As filed with the Securities and Exchange Commission on April 11, 2000
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. 333-49143
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<TABLE>
<S> <C> <C>
STATE STREET CORPORATION MASSACHUSETTS 04-2456637
STATE STREET CAPITAL TRUST II DELAWARE 13-7147835
STATE STREET CAPITAL TRUST III DELAWARE 13-7147836
STATE STREET CAPITAL TRUST IV DELAWARE 06-6492651
(Exact name of each registrant (State or other jurisdiction (I.R.S. Employer
as specified in its charter) of incorporation or organization) Identification Number)
</TABLE>
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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)
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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)
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With copies to:
MARK V. NUCCIO, 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|
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum Amount of
Title of each class of Amount to offering price per unit aggregate offering registration
securities to be registered be registered (1) (2) price (1)(3) fee (3)
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Debt Securities of State Street Corporation (4)
..................................................
Preferred Stock of State Street Corporation, no
par value (5) (6) ................................
Depositary Shares (6) ...........................
Common Stock of State Street Corporation, par
value $1.00 per share (7) ........................
Warrants (8) .....................................
Capital Securities of State Street Capital Trust II
(9) .............................................. (11) (11) (11) (11)
Capital Securities of State Street Capital Trust
III (9) ..........................................
Capital Securities Of State Street Capital Trust
IV (9) ...........................................
Guarantees of Capital Securities of State Street
Capital Trust II, State Street Capital Trust III
and State Street Capital Trust IV by State Street
Corporation and certain back-up undertakings
(10) .............................................
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Total $1,000,000,000 (1) 100% $1,000,000,000 (1) $211,200 (3)
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(1) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this Registration Statement exceed
$1,000,000,000 or the equivalent thereof in one or more foreign currencies,
foreign currency units, or composite currencies. If Debt Securities are issued
at original issue discount, State Street Corporation may issue such higher
principal amount as may be sold for an initial public offering price of up to
$1,000,000,000 (less the dollar amount of any securities previously issued
hereunder), or the equivalent thereof in one or more foreign currencies, foreign
currency units, or composite currencies. Pursuant to Rule 429 under the
Securities Act of 1933, $200,000,000 of debt securities and preferred stock are
being carried forward from Registration Statement No. 333-49143 for inclusion in
the Prospectus filed herewith. The aggregate amount of the Common Stock issued
hereunder is further limited to that which is permissible under Rule 415(a)(4)
under the Securities Act of 1933. The securities registered hereunder may be
sold separately or as units with other securities registered hereunder.
(2) The proposed maximum offering price per unit will be determined from time to
time by the Registrant in connection with the issuance by the Registrant of the
securities registered hereunder.
(3) The proposed maximum aggregate offering price has been estimated solely for
the purpose of calculating the registration fee pursuant to Rule 457(o) under
the Securities Act of 1933. A registration fee of $68,966 has been previously
paid with respect to the debt securities and preferred stock being carried
forward from Registration Statement No. 333-49143.
(4) Subject to note (1) above, there is being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold, from time to
time at indeterminate prices, by the Registrant.
(5) Subject to note (1) above, there is being registered hereunder an
indeterminate number of shares of Preferred Stock as may be sold, from time to
time at indeterminate prices, by the Registrant.
(6) Subject to note (1) above, there is being registered hereunder an
indeterminate number of Depositary Shares to be evidenced by Depositary Receipts
issued pursuant to a Deposit Agreement. In the event the Registrant elects to
offer to the public fractional interest in shares of Preferred Stock registered
hereunder, Depositary Receipts will be distributed to those persons purchasing
such fractional interests and the shares of Preferred Stock will be issued to
the Depositary under the Deposit Agreement.
(7) Subject to note (1) above, there is being registered hereunder an
indeterminate number of shares of Common Stock as may be sold, from time to time
at indeterminate prices, by the Registrant.
(8) Subject to note (1) above, there is being registered hereunder an
indeterminate amount and number of Warrants, representing rights to purchase
Debt Securities, Preferred Stock or Common Stock registered hereunder.
