGE>
IN WITNESS WHEREOF, one of the Administrative Trustees of the Issuer Trust
has executed this certificate this _____________ day of ________________.
STATE STREET CAPITAL TRUST [I/II/III]
By:
---------------------------------
Name:
Title: Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Capital Securities referred to in the above mentioned
Trust Agreement.
Dated:
THE FIRST NATIONAL BANK OF CHICAGO
as Property Trustee
By:
-----------------------------
Name:
Title:
E-4
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital
Security to:
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints________________________________________________________
________________________________________________________________________________
agent to transfer this Capital Security Certificate on the books of the Issuer
Trust. The agent may substitute another to act for him or her.
Date: ________________
Signature:
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Capital
Security Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
E-5
<PAGE>
Exhibit 4.25
================================================================================
GUARANTEE AGREEMENT
by and between
STATE STREET CORPORATION
as Guarantor
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Guarantee Trustee
relating to
STATE STREET CAPITAL TRUST [I/II/III]
---------------------------
Dated as of
--------------
---------------------------
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions..........................................1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.....................5
SECTION 2.2. List of Holders......................................5
SECTION 2.3. Reports by the Guarantee Trustee.....................5
SECTION 2.4. Periodic Reports to the Guarantee Trustee............6
SECTION 2.5. Evidence of Compliance with Conditions Precedent.....6
SECTION 2.6. Events of Default; Waiver............................6
SECTION 2.7. Event of Default; Notice.............................6
SECTION 2.8. Conflicting Interests................................7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee...........7
SECTION 3.2. Certain Rights of Guarantee Trustee..................9
SECTION 3.3. Compensation; Indemnity; Fees.......................10
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee; Eligibility......................11
SECTION 4.2. Appointment, Removal and Resignation
of the Guarantee Trustee............................12
ARTICLE V
GUARANTEE
-i-
<PAGE>
SECTION 5.1. Guarantee...........................................13
SECTION 5.2. Waiver of Notice and Demand.........................13
SECTION 5.3. Obligations Not Affected............................13
SECTION 5.4. Rights of Holders...................................14
SECTION 5.5. Guarantee of Payment................................14
SECTION 5.6. Subrogation.........................................14
SECTION 5.7. Independent Obligations.............................15
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.1. Subordination.......................................15
SECTION 6.2. Pari Passu Guarantees...............................15
ARTICLE VII
TERMINATION
SECTION 7.1. Termination.........................................16
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Successors and Assigns..............................16
SECTION 8.2. Amendments..........................................16
SECTION 8.3. Notices.............................................17
SECTION 8.4. Benefit.............................................18
SECTION 8.5. Governing Law.......................................18
SECTION 8.6. Counterparts........................................18
-ii-
<PAGE>
GUARANTEE AGREEMENT, dated as of _______________, between STATE STREET
CORPORATION, a Massachusetts corporation (the "Guarantor"), having its principal
office at 225 Franklin Street, Boston, Massachusetts 02110, and THE FIRST
NATIONAL BANK OF CHICAGO, a national banking association, as trustee (the
"Guarantee Trustee"), for the benefit of the Holders (as defined herein) from
time to time of the Capital Securities (as defined herein) of STATE STREET
CAPITAL TRUST [I/II/III], a Delaware statutory business trust (the "Issuer
Trust").
RECITALS
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as
of ____________ (the "Trust Agreement"), among State Street Corporation, as
Depositor, the Property Trustee, the Delaware Trustee, and the Administrative
Trustees (each as named therein) and the holders from time to time of undivided
beneficial interests in the assets of the Issuer Trust, the Issuer Trust is
issuing $___,000,000 aggregate Liquidation Amount (as defined in the Trust
Agreement) of its ____ % Capital Securities, Series A (liquidation amount $1,000
per capital security) (the "Capital Securities"), representing preferred
undivided beneficial interests in the assets of the Issuer Trust and having the
terms set forth in the Trust Agreement; and
WHEREAS, the Capital Securities will be issued by the Issuer Trust and
the proceeds thereof, together with the proceeds from the issuance of the Issuer
Trust's Common Securities (as defined herein), will be used to purchase the
Debentures (as defined in the Trust Agreement) of the Guarantor, which
Debentures will be deposited with The First National Bank of Chicago, as
Property Trustee under the Trust Agreement, as trust assets; and
WHEREAS, as an incentive for the Holders to purchase Capital
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth herein, to pay to the Holders of the Capital Securities the
Guarantee Payments (as defined herein) and to make certain other payments on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase of Capital Securities
by each Holder, which purchase the Guarantor hereby acknowledges shall benefit
the Guarantor, the Guarantor executes and delivers this Guarantee Agreement for
the benefit of the Holders from time to time.
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.
For all purposes of this Guarantee Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
<PAGE>
(a) The terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) All other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) The words "include", "includes" and "including" shall be deemed
to be followed by the phrase "without limitation";
(d) All accounting terms used but not defined herein have the meanings
assigned to them in accordance with United States generally accepted accounting
principles;
(e) Unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Guarantee Agreement; and
(f) The words "hereby", "herein", "hereof" and "hereunder" and other
words of similar import refer to this Guarantee Agreement as a whole and not to
any particular Article, Section or other subdivision.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Board of Directors" means the board of directors of the Guarantor or
the Executive Committee of the board of directors of the Guarantor (or any other
committee of the board of directors of the Guarantor performing similar
functions) or a committee designated by the board of directors of the Guarantor
(or such committee), comprised of two or more members of the board of directors
of the Guarantor or officers of the Guarantor, or both.
"Capital Securities" has the meaning specified in the recitals
to this Guarantee Agreement.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer Trust.
"Event of Default" means (i) a default by the Guarantor in any of its
payment obligations under this Guarantee Agreement or (ii) a default by the
Guarantor in any other obligation hereunder that remains unremedied for 30 days.
-2-
<PAGE>
"Guarantee Agreement" means this Guarantee Agreement, as modified,
amended or supplemented from time to time.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Capital Securities, to the extent not
paid or made by or on behalf of the Issuer Trust: (i) any accumulated and unpaid
Distributions (as defined in the Trust Agreement) required to be paid on the
Capital Securities, to the extent the Issuer Trust shall have funds on hand
available therefor at such time; (ii) the Redemption Price (as defined in the
Trust Agreement) with respect to any Capital Securities called for redemption by
the Issuer Trust, to the extent the Issuer Trust shall have funds on hand
available therefor at such time; and (iii) upon a voluntary or involuntary
dissolution, winding-up or liquidation of the Issuer Trust, unless Debentures
are distributed to the Holders, the lesser of (a) the Liquidation Distribution
(as defined in the Trust Agreement) with respect to the Capital Securities, to
the extent that the Issuer Trust shall have funds on hand available therefor at
such time, and (b) the amount of assets of the Issuer Trust remaining available
for distribution to Holders on liquidation of the Issuer.
"Guarantee Trustee" means The First National Bank of Chicago, solely in
its capacity as Guarantee Trustee and not in its individual capacity, until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee Agreement, and thereafter means each
such Successor Guarantee Trustee.
"Guarantor" has the meaning specified in the first paragraph of this
Guarantee Agreement.
"Holder" means any Holder (as defined in the Trust Agreement) of any
Capital Securities; provided, however, that in determining whether the holders
of the requisite percentage of Capital Securities have given any request,
notice, consent or waiver hereunder, "Holder" shall not include the Guarantor,
the Guarantee Trustee, or any Affiliate of the Guarantor or the Guarantee
Trustee.
"Indenture" means the Junior Subordinated Indenture, dated as of
December 15, 1996, between State Street Corporation and The First National Bank
of Chicago, as trustee, as the same may be modified, amended or supplemented
from time to time.
"Issuer Trust" has the meaning specified in the first paragraph of
this Guarantee
Agreement.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Capital Securities" means,
except as provided by the Trust Indenture Act, Capital Securities representing
more than 50% of the aggregate Liquidation Amount (as defined in the Trust
Agreement) of all Capital Securities then Outstanding (as defined in the Trust
Agreement).
-3-
<PAGE>
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman or a Vice Chairman of the Board of Directors
of such Person or the President or a Vice President of such Person, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
such person. Any Officers' Certificate delivered with respect to compliance with
a condition or covenant provided for in this Guarantee Agreement shall include:
(a) a statement by each officer signing the Officers' Certificate that
such officer has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officers' Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint-stock company, company,
limited liability company, trust, business trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
Senior Vice President, any Vice President, any Assistant Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, any
Trust Officer or Assistant Trust Officer or any other officer of the Corporate
Trust Department of the Guarantee Trustee and also means, with respect to a
particular matter, any other officer to whom such matter is referred because of
that officer's knowledge of and familiarity with the particular subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Agreement" means the Amended and Restated Trust Agreement of the
Issuer Trust referred to in the recitals to this Guarantee Agreement, as
modified, amended or supplemented from time to time.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this Guarantee Agreement was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
-4-
<PAGE>
"Vice President," when used with respect to the Corporation, means any
duly appointed vice president, whether or not designated by a number or a word
or words added before or after the title "vice president."
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.
Except as otherwise expressly provided herein, the Trust Indenture Act
shall apply as a matter of contract to this Guarantee Agreement for purposes of
interpretation, construction and defining the rights and obligations hereunder,
and this Guarantee Agreement, the Guarantor and the Guarantee Trustee shall be
deemed for all purposes hereof to be subject to and governed by the Trust
Indenture Act to the same extent as would be the case if this Guarantee
Agreement were qualified under that Act on the date hereof. Except as otherwise
expressly provided herein, if and to the extent that any provision of this
Guarantee Agreement limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
SECTION 2.2. List of Holders.
(a) The Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee (a) semiannually, on or before June 30 and December 31 of each
year, a list, in such form as the Guarantee Trustee may reasonably require, of
the names and addresses of the Holders (a "List of Holders") as of a date not
more than 15 days prior to the delivery thereof, and (b) at such other times as
the Guarantee Trustee may request in writing, within 30 days after the receipt
by the Guarantor of any such request, a List of Holders as of a date not more
than 15 days prior to the time such list is furnished, in each case to the
extent such information is in the possession or control of the Guarantor and has
not otherwise been received by the Guarantee Trustee in its capacity as such.
The Guarantee Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with the requirements of Section
311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3. Reports by the Guarantee Trustee.
Within 60 days after May 15 of each year, commencing May 15, 1999, the
Guarantee Trustee shall provide to the Holders such reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. If this Guarantee Agreement
shall have been qualified under the Trust Indenture
-5-
<PAGE>
Act, the Guarantee Trustee shall also comply with the requirements of Section
313(d) of the Trust Indenture Act.
SECTION 2.4. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee and the Holders
such documents, reports and information, if any, as required by Section 314 of
the Trust Indenture Act and the compliance certificate required by Section 314
of the Trust Indenture Act, in the form, in the manner and at the times required
by Section 314 of the Trust Indenture Act, provided that such documents, reports
and information shall be required to be provided to the Securities and Exchange
Commission only if this Guarantee Agreement shall have been qualified under the
Trust Indenture Act.
SECTION 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer of the Guarantor pursuant to Section 314(c)(1) may be given
in the form of an Officers' Certificate.
SECTION 2.6. Events of Default; Waiver.
The Holders of at least a Majority in Liquidation Amount of the Capital
Securities may, by vote, on behalf of the Holders of all the Capital Securities,
waive any past default or Event of Default and its consequences. Upon such
waiver, any such default or Event of Default shall cease to exist, and any
default or Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Guarantee Agreement, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
SECTION 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of
an Event of Default known to the Guarantee Trustee, transmit by mail, first
class postage prepaid, to the Holders, notice of any such Event of Default known
to the Guarantee Trustee, unless such Event of Default has been cured before the
giving of such notice, provided that, except in the case of a default in the
payment of a Guarantee Payment, the Guarantee Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Guarantee Trustee in good faith determines that the withholding of such notice
is in the interests of the Holders.
-6-
<PAGE>
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written
notice, or a Responsible Officer charged with the administration of this
Guarantee Agreement shall have obtained written notice, of such Event of
Default.
SECTION 2.8. Conflicting Interests.
The Trust Agreement and the Indenture shall be deemed to be
specifically described in this Guarantee Agreement for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for
the benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Guarantee Trustee hereunder. The right, title and interest of the Guarantee
Trustee, as such, hereunder shall automatically vest in any Successor Guarantee
Trustee, upon acceptance by such Successor Guarantee Trustee of its appointment
hereunder, and such vesting and cessation of title shall be effective whether or
not conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of the
Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee Agreement (including pursuant to Section 2.1), and no implied
covenants shall be read into this Guarantee Agreement against the Guarantee
Trustee. If an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6), the Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Guarantee Agreement, and use the same
degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action, its
own negligent failure to act or its own wilful misconduct, except that:
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(i) Prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee
Trustee shall be determined solely by the express provisions
of this Guarantee Agreement (including pursuant to Section
2.1), and the Guarantee Trustee shall not be liable except for
the performance of such duties and obligations as are
specifically set forth in this Guarantee Agreement (including
pursuant to Section 2.1); and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and conforming to
the requirements of this Guarantee Agreement; but in the case
of any such certificates or opinions that by any provision
hereof or of the Trust Indenture Act are specifically required
to be furnished to the Guarantee Trustee, the Guarantee
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Guarantee Agreement.
(ii) The Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the
Guarantee Trustee, unless it shall be proved that the Guarantee Trustee
was negligent in ascertaining the pertinent facts upon which such
judgment was made.
(iii) The Guarantee Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in Liquidation Amount of the Capital Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee Agreement.
(iv) Subject to Section 3.1(b), no provision of this Guarantee
Agreement shall require the Guarantee Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its
rights or powers, if the Guarantee Trustee shall have reasonable
grounds for believing that the repayment of such funds or liability is
not reasonably assured to it under the terms of this Guarantee
Agreement or adequate indemnity against such risk or liability is not
reasonably assured to it.
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SECTION 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document reasonably believed by it to be
genuine and to have been signed, sent or presented by the proper party
or parties.
(ii) Any direction or act of the Guarantor contemplated by
this Guarantee Agreement shall be sufficiently evidenced by an
Officers' Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a matter
be proved or established before taking, suffering or omitting to take
any action hereunder, the Guarantee Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad faith on its
part, request and rely upon an Officers' Certificate which, upon
receipt of such request from the Guarantee Trustee, shall be promptly
delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel, and
the written advice or opinion of such legal counsel with respect to
legal matters shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or opinion.
Such legal counsel may be legal counsel to the Guarantor or any of its
Affiliates and may be one of its employees. The Guarantee Trustee shall
have the right at any time to seek instructions concerning the
administration of this Guarantee Agreement from any court of competent
jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holder unless such Holder
shall have provided to the Guarantee Trustee such adequate security and
indemnity as would satisfy a reasonable person in the position of the
Guarantee Trustee against the costs, expenses (including attorneys'
fees and expenses) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable
advances as may be requested by the Guarantee Trustee; provided that
nothing contained in this Section 3.2(a)(v) shall be taken to relieve
the Guarantee Trustee, upon the occurrence of an Event of Default, of
its obligation to exercise the rights and powers vested in it by this
Guarantee Agreement.
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(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through its agents or attorneys, and the Guarantee Trustee shall not
be responsible for any misconduct or negligence on the part of any such
agent or attorney appointed by it with due care hereunder.
(viii) Whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking
any other action hereunder, the Guarantee Trustee (A) may request
instructions from the Holders, (B) may refrain from enforcing such
remedy or right or taking such other action until such instructions are
received, and (C) shall be protected in acting in accordance with such
instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose
any duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
SECTION 3.3. Compensation; Indemnity; Fees.
The Guarantor agrees:
(a) to pay to the Guarantee Trustee from time to time such
reasonable compensation for all services rendered by it hereunder as
may be agreed by the Guarantor and the Guarantee Trustee from time to
time (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Guarantee Trustee upon request for all reasonable
expenses, disbursements and advances incurred or made by the Guarantee
Trustee in accordance with any provision of this Guarantee Agreement
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
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(c) to indemnify the Guarantee Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without
negligence, wilful misconduct or bad faith on the part of the Guarantee
Trustee, arising out of or in connection with the acceptance or
administration of this Guarantee Agreement, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
The Guarantee Trustee will not claim or exact any lien or charge on any
Guarantee Payments as a result of any amount due to it under this Guarantee
Agreement.
The provisions of this Section 3.3 shall survive the termination of this
Guarantee Agreement or the resignation or removal of the Guarantee Trustee.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of
at least $50,000,000, and shall be a corporation meeting the
requirements of Section 310(a) of the Trust Indenture Act. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of its supervising or examining
authority, then, for the purposes of this Section 4.1 and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to
so act under Section 4.1(a), the Guarantee Trustee shall immediately resign in
the manner and with the effect set out in Section 4.2.
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
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SECTION 4.2. Appointment, Removal and Resignation of the Guarantee
Trustee.
(a) Subject to Section 4.2(c), the Guarantee Trustee may be appointed
or removed at any time by the action of the Holders of a Majority in Liquidation
Amount of the Capital Securities delivered to the Guarantee Trustee and the
Guarantor (i) for cause or (ii) if a Debenture Event of Default (as defined in
the Trust Agreement) shall have occurred and be continuing at any time.
(b) Subject to Section 4.2(c), the Guarantee Trustee may resign from
office (without need for prior or subsequent accounting) by giving written
notice thereof to the Holders and the Guarantor and by appointing a successor
Guarantee Trustee. The Guarantee Trustee shall appoint a successor by requesting
from at least three Persons meeting the requirements of Section 4.1(a) their
expenses and charges to serve as the Guarantee Trustee, and selecting the Person
who agrees to the lowest expenses and charges.
(c) The Guarantee Trustee appointed hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed and shall have accepted
such appointment. No removal or resignation of a Guarantee Trustee shall be
effective until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor and, in the case of any
resignation, the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Holders and the Guarantor of a notice of resignation, the
resigning Guarantee Trustee may petition, at the expense of the Guarantor, any
court of competent jurisdiction for appointment of a Successor Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Guarantee Trustee.
(e) If a resigning Guarantee Trustee shall fail to appoint a successor,
or if a Guarantee Trustee shall be removed or become incapable of acting as
Guarantee Trustee and a replacement shall not be appointed prior to such
resignation or removal, or if a vacancy shall occur in the office of Guarantee
Trustee for any cause, the Holders of the Capital Securities, by the action of
the Holders of record of not less than 25% in aggregate Liquidation Amount (as
defined in the Trust Agreement) of the Capital Securities then Outstanding (as
defined in the Trust Agreement) delivered to such Guarantee Trustee, may appoint
a Successor Guarantee Trustee or Trustees. If no successor Guarantee Trustee
shall have been so appointed by the Holders of the Capital Securities and
accepted appointment, any Holder, on behalf of such Holder and all others
similarly situated, or any other Guarantee Trustee, may petition any court of
competent jurisdiction for the appointment of a successor Guarantee Trustee.
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ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by or on behalf of the Issuer Trust), as and when due, regardless of any
defense, right of set-off or counterclaim that the Issuer Trust may have or
assert, except the defense of payment. The Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Guarantor to the Holders or by causing the Issuer Trust to pay such amounts
to the Holders.
SECTION 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the
Guarantee Trustee, the Issuer Trust or any other Person before proceeding
against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice
of redemption and all other notices and demands.
SECTION 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee Agreement shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer Trust of any express or
implied agreement, covenant, term or condition relating to the Capital
Securities to be performed or observed by the Issuer Trust;
(b) the extension of time for the payment by the Issuer Trust
of all or any portion of the Distributions (other than an extension of
time for payment of Distributions that results from the extension of
any interest payment period on the Debentures as provided in the
Indenture), Redemption Price, Liquidation Distribution or any other
sums payable under the terms of the Capital Securities or the extension
of time for the performance of any other obligation under, arising out
of, or in connection with, the Capital Securities;
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the
terms of the Capital Securities, or any action on the part of the
Issuer Trust granting indulgence or extension of any kind;
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<PAGE>
(d) the voluntary or involuntary liquidation, dissolution,
receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of
debt of, or other similar proceedings affecting, the Issuer Trust or
any of the assets of the Issuer Trust;
(e) any invalidity of, or defect or deficiency in,
the Capital Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor
(other than payment of the underlying obligation), it being the intent
of this Section 5.3 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain the
consent of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement
will be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders of a Majority in
Liquidation Amount of the Capital Securities have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of this Guarantee Agreement or exercising any trust
or power conferred upon the Guarantee Trustee under this Guarantee Agreement;
and (iv) any Holder may institute a legal proceeding directly against the
Guarantor to enforce its rights under this Guarantee Agreement without first
instituting a legal proceeding against the Guarantee Trustee, the Issuer Trust
or any other Person.
SECTION 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by payment of
the Guarantee Payments in full (without duplication of amounts theretofore paid
by the Issuer Trust) or upon the distribution of Debentures to Holders as
provided in the Trust Agreement.
SECTION 5.6. Subrogation.
The Guarantor shall be subrogated to all rights (if any) of the Holders
against the Issuer Trust in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee
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Agreement; provided, however, that the Guarantor shall not (except to the extent
required by mandatory provisions of law) be entitled to enforce or exercise any
rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Guarantee Agreement, if, at the time of any such payment, any amounts are due
and unpaid under this Guarantee Agreement. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor agrees to hold
such amount in trust for the Holders and to pay over such amount to the Holders.
SECTION 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer Trust with respect to the Capital
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.1. Subordination.
The obligations of the Guarantor under this Guarantee Agreement will
constitute unsecured obligations of the Guarantor and will rank subordinate and
junior in right of payment to all Senior Indebtedness (as defined in the
Indenture) of the Guarantor to the extent and in the manner set forth in the
Indenture with respect to the Debentures, and the provisions of Article XIII of
the Indenture will apply, mutatis mutandis, to the obligations of the Guarantor
hereunder. The obligations of the Guarantor hereunder do not constitute Senior
Indebtedness (as defined in the Indenture) of the Guarantor.
SECTION 6.2. Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee Agreement shall
rank pari passu with the obligations of the Guarantor under (i) any similar
guarantee agreements issued by the Guarantor on behalf of the holders of
preferred or capital securities issued by any Issuer Trust (as defined in the
Indenture), (ii) the Indenture and the Securities (as defined therein) issued
thereunder; (iii) the Expense Agreement (as defined in the Trust Agreement) and
any similar expense agreements entered into by the Guarantor in connection with
the offering of Capital Securities (as defined in the Indenture) by any Issuer
Trust (as defined in the Indenture), and (iv) any other security, guarantee or
other agreement or obligation that is expressly stated to rank pari passu with
the obligations of the Guarantor under this Guarantee Agreement or with any
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obligation that ranks pari passu with the obligations of the Guarantor under
this Guarantee Agreement.
ARTICLE VII
TERMINATION
SECTION 7.1. Termination.
This Guarantee Agreement shall terminate and be of no further force and
effect upon (i) full payment of the Redemption Price (as defined in the Trust
Agreement) of all Capital Securities, (ii) the distribution of Debentures to the
Holders in exchange for all of the Capital Securities or (iii) full payment of
the amounts payable in accordance with Article IX of the Trust Agreement upon
liquidation of the Issuer Trust. Notwithstanding the foregoing, this Guarantee
Agreement will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder is required to repay any sums paid with respect to
Capital Securities or this Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Capital
Securities then outstanding. Except in connection with a consolidation, merger
or sale involving the Guarantor that is permitted under Article VIII of the
Indenture and pursuant to which the successor or assignee agrees in writing to
perform the Guarantor's obligations hereunder, the Guarantor shall not assign
its obligations hereunder, and any purported assignment other than in accordance
with this provision shall be void.
SECTION 8.2. Amendments.
Except with respect to any changes that do not adversely affect the
rights of the Holders in any material respect (in which case no consent of the
Holders will be required), this Guarantee Agreement may only be amended with the
prior approval of the Holders of not less than a Majority in Liquidation Amount
of the Capital Securities. The provisions of Article VI of the Trust Agreement
concerning meetings of the Holders shall apply to the giving of such approval.
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SECTION 8.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address or telecopy number set
forth below or such other address or telecopy number as the Guarantor may give
notice to the Guarantee Trustee and the Holders:
State Street Corporation
225 Franklin Street
Boston, Massachusetts 02110
Attention: Secretary
Telecopy: 617-664-4006
(b) if given to the Guarantee Trustee, at the Issuer Trust's address or
telecopy number set forth below or such other address or telecopy number as the
Guarantee Trustee may give notice to the Guarantor and Holders:
The First National Bank of Chicago
One First National Bank Plaza, Suite 0126
Chicago, Illinois 60670
Attention: Corporate Trust Administration
Telecopy: 312-407-1708
with a copy to:
State Street Institutional Capital B
c/o State Street Bank and Trust Company, N.A.
61 Broadway, 15th Floor
New York, New York 10005
(c) if given to any Holder, at the address set forth on the books and
records of the Issuer Trust.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
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SECTION 8.4. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and
is not separately transferable from the Capital Securities.
SECTION 8.5. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 8.6. Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Guarantee
Agreement as of the day and year first above written.
STATE STREET CORPORATION
By:
-----------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Guarantee Trustee
By:
-----------------------------------
Name:
Title:
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Exhibit 5.1
[Ropes & Gray Letterhead]
April 1, 1998
State Street Corporation
225 Franklin Street
Boston, Massachusetts 02110
State Street Capital Trust I
c/o State Street Bank and Trust
Company, N.A.
61 Broadway, 15th Floor
New York, New York 10005
State Street Capital Trust II
c/o State Street Bank and Trust
Company, N.A.
61 Broadway, 15th Floor
New York, New York 10005
State Street Capital Trust III
c/o State Street Bank and Trust
Company, N.A.
61 Broadway, 15th Floor
New York, New York 10005
Re: Registration Statement on Form S-3 (Registration No. 333-_____) of
State Street Corporation, State Street Capital Trust I, State Street
Capital Trust II, and State Street Capital Trust III and Post-
Effective Amendment No. 1 to Registration Statement on Form S-3
(Registration No. 333-2143)
--------------------------------------------------------------------
Ladies and Gentlemen:
You have asked our opinion concerning (a) the proposed issue by State
Street Corporation, a Massachusetts corporation (the "Company"), of up to
$350,000,000 aggregate amount (exclusive of the amount of any guarantees) of (i)
senior debt securities (the "Senior Debt Securities") consisting of senior
unsecured debentures, notes and/or other evidences of indebtedness, in one or
more series, to be issued under the Senior Indenture between the Company and
U.S. Bank Trust National Association, as successor trustee, dated as of
<PAGE>
State Street Corporation
State Street Capital Trust I
State Street Capital Trust II
State Street Capital Trust III -2- April 1, 1998
August 2, 1993 (the "Senior Indenture"), (ii) subordinated debt securities (the
"Subordinated Debt Securities" and, together with the Senior Debt Securities,
the "Debt Securities") consisting of subordinated unsecured debentures, notes
and/or other evidences of indebtedness in one or more series, to be issued under
a Subordinated Indenture (the "Subordinated Indenture") that is expected to be
entered into between the Company and U.S. Bank Trust National Association, as
trustee, and junior subordinated debentures, to be issued under a Junior
Subordinated Indenture (the "Junior Subordinated Indenture") dated as of
December 15, 1996 between the Company and The First National Bank of Chicago, as
trustee, (iii) shares of preferred stock of the Company, no par value (the
"Preferred Stock"), to be issued in one or more series and (iv) unconditional
and irrevocable guarantees (the "Guarantees" and each a "Guarantee") of certain
payments and obligations of each of the Issuer Trusts (as defined herein) to be
issued by the Company under one or more Guarantee Agreements (the "Guarantee
Agreements" and each a "Guarantee Agreement") that are expected to be entered
into between the Company and The First National Bank of Chicago, as debenture
trustee, with respect to Capital Securities proposed to be issued by each such
Issuer Trust; and (b) the proposed issue by State Street Capital Trust I, State
Street Capital Trust II and State Street Capital Trust III, each a Delaware
business trust (each, an "Issuer Trust" and together, the "Issuer Trusts"), of
up to $350,000,000 aggregate amount of preferred securities representing
beneficial ownership interests in such Issuer Trusts (the "Capital Securities").
The Debt Securities, the Preferred Stock, the Guarantees and the Capital
Securities are referred to herein collectively as the "Securities".
We have acted as counsel for the Company and each of the Issuer Trusts in
connection with the proposed issue and sale of the Securities. We are familiar
with the proceedings taken by the Company and each Issuer Trust in respect
thereof and have examined originals or certified or attested copies of such
certificates, records and documents as we have deemed necessary for the purposes
of this opinion. We have assumed the genuineness and authenticity of all
documents submitted to us as originals and the conformity to originals of all
documents submitted to us as copies.
We express no opinion as to the laws of any jurisdiction other than those
of the Commonwealth of Massachusetts, the Delaware General Corporation Law and
the federal laws of the United States of America.
For purposes of this opinion, we have examined and relied upon the
information set forth in the Registration Statement (as defined herein) and such
other documents and records that we have deemed necessary.
Based on and subject to the foregoing, we are of the opinion that:
<PAGE>
State Street Corporation
State Street Capital Trust I
State Street Capital Trust II
State Street Capital Trust III -3- April 1, 1998
1. When the Registration Statement (the "Registration Statement")
relating to the Securities filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Act") has become effective
under the Act, the terms of the Debt Securities and of their issuance and sale
have been duly established in conformity with the applicable Indenture, and the
Debt Securities have been duly executed and authenticated in accordance with the
applicable Indenture and issued and sold as contemplated in the Registration
Statement, the Debt Securities will constitute valid and legally binding
obligations of the Company, subject to (i) bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting the
rights and remedies of creditors and (ii) general principles of equity,
regardless of whether applied in a proceeding in equity or at law.
2. When the Registration Statement has become effective under the Act,
the terms of the Preferred Stock of a particular series and of its issuance and
sale have been duly established in conformity with the Company's Articles of
Organization, a certificate of designation, preferences and rights with respect
to the Preferred Stock of such series has been duly filed with the Secretary of
State of the Commonwealth of Massachusetts, and the Preferred Stock of such
series has been duly issued and sold as contemplated in the Registration
Statement, the Preferred Stock of such series will be validly issued, fully
paid, and nonassessable.
3. When the Registration Statement has become effective under the Act, the
terms of each Guarantee and of its issuance have been duly established in
conformity with the applicable Guarantee Agreement and such Guarantee has been
duly executed and authenticated in accordance with the applicable Guarantee
Agreement and issued as contemplated in the Registration Statement, each
Guarantee will constitute a valid and legally binding obligation of the Company,
subject to (i) bankruptcy, insolvency, reorganization, moratorium and other laws
of general application affecting the rights and remedies of creditors and (ii)
general principles of equity, regardless of whether applied in a proceeding in
equity or at law.
We understand that this opinion is to be used in connection with the
Registration Statement. We consent to the filing of this opinion with and as
part of said Registration Statement and the use of our name therein and in the
related Prospectus under the caption "Validity of Securities".
Very truly yours,
/s/ Ropes & Gray
Ropes & Gray
<PAGE>
Exhibit 5.2
[LETTERHEAD OF RICHARDS, LAYTON & FINGER, P.A.]
April 1, 1998
State Street Capital Trust I State Street Corporation
c/o State Street Bank and Trust Company, N.A. 225 Franklin Street
61 Broadway, 15th Floor Boston, Massachusetts 02110
New York, New York 10006
Re: State Street Capital Trust I
----------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for State Street
Corporation, a Massachusetts corporation (the "Company"), and State Street
Capital Trust I, a Delaware business trust (the "Trust"), in connection with
the matters set forth herein. At your request, this opinion is being furnished
to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of March 25, 1998
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on March 25, 1998;
(b) The Declaration of Trust of the Trust, dated March 25, 1998, among
the Company, as depositor, and the trustees of the Trust named therein;
(c) The Registration Statement (the "Registration Statement") on Form
S-3, including a preliminary prospectus (the "Prospectus"), relating to the
Capital Securities of the Trust representing preferred undivided beneficial
interests in the assets of the Trust (each, a "Capital Security" and
collectively, the "Capital Securities"), as proposed to be filed by the Company,
the Trust and the other registrants listed therein with the Securities and
Exchange Commission (the "SEC") on or about April 1, 1998;
<PAGE>
State Street Capital Trust I
State Street Corporation
April 1, 1998
Page 2
(d) A form of Amended and Restated Trust Agreement of the Trust, to be
entered into among the Company, as depositor, the trustees of the Trust named
therein, and the several holders, from time to time, of undivided beneficial
interests in the assets of the Trust (including Exhibits A, C and D thereto)
(the "Trust Agreement"), attached as an exhibit to the Registration Statement;
and
(e) A Certificate of Good Standing for the Trust, dated April 1,
1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed above, and we have assumed that there exists no
provision in any document that we have not reviewed that bears upon or is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and that the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Capital Security is to be issued by the Trust (collectively, the "Capital
Security Holders") of a Capital Securities Certificate for such Capital Security
and the payment for the Capital Security acquired by it, in accordance with the
Trust Agreement and the Registration Statement, (vii) that the Capital
<PAGE>
State Street Capital Trust I
State Street Corporation
April 1, 1998
Page 3
Securities are issued and sold to the Capital Security Holders in accordance
with the Trust Agreement and the Registration Statement, and (viii) that the
Delaware Trustee satisfies the requirements of (S)3807 of the Delaware Business
Trust Act, 12 Del. C. (S) 3801, et seq. (the "Act"). We have not participated
------- -- ---
in the preparation of the Registration Statement and assume no responsibility
for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Act.
2. The Capital Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Capital Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Capital Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the SEC as an exhibit to
the Registration Statement. In addition, we hereby consent to the use of our
name under the heading "Validity of Securities" in the Prospectus. In giving
the foregoing consents, we do not thereby admit that we come within the category
of Persons whose consent is required under Section 7 of the Securities Act of
1933, as amended, or the rules and regulations of the SEC thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
<PAGE>
Exhibit 5.3
[LETTERHEAD OF RICHARDS, LAYTON & FINGER, P.A.]
April 1, 1998
State Street Capital Trust II State Street Corporation
c/o State Street Bank and Trust Company, N.A. 225 Franklin Street
61 Broadway, 15th Floor Boston, Massachusetts 02110
New York, New York 10006
Re: State Street Capital Trust II
-----------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for State Street
Corporation, a Massachusetts corporation (the "Company"), and State Street
Capital Trust II, a Delaware business trust (the "Trust"), in connection with
the matters set forth herein. At your request, this opinion is being furnished
to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of March 25, 1998
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on March 25, 1998;
(b) The Declaration of Trust of the Trust, dated March 25, 1998, among
the Company, as depositor, and the trustees of the Trust named therein;
(c) The Registration Statement (the "Registration Statement") on Form
S-3, including a preliminary prospectus (the "Prospectus"), relating to the
Capital Securities of the Trust representing preferred undivided beneficial
interests in the assets of the Trust (each, a "Capital Security" and
collectively, the "Capital Securities"), as proposed to be filed by the Company,
the Trust and the other registrants listed therein with the Securities and
Exchange Commission (the "SEC") on or about April 1, 1998;
<PAGE>
State Street Capital Trust II
State Street Corporation
April 1, 1998
Page 2
(d) A form of Amended and Restated Trust Agreement of the Trust, to be
entered into among the Company, as depositor, the trustees of the Trust named
therein, and the several holders, from time to time, of undivided beneficial
interests in the assets of the Trust (including Exhibits A, C and D thereto)
(the "Trust Agreement"), attached as an exhibit to the Registration Statement;
and
(e) A Certificate of Good Standing for the Trust, dated April 1,
1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed above, and we have assumed that there exists no
provision in any document that we have not reviewed that bears upon or is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and that the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Capital Security is to be issued by the Trust (collectively, the "Capital
Security Holders") of a Capital Securities Certificate for such Capital Security
and the payment for the Capital Security acquired by it, in accordance with the
Trust Agreement and the Registration Statement, (vii) that the Capital
<PAGE>
State Street Capital Trust II
State Street Corporation
April 1, 1998
Page 3
Securities are issued and sold to the Capital Security Holders in accordance
with the Trust Agreement and the Registration Statement, and (viii) that the
Delaware Trustee satisfies the requirements of (S)3807 of the Delaware Business
Trust Act, 12 Del. C. (S) 3801, et seq. (the "Act"). We have not participated
------- -- ---
in the preparation of the Registration Statement and assume no responsibility
for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Act.
2. The Capital Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Capital Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Capital Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the SEC as an exhibit to
the Registration Statement. In addition, we hereby consent to the use of our
name under the heading "Validity of Securities" in the Prospectus. In giving
the foregoing consents, we do not thereby admit that we come within the category
of Persons whose consent is required under Section 7 of the Securities Act of
1933, as amended, or the rules and regulations of the SEC thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
<PAGE>
Exhibit 5.4
[LETTERHEAD OF RICHARDS, LAYTON & FINGER, P.A.]
April 1, 1998
State Street Capital Trust III State Street Corporation
c/o State Street Bank and Trust Company, N.A. 225 Franklin Street
61 Broadway, 15th Floor Boston, Massachusetts 02110
New York, New York 10006
Re: State Street Capital Trust III
------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for State Street
Corporation, a Massachusetts corporation (the "Company"), and State Street
Capital Trust III, a Delaware business trust (the "Trust"), in connection with
the matters set forth herein. At your request, this opinion is being furnished
to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of March 25, 1998
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on March 25, 1998;
(b) The Declaration of Trust of the Trust, dated March 25, 1998, among
the Company, as depositor, and the trustees of the Trust named therein;
(c) The Registration Statement (the "Registration Statement") on Form
S-3, including a preliminary prospectus (the "Prospectus"), relating to the
Capital Securities of the Trust representing preferred undivided beneficial
interests in the assets of the Trust (each, a "Capital Security" and
collectively, the "Capital Securities"), as proposed to be filed by the Company,
the Trust and the other registrants listed therein with the Securities and
Exchange Commission (the "SEC") on or about April 1, 1998;
<PAGE>
State Street Capital Trust III
State Street Corporation
April 1, 1998
Page 2
(d) A form of Amended and Restated Trust Agreement of the Trust, to be
entered into among the Company, as depositor, the trustees of the Trust named
therein, and the several holders, from time to time, of undivided beneficial
interests in the assets of the Trust (including Exhibits A, C and D thereto)
(the "Trust Agreement"), attached as an exhibit to the Registration Statement;
and
(e) A Certificate of Good Standing for the Trust, dated April 1,
1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed above, and we have assumed that there exists no
provision in any document that we have not reviewed that bears upon or is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and that the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Capital Security is to be issued by the Trust (collectively, the "Capital
Security Holders") of a Capital Securities Certificate for such Capital Security
and the payment for the Capital Security acquired by it, in accordance with the
Trust Agreement and the Registration Statement, (vii) that the Capital
<PAGE>
State Street Capital Trust III
State Street Corporation
April 1, 1998
Page 3
Securities are issued and sold to the Capital Security Holders in accordance
with the Trust Agreement and the Registration Statement, and (viii) that the
Delaware Trustee satisfies the requirements of (S)3807 of the Delaware Business
Trust Act, 12 Del. C. (S) 3801, et seq. (the "Act"). We have not participated
------- -- ---
in the preparation of the Registration Statement and assume no responsibility
for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Act.
2. The Capital Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Capital Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Capital Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the SEC as an exhibit to
the Registration Statement. In addition, we hereby consent to the use of our
name under the heading "Validity of Securities" in the Prospectus. In giving
the foregoing consents, we do not thereby admit that we come within the category
of Persons whose consent is required under Section 7 of the Securities Act of
1933, as amended, or the rules and regulations of the SEC thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 No. 333- ) and Post-effective Amendment No. 1
to Registration Statement (Form S-3 No. 333-2143) and to the incorporation by
reference therein of our report dated January 13, 1998, with respect to the
consolidated financial statements of State Street Corporation incorporated by
reference in its Annual Report (Form 10-K) for the year ending December 31,
1997, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Boston, Massachusetts
April 1, 1998
<PAGE>
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________
FORM T-1
Statement of Eligibility Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
U.S. BANK TRUST NATIONAL ASSOCIATION
(FORMERLY KNOWN AS FIRST TRUST NATIONAL ASSOCIATION)
(Exact name of Trustee as specified in its charter)
United States 41-0257700
(State of Incorporation) (I.R.S. Employer
Identification No.)
First Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
(Address of Principal Executive Offices) (Zip Code)
STATE STREET CORPORATION
(Exact name of registrant as specified in its charter)
Massachusetts 04-2456637
(State of Incorporation) (I.R.S. Employer Identification No.)
225 Franklin Street
Boston, Massachusetts 02110
(Address of Principal Executive Offices) (Zip Code)
DEBT SECURITIES
(Title of the Indenture Securities)
<PAGE>
GENERAL
-------
1. General Information Furnish the following information as to the trustee.
-------------------
(A) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency
Washington, D.C.
(B) Whether it is authorized to exercise corporate trust powers.
Yes
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS If the obligor or any underwriter
------------------------------------------
for the obligor is an affiliate of the Trustee, describe each such
affiliation.
None
See Note following item 16.
Items 3-15 are not applicable because to the best of the Trustee's
knowledge the obligor is not in default under any Indenture for which the
Trustee acts as Trustee.
16. LIST OF EXHIBITS List below all exhibits filed as a part of this statement
----------------
of eligibility and qualification.
1. Copy of Articles of Association.*
2. Copy of Certificate of Authority to Commence Business.*
3. Authorization of the Trustee to exercise corporate trust powers (included
in Exhibits 1 and 2; no separate instrument).*
4. Copy of existing By-Laws.*
5. Copy of each Indenture referred to in Item 4. N/A.
6. The consents of the Trustee required by Section 321(b) of the act.
7. Copy of the latest report of condition of the Trustee published pursuant
to law or the requirements of its supervising or examining authority is
incorporated by reference to Registration Number 333-42147.
* Incorporated by reference to Registration Number 22-27000.
<PAGE>
NOTE
The answers to this statement insofar as such answers relate to what
persons have been underwriters for any securities of the obligors within three
years prior to the date of filing this statement, or what persons are owners of
10% or more of the voting securities of the obligors, or affiliates, are based
upon information furnished to the Trustee by the obligors. While the Trustee
has no reason to doubt the accuracy of any such information, it cannot accept
any responsibility therefor.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, U.S. BANK TRUST NATIONAL ASSOCIATION, an Association organized and
existing under the laws of the United States, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, and its seal to be hereunto affixed and attested, all
in the City of Saint Paul and State of Minnesota on the 30th day of March, 1998.
U.S. BANK TRUST NATIONAL ASSOCIATION
/s/ Kathe M. Barrett
________________________________
Kathe M. Barrett
Trust Officer
/s/ Eve D. Kaplan
- ------------------------
Eve D. Kaplan
Assistant Secretary
<PAGE>
EXHIBIT 6
CONSENT
In accordance with section 321(b) of the Trust Indenture Act of 1939, the
undersigned, U.S. BANK TRUST NATIONAL ASSOCIATION hereby consents that reports
of examination of the undersigned by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
DATED: March 30, 1998
U.S. BANK TRUST NATIONAL ASSOCIATION
/s/ Kathe M. Barrett
________________________________
Kathe M. Barrett
Trust Officer
<PAGE>
Exhibit 25.2
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
-----------------------------
State Street Corporation
(Exact name of obligor as specified in its charter)
Massachusetts 04-2456637
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
225 Franklin Street
Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Junior Subordinated Debt Securities
(Title of Indenture Securities)
<PAGE>
Item 1. General Information. Furnish the following
--------------------
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of
Governors of the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor
-----------------------------
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part
----------------
of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
<PAGE>
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Chicago
and the State of Illinois, on this 25th day of March, 1998.
The First National Bank of Chicago,
Trustee
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* Exhibit 1,2,3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 16 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 25.1 to the Registration Statement on Form S-3 of
SunAmerica, Inc., filed with the Securities and Exchange Commission on October
25, 1996 (Registration No. 333-14201).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 25, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between State
Street Corporation and The First National Bank of Chicago, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
The First National Bank of Chicago
By /s/ John R. Prendiville
John R. Prendiville
Vice President
<PAGE>
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Consolidated Report of Condition for Insured Commercial and State-Chartered
Savings Banks for December 31,1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in C400
------
ASSETS
<S> <C> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1) 0081 4,267,336 1.a.
b. Interest-bearing balances(2) 0071 6,893,837 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)............ 1773 5,691,722 2.b.
3. Federal funds sold and securities purchased under agreements to
resell 1350 6,339,940 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) RCFD 2122 25,202,984 4.a.
b. LESS: Allowance for loan and lease losses RCFD 3123 419,121 4.b.
c. LESS: Allocated transfer risk reserve RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) 2125 24,783,863 4.d.
5. Trading assets (from Schedule RD-D) 3545 6,703,332 5.
6. Premises and fixed assets (including capitalized leases) 2145 743,426 6.
7. Other real estate owned (from Schedule RC-M) 2150 7,727 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) 2130 134,959 8.
9. Customers' liability to this bank on acceptances outstanding 2155 644,340
10. Intangible assets (from Schedule RC-M) 2143 268,501 10.
11. Other assets (from Schedule RC-F) 2160 2,004,432 11.
12. Total assets (sum of items 1 through 11) 2170 58,483,415 12.
</TABLE>
- ------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
<TABLE>
<CAPTION>
Schedule RC-Continued
Dollar Amounts in
Thousands Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) RCON 2200 21,756,846 13.a
(1) Noninterest-bearing(1) RCON 6631 9,197,227 13.a.1
(2) Interest-bearing RCON 6636 559,619 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) RCFN 2200 14,811,410 13.b.
(1) Noninterest bearing RCFN 6631 332,801 13.b.1
(2) Interest-bearing RCFN 6636 14,478,609 13.b.2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 4,535,422 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 43,763 15.a
b. Trading Liabilities(from Schedule RC-D)............................................ RCFD 3548 6,523,239 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less RCFD 2332 1,360,165 16.a
b. With a remaining maturity of than one year through three years A547 576,492 16.b
c. With a remaining maturity of more than three years ................................ A548 703,981 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding RCFD 2920 644,341 18
19. Subordinated notes and debentures (2) RCFD 3200 1,700,000 19
20. Other liabilities (from Schedule RC-G) RCFD 2930 1,322,077 20
21. Total liabilities (sum of items 13 through 20) RCFD 2948 53,987,736 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus RCFD 3838 0 23
24. Common stock RCFD 3230 200,858 24
25. Surplus (exclude all surplus related to preferred stock) RCFD 3839 2,999,001 25
26. a. Undivided profits and capital reserves RCFD 3632 1,273,239 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities RCFD 8434 24,096 26.b.
27. Cumulative foreign currency translation adjustments RCFD 3284 (1,515) 27
28. Total equity capital (sum of items 23 through 27) RCFD 3210 4,495,679 28
29. Total liabilities and equity capital (sum of items 21 and 28) RCFD 3300 58,483,415 29
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external Number
auditors as of any date during 1996.........RCFD 6724 .......N/A M.1
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors (may
be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------------
(1) Includes total demand deposits and noninterest-bearing time and
savings deposits.
(2) Includes limited-life preferred stock and related surplus.
<PAGE>
Exhibit 25.3
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
-----------------------------
State Street Capital Trust I
(Exact name of obligor as specified in its charter)
Delaware To Be Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
225 Franklin Street
Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Capital Securities
(Title of Indenture Securities)
<PAGE>
Item 1. General Information. Furnish the following
--------------------
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
------------------------------
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part
-----------------
of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
<PAGE>
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Chicago
and the State of Illinois, on this 25th day of March, 1998.
The First National Bank of Chicago,
Trustee
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 16 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 25.1 to the Registration Statement on Form S-3 of
SunAmerica, Inc., filed with the Securities and Exchange Commission on October
25, 1996 (Registration No. 333-14201).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 25, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between
State Street Capital Trust I and The First National Bank of Chicago, the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By /s/ John R. Prendiville
John R. Prendiville
Vice President
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT 7
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31,1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in C400
----
ASSETS
<S> <C> <C> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1) 0081 4,267,336 1.a.
b. Interest-bearing balances(2) 0071 6,893,837 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)............ 1773 5,691,722 2.b.
3. Federal funds sold and securities purchased under agreements to
resell 1350 6,339,940 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) RCFD 2122 25,202,984 4.a.
b. LESS: Allowance for loan and lease losses RCFD 3123 419,121 4.b.
c. LESS: Allocated transfer risk reserve RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) 2125 24,783,863 4.d.
5. Trading assets (from Schedule RD-D) 3545 6,703,332 5.
6. Premises and fixed assets (including capitalized leases) 2145 743,426 6.
7. Other real estate owned (from Schedule RC-M) 2150 7,727 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) 2130 134,959 8.
9. Customers' liability to this bank on acceptances outstanding 2155 644,340 9.
10. Intangible assets (from Schedule RC-M) 2143 268,501 10.
11. Other assets (from Schedule RC-F) 2160 2,004,432 11.
12. Total assets (sum of items 1 through 11) 2170 58,483,415 12.
</TABLE>
- -------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) RCON 2200 21,756,846 13.a
(1) Noninterest-bearing(1) RCON 6631 9,197,227 13.a.1
(2) Interest-bearing RCON 6636 559,619 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) RCFN 2200 14,811,410 13.b.
(1) Noninterest bearing RCFN 6631 332,801 13.b.1
(2) Interest-bearing RCFN 6636 14,478,609 13.b.2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 4,535,422 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 43,763 15.a
b. Trading Liabilities(from Schedule RC-D)........................ RCFD 3548 6,523,239 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less RCFD 2332 1,360,165 16.a
b. With a remaining maturity of than one year through three years A547 576,492 16.b
. c. With a remaining maturity of more than three years ........... A548 703,981 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding RCFD 2920 644,341 18
19. Subordinated notes and debentures (2) RCFD 3200 1,700,000 19
20. Other liabilities (from Schedule RC-G) RCFD 2930 1,322,077 20
21. Total liabilities (sum of items 13 through 20) RCFD 2948 53,987,736 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus RCFD 3838 0 23
24. Common stock RCFD 3230 200,858 24
25. Surplus (exclude all surplus related to preferred stock) RCFD 3839 2,999,001 25
26. a. Undivided profits and capital reserves RCFD 3632 1,273,239 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities RCFD 8434 24,096 26.b.
27. Cumulative foreign currency translation adjustments RCFD 3284 (1,515) 27
28. Total equity capital (sum of items 23 through 27) RCFD 3210 4,495,679 28
29. Total liabilities and equity capital (sum of items 21 and 28) RCFD 3300 58,483,415 29
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external
auditors as of any date during 1996 .........RCFD 6724 .....N/A M.1
1 = Independent audit of the bank conducted in accordance
with generally accepted auditing standards by a certified
public accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company
conducted in accordance with generally accepted auditing
standards by a certified public accounting firm which
submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed by other
external auditors (may be required by state chartering
authority)
5 = Review of the bank's financial statements by external
auditors
6 = Compilation of the bank's financial statements by external
auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------------
(1) Includes total demand deposits and noninterest-bearing
time and savings deposits.
(2) Includes limited-life preferred stock and related surplus.
<PAGE>
Exhibit 25.4
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
-----------------------------
State Street Capital Trust II
(Exact name of obligor as specified in its charter)
Delaware To Be Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
225 Franklin Street
Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Capital Securities
(Title of Indenture Securities)
<PAGE>
Item 1. General Information. Furnish the following
--------------------
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of
Governors of the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor
-----------------------------
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part
-----------------
of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
<PAGE>
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Chicago
and the State of Illinois, on this 25th day of March, 1998.
The First National Bank of Chicago,
Trustee
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 16 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 25.1 to the Registration Statement on Form S-3 of
SunAmerica, Inc., filed with the Securities and Exchange Commission on October
25, 1996 (Registration No. 333-14201).
<PAGE>
EXHIBIT 6
---------
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 25, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between
State Street Capital Trust II and The First National Bank of Chicago, the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By /s/ John R. Prendiville
John R. Prendiville
Vice President
<PAGE>
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31,1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in C400
-------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1) 0081 4,267,336 1.a.
b. Interest-bearing balances(2) 0071 6,893,837 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)............ 1773 5,691,722 2.b.
3. Federal funds sold and securities purchased under agreements to
resell 1350 6,339,940 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) RCFD 2122 25,202,984 4.a.
b. LESS: Allowance for loan and lease losses RCFD 3123 419,121 4.b.
c. LESS: Allocated transfer risk reserve RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) 2125 24,783,863 4.d.
5. Trading assets (from Schedule RD-D) 3545 6,703,332 5.
6. Premises and fixed assets (including capitalized leases) 2145 743,426 6.
7. Other real estate owned (from Schedule RC-M) 2150 7,727 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) 2130 134,959 8.
9. Customers' liability to this bank on acceptances outstanding 2155 644,340 9.
10. Intangible assets (from Schedule RC-M) 2143 268,501 10.
11. Other assets (from Schedule RC-F) 2160 2,004,432 11.
12. Total assets (sum of items 1 through 11) 2170 58,483,415 12.
</TABLE>
- -------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) RCON 2200 21,756,846 13.a
(1) Noninterest-bearing(1) RCON 6631 9,197,227 13.a.1
(2) Interest-bearing RCON 6636 559,619 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) RCFN 2200 14,811,410 13.b.
(1) Noninterest bearing RCFN 6631 332,801 13.b.1
(2) Interest-bearing RCFN 6636 14,478,609 13.b.2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 4,535,422 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 43,763 15.a
b. Trading Liabilities(from Schedule RC-D) RCFD 3548 6,523,239 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less RCFD 2332 1,360,165 16.a
b. With a remaining maturity of than one year through three years A547 576,492 16.b
c. With a remaining maturity of more than three years A548 703,981 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding RCFD 2920 644,341 18
19. Subordinated notes and debentures (2) RCFD 3200 1,700,000 19
20. Other liabilities (from Schedule RC-G) RCFD 2930 1,322,077 20
21. Total liabilities (sum of items 13 through 20) RCFD 2948 53,987,736 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus RCFD 3838 0 23
24. Common stock RCFD 3230 200,858 24
25. Surplus (exclude all surplus related to preferred stock) RCFD 3839 2,999,001 25
26. a. Undivided profits and capital reserves RCFD 3632 1,273,239 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities RCFD 8434 24,096 26.b.
27. Cumulative foreign currency translation adjustments RCFD 3284 (1,515) 27
28. Total equity capital (sum of items 23 through 27) RCFD 3210 4,495,679 28
29. Total liabilities and equity capital (sum of items 21 and 28) RCFD 3300 58,483,415 29
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external Number
auditors as of any date during 1996..........RCFD 6724.......N/A M.1
1 = Independent audit of the bank conducted in accordance
with generally accepted auditing standards by a certified
public accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company
conducted in accordance with generally accepted auditing
standards by a certified public accounting firm which
submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed by other
external auditors (may be required by state chartering
authority)
5 = Review of the bank's financial statements by external
auditors
6 = Compilation of the bank's financial statements by external
auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------------
(1) Includes total demand deposits and noninterest-bearing time
and savings deposits.
(2) Includes limited-life preferred stock and related surplus.
<PAGE>
EXHIBIT 25.5
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
-----------------------------
State Street Capital Trust III
(Exact name of obligor as specified in its charter)
Delaware To Be Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
225 Franklin Street
Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Capital Securities
(Title of Indenture Securities)
<PAGE>
Item 1. General Information. Furnish the following
--------------------
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of
Governors of the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor
------------------------------
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part
-----------------
of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
<PAGE>
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Chicago
and the State of Illinois, on this 25th day of March, 1998.
The First National Bank of Chicago,
Trustee
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 16 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 25.1 to the Registration Statement on Form S-3 of
SunAmerica, Inc., filed with the Securities and Exchange Commission on October
25, 1996 (Registration No. 333-14201).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 25, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between
State Street Capital Trust III and The First National Bank of Chicago, the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By /s/ John R. Prendiville
John R. Prendiville
Vice President
<PAGE>
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31,1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in C400
---------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule RC-A):
a. Noninterest-bearing balances and currency and coin(1) 0081 4,267,336 1.a.
b. Interest-bearing balances(2) 0071 6,893,837 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)............ 1773 5,691,722 2.b.
3. Federal funds sold and securities purchased under agreements to
resell 1350 6,339,940 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) RCFD 2122 25,202,984 4.a.
b. LESS: Allowance for loan and lease losses RCFD 3123 419,121 4.b.
c. LESS: Allocated transfer risk reserve RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) 2125 24,783,863 4.d.
5. Trading assets (from Schedule RD-D) 3545 6,703,332 5.
6. Premises and fixed assets (including capitalized leases) 2145 743,426 6.
7. Other real estate owned (from Schedule RC-M) 2150 7,727 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) 2130 134,959 8.
9. Customers' liability to this bank on acceptances outstanding 2155 644,340 9.
10. Intangible assets (from Schedule RC-M) 2143 268,501 10.
11. Other assets (from Schedule RC-F) 2160 2,004,432 11.
12. Total assets (sum of items 1 through 11) 2170 58,483,415 12.
</TABLE>
- -------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
<TABLE>
<CAPTION>
Schedule RC-Continued
Dollar Amounts in
Thousands Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) RCON 2200 21,756,846 13.a
(1) Noninterest-bearing(1) RCON 6631 9,197,227 13.a.1
(2) Interest-bearing RCON 6636 559,619 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) RCFN 2200 14,811,410 13.b.
(1) Noninterest bearing RCFN 6631 332,801 13.b.1
(2) Interest-bearing RCFN 6636 14,478,609 13.b.2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 4,535,422 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 43,763 15.a
b. Trading Liabilities(from Schedule RC-D)............................................ RCFD 3548 6,523,239 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less RCFD 2332 1,360,165 16.a
b. With a remaining maturity of than one year through three years A547 576,492 16.b
. c. With a remaining maturity of more than three years ................................ A548 703,981 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding RCFD 2920 644,341 18
19. Subordinated notes and debentures (2) RCFD 3200 1,700,000 19
20. Other liabilities (from Schedule RC-G) RCFD 2930 1,322,077 20
21. Total liabilities (sum of items 13 through 20) RCFD 2948 53,987,736 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus RCFD 3838 0 23
24. Common stock RCFD 3230 200,858 24
25. Surplus (exclude all surplus related to preferred stock) RCFD 3839 2,999,001 25
26. a. Undivided profits and capital reserves RCFD 3632 1,273,239 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities RCFD 8434 24,096 26.b.
27. Cumulative foreign currency translation adjustments RCFD 3284 (1,515) 27
28. Total equity capital (sum of items 23 through 27) RCFD 3210 4,495,679 28
29. Total liabilities and equity capital (sum of items 21 and 28) RCFD 3300 58,483,415 29
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below
that best describes the most comprehensive level of auditing work
performed for the bank by independent external Number
auditors as of any date during 1996.........RCFD 6724........N/A M.1
1 = Independent audit of the bank conducted in accordance
with generally accepted auditing standards by a certified
public accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company
conducted in accordance with generally accepted auditing
standards by a certified public accounting firm which
submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
4 = Directors' examination of the bank performed by other
external auditors (may be required by state chartering
authority)
5 = Review of the bank's financial statements by external
auditors
6 = Compilation of the bank's financial statements by external
auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------------
(1) Includes total demand deposits and noninterest-bearing time
and savings deposits.
(2) Includes limited-life preferred stock and related surplus.
<PAGE>
EXHIBIT 25.6
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
-----------------------------
State Street Corporation
(Exact name of obligor as specified in its charter)
Massachusetts 04-2456637
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
225 Franklin Street
Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Guarantee of Capital Securities
of State Street Capital I
(Title of Indenture Securities)
<PAGE>
Item 1. General Information. Furnish the following
--------------------
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of
Governors of the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor
------------------------------
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part
-----------------
of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
<PAGE>
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Chicago
and the State of Illinois, on this 25th day of March, 1998.
The First National Bank of Chicago,
Trustee
By /s/ John R. Prendiville
-----------------------------
John R. Prendiville
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 16 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 25.1 to the Registration Statement on Form S-3 of
SunAmerica, Inc., filed with the Securities and Exchange Commission on October
25, 1996 (Registration No. 333-14201).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 25, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of a guarantee between
State Street Corporation and The First National Bank of Chicago, the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By /s/ John R. Prendiville
--------------------------------
John R. Prendiville
Vice President
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT 7
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31,1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
ASSETS
Dollar Amounts in C400
--------
<S> <C> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule RC-A):
a. Noninterest-bearing balances and currency and coin(1) 0081 4,267,336 1.a.
b. Interest-bearing balances(2) 0071 6,893,837 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D).... 1773 5,691,722 2.b.
3. Federal funds sold and securities purchased under agreements to
resell 1350 6,339,940 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 25,202,984 4.a.
b. LESS: Allowance for loan and lease losses RCFD 3123 419,121 4.b.
c. LESS: Allocated transfer risk reserve RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) 2125 24,783,863 4.d.
5. Trading assets (from Schedule RD-D) 3545 6,703,332 5.
6. Premises and fixed assets (including capitalized leases) 2145 743,426 6.
7. Other real estate owned (from Schedule RC-M) 2150 7,727 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) 2130 134,959 8.
9. Customers' liability to this bank on acceptances outstanding 2155 644,340 9.
10. Intangible assets (from Schedule RC-M) 2143 268,501 10.
11. Other assets (from Schedule RC-F) 2160 2,004,432 11.
12. Total assets (sum of items 1 through 11) 2170 58,483,415 12.
</TABLE>
- -------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
<TABLE>
<CAPTION>
Schedule RC-Continued
Dollar Amounts in
Thousands Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------------------
LIABILITIES
<S> <C> <C> <C> <C>
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) RCON 2200 21,756,846 13.a
(1) Noninterest-bearing(1) RCON 6631 9,197,227 13.a.1
(2) Interest-bearing RCON 6636 559,619 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) RCFN 2200 14,811,410 13.b.
(1) Noninterest bearing RCFN 6631 332,801 13.b.1
(2) Interest-bearing RCFN 6636 14,478,609 13.b.2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 4,535,422 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 43,763 15.a
b. Trading Liabilities(from Schedule RC-D)......................... RCFD 3548 6,523,239 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less RCFD 2332 1,360,165 16.a
b. With a remaining maturity of than one year through three years A547 576,492 16.b
c. With a remaining maturity of more than three years ............ A548 703,981 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding RCFD 2920 644,341 18
19. Subordinated notes and debentures (2) RCFD 3200 1,700,000 19
20. Other liabilities (from Schedule RC-G) RCFD 2930 1,322,077 20
21. Total liabilities (sum of items 13 through 20) RCFD 2948 53,987,736 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus RCFD 3838 0 23
24. Common stock RCFD 3230 200,858 24
25. Surplus (exclude all surplus related to preferred stock) RCFD 3839 2,999,001 25
26. a. Undivided profits and capital reserves RCFD 3632 1,273,239 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities RCFD 8434 24,096 26.b.
27. Cumulative foreign currency translation adjustments RCFD 3284 (1,515) 27
28. Total equity capital (sum of items 23 through 27) RCFD 3210 4,495,679 28
29. Total liabilities and equity capital (sum of items 21 and 28) RCFD 3300 58,483,415 29
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement
below that best describes the most comprehensive level of auditing
work performed for the bank by independent external Number
auditors as of any date during 1996........RCFD 6724........N/A M.1
1 = Independent audit of the bank conducted in accordance
with generally accepted auditing standards by a certified
public accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company
conducted in accordance with generally accepted auditing
standards by a certified public accounting firm which
submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
4 = Directors' examination of the bank performed by other
external auditors (may be required by state chartering
authority)
5 = Review of the bank's financial statements by external
auditors
6 = Compilation of the bank's financial statements by external
auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------------
(1) Includes total demand deposits and noninterest-bearing time
and savings deposits.
(2) Includes limited-life preferred stock and related surplus.
<PAGE>
Exhibit 25.7
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
-----------------------------
State Street Corporation
(Exact name of obligor as specified in its charter)
Massachusetts 04-2456637
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
225 Franklin Street
Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Guarantee of Capital Securities
of State Street Capital II
(Title of Indenture Securities)
<PAGE>
Item 1. General Information. Furnish the following
-------------------
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of
Governors of the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor
-----------------------------
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part
----------------
of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
<PAGE>
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Chicago
and the State of Illinois, on this 25th day of March, 1998.
The First National Bank of Chicago,
Trustee
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 16 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 25.1 to the Registration Statement on Form S-3 of
SunAmerica, Inc., filed with the Securities and Exchange Commission on October
25, 1996 (Registration No. 333-14201).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 25, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of a guarantee between State
Street Corporation and The First National Bank of Chicago, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
The First National Bank of Chicago
By /s/ John R. Prendiville
John R. Prendiville
Vice President
<PAGE>
EXHIBIT 7
<TABLE>
<S> <C> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31,1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in C400
----------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1) 0081 4,267,336 1.a.
b. Interest-bearing balances(2) 0071 6,893,837 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D).... 1773 5,691,722 2.b.
3. Federal funds sold and securities purchased under agreements to
resell 1350 6,339,940 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) RCFD 2122 25,202,984 4.a.
b. LESS: Allowance for loan and lease losses RCFD 3123 419,121 4.b.
c. LESS: Allocated transfer risk reserve RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) 2125 24,783,863 4.d.
5. Trading assets (from Schedule RD-D) 3545 6,703,332 5.
6. Premises and fixed assets (including capitalized leases) 2145 743,426 6.
7. Other real estate owned (from Schedule RC-M) 2150 7,727 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) 2130 134,959 8.
9. Customers' liability to this bank on acceptances outstanding 2155 644,340
10. Intangible assets (from Schedule RC-M) 2143 268,501 10.
11. Other assets (from Schedule RC-F) 2160 2,004,432 11.
12. Total assets (sum of items 1 through 11) 2170 58,483,415 12.
- -------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) RCON 2200 21,756,846 13.a
(1) Noninterest-bearing(1) RCON 6631 9,197,227 13.a.1
(2) Interest-bearing RCON 6636 559,619 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) RCFN 2200 14,811,410 13.b.
(1) Noninterest bearing RCFN 6631 332,801 13.b.1
(2) Interest-bearing RCFN 6636 14,478,609 13.b.2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 4,535,422 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 43,763 15.a
b. Trading Liabilities(from Schedule RC-D)......................... RCFD 3548 6,523,239 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less RCFD 2332 1,360,165 16.a
b. With a remaining maturity of than one year through three years A547 576,492 16.b
. c. With a remaining maturity of more than three years ................. A548 703,981 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding RCFD 2920 644,341 18
19. Subordinated notes and debentures (2) RCFD 3200 1,700,000 19
20. Other liabilities (from Schedule RC-G) RCFD 2930 1,322,077 20
21. Total liabilities (sum of items 13 through 20) RCFD 2948 53,987,736 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus RCFD 3838 0 23
24. Common stock RCFD 3230 200,858 24
25. Surplus (exclude all surplus related to preferred stock) RCFD 3839 2,999,001 25
26. a. Undivided profits and capital reserves RCFD 3632 1,273,239 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities RCFD 8434 24,096 26.b.
27. Cumulative foreign currency translation adjustments RCFD 3284 (1,515) 27
28. Total equity capital (sum of items 23 through 27) RCFD 3210 4,495,679 28
29. Total liabilities and equity capital (sum of items 21 and 28) RCFD 3300 58,483,415 29
</TABLE>
<TABLE>
<CAPTION>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1996 . . . . . . . . . . . . . . . . . . . . . . . . RCFD 6724 ...................N/A M.1
<S> <C>
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards by a
certified public accounting firm (may be required by state
chartering authority)
</TABLE>
- --------------------
(1) Includes total demand deposits and noninterest-bearing time and
savings deposits.
(2) Includes limited-life preferred stock and related surplus.
<PAGE>
EXHIBIT 25.8
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
-----------------------------
State Street Corporation
(Exact name of obligor as specified in its charter)
Massachusetts 04-2456637
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
225 Franklin Street
Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Guarantee of Capital Securities
of State Street Capital III
(Title of Indenture Securities)
<PAGE>
Item 1. General Information. Furnish the following
-------------------
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of
Governors of the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor
-----------------------------
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part
----------------
of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
<PAGE>
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Chicago
and the State of Illinois, on this 25th day of March, 1998.
The First National Bank of Chicago,
Trustee
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 16 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 25.1 to the Registration Statement on Form S-3 of
SunAmerica, Inc., filed with the Securities and Exchange Commission on October
25, 1996 (Registration No. 333-14201).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 25, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of a guarantee between
State Street Corporation and The First National Bank of Chicago, the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By /s/ John R. Prendiville
John R. Prendiville
Vice President
<PAGE>
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31,1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in C400
----------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1) 0081 4,267,336 1.a.
b. Interest-bearing balances(2) 0071 6,893,837 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)............ 1773 5,691,722 2.b.
3. Federal funds sold and securities purchased under agreements to
resell 1350 6,339,940 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) RCFD 2122 25,202,984 4.a.
b. LESS: Allowance for loan and lease losses RCFD 3123 419,121 4.b.
c. LESS: Allocated transfer risk reserve RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) 2125 24,783,863 4.d.
5. Trading assets (from Schedule RD-D) 3545 6,703,332 5.
6. Premises and fixed assets (including capitalized leases) 2145 743,426 6.
7. Other real estate owned (from Schedule RC-M) 2150 7,727 7.
8. Investments in unconsolidated subsidiaries and associate
companies (from Schedule RC-M) 2130 134,959 8.
9. Customers' liability to this bank on acceptances outstanding 2155 644,340 9.
10. Intangible assets (from Schedule RC-M) 2143 268,501 10.
11. Other assets (from Schedule RC-F) 2160 2,004,432 11.
12. Total assets (sum of items 1 through 11) 2170 58,483,415 12.
</TABLE>
- -------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) RCON 2200 21,756,846 13.a
(1) Noninterest-bearing(1) RCON 6631 9,197,227 13.a.1
(2) Interest-bearing RCON 6636 559,619 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) RCFN 2200 14,811,410 13.b.
(1) Noninterest bearing RCFN 6631 332,801 13.b.1
(2) Interest-bearing RCFN 6636 14,478,609 13.b.2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 4,535,422 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 43,763 15.a
b. Trading Liabilities(from Schedule RC-D)........................... RCFD 3548 6,523,239 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less RCFD 2332 1,360,165 16.a
b. With a remaining maturity of than one year through three years A547 576,492 16.b
. c. With a remaining maturity of more than three years .............. A548 703,981 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding RCFD 2920 644,341 18
19. Subordinated notes and debentures (2) RCFD 3200 1,700,000 19
20. Other liabilities (from Schedule RC-G) RCFD 2930 1,322,077 20
21. Total liabilities (sum of items 13 through 20) RCFD 2948 53,987,736 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus RCFD 3838 0 23
24. Common stock RCFD 3230 200,858 24
25. Surplus (exclude all surplus related to preferred stock) RCFD 3839 2,999,001 25
26. a. Undivided profits and capital reserves RCFD 3632 1,273,239 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities RCFD 8434 24,096 26.b.
27. Cumulative foreign currency translation adjustments RCFD 3284 (1,515) 27
28. Total equity capital (sum of items 23 through 27) RCFD 3210 4,495,679 28
29. Total liabilities and equity capital (sum of items 21 and 28) RCFD 3300 58,483,415 29
</TABLE>
<TABLE>
Memorandum
To be reported only with the March Report of Condition.
<S> <C> <C>
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external Number
auditors as of any date during 1996 . . . . . . . .RCFD 6724 ...................N/A M.1
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards by a certified public
accounting firm (may be required by state chartering authority)
</TABLE>
- --------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