(9) Subject to note (1) above, there is being registered hereunder an
indeterminate number of Capital Securities of State Street Capital Trust II,
State Street Capital Trust III and State Street Capital Trust IV and an
indeterminate principal amount of Junior Subordinated Deferrable Interest
Debentures. Junior Subordinated Deferrable Interest Debentures may be issued and
sold to State Street Capital Trust II, State Street Capital Trust III or State
Street Capital Trust IV. Such Junior Subordinated Deferrable Interest Debentures
may later be distributed to the holders of Capital Securities upon termination
of State Street Capital Trust II, State Street Capital Trust III or State Street
Capital Trust IV and the distribution of assets thereof.
(10) Includes the obligations of State Street Corporation under (i) the Amended
Trust Agreement of each of State Street Capital Trust II and State Street
Capital Trust III and The Trust Agreement of State Street Capital Trust IV, (ii)
the Guarantees issued with respect to the Capital Securities issued by such
Trusts, (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.
(11) Not applicable pursuant to General Instruction II.D. of Form S-3.
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This Registration Statement, which is a new Registration Statement, also
constitutes Post-Effective Amendment No. 1 to Registration Statement No.
333-49143 of State Street Corporation which was declared effective on April 15,
1998. 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. 333-49143; the $200,000,000 aggregate amount of debt securities and
preferred
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stock remaining unsold from Registration Statement No. 333-49143 will be
combined with the Capital Securities, Common Stock, 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 $1,000,000,000
of any combination of its Common Stock, Debt Securities and Preferred Stock and
to enable State Street Capital Trust II, State Street Capital Trust III and
State Street Capital Trust IV to offer an aggregate amount of $1,000,000,000 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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EXPLANATORY NOTE
This Registration Statement contains three forms of Prospectus: (a) one to
be used in connection with the offering and sale of Debt Securities, and
Warrants to purchase Debt Securities, including any Preferred Stock, and Common
Stock into which the Debt Securities may be convertible; (b) one to be used in
connection with the offering and sale of Common Stock, Depositary Shares and
Preferred Stock, and Warrants to purchase such securities, including any such
shares into which the Preferred Stock or Depositary Shares may be convertible;
and (c) one to be used in connection with the offering and sale of Capital
Securities issued by Delaware statutory business trusts, the common Securities
of which are owned by State Street.
S-4
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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 , 2000
$1,000,000,000
State Street Corporation
Debt Securities
Warrants
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State Street Corporation, a Massachusetts corporation, may offer and sell:
o Debt Securities
o Warrants
We will provide specific terms of these securities in supplements to this
prospectus. You should read this prospectus and any supplements carefully before
you invest.
A security is not a deposit and the securities are not insured or
guaranteed by the Federal Deposit Insurance Corporation or any other
governmental agency.
This prospectus may be used to offer and sell securities only if
accompanied by the prospectus supplement for those securities.
Neither the SEC nor any state securities commission has approved these
securities or determined that this prospectus or the prospectus supplement is
truthful or complete. Any representation to the contrary is a criminal offense.
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The date of this Prospectus is , 2000.
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IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS PROSPECTUS AND THE
ACCOMPANYING PROSPECTUS SUPPLEMENT
We provide information to you about the securities in two separate
documents that progressively provide more detail:
o this prospectus, which provides general information, some of which may not
apply to your securities; and
o the accompanying prospectus supplement, which describes the terms of the
securities.
If the terms of your securities vary between the prospectus supplement and
the accompanying prospectus, you should rely on the information in the following
order of priority:
o the prospectus supplement; and
o the prospectus.
We include cross-references in this prospectus and the accompanying
prospectus supplement to captions in these materials where you can find further
related discussions. The following Table of Contents and the Table of Contents
included in the accompanying prospectus supplement provide the pages on which
these captions are located.
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Neither we nor the underwriters have taken any action that would permit us
to publicly sell these securities in any jurisdiction outside the United States.
If you are an investor outside the United States, you should inform yourself
about and comply with any restrictions as to the offering of the securities and
the distribution of this prospectus.
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TABLE OF CONTENTS
ABOUT THIS PROSPECTUS..........................................................4
WHERE YOU CAN FIND MORE INFORMATION............................................4
FORWARD-LOOKING STATEMENTS.....................................................6
STATE STREET CORPORATION.......................................................7
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES...............................7
USE OF PROCEEDS................................................................7
DESCRIPTION OF DEBT SECURITIES.................................................7
General .............................................................8
Registration and Transfer................................................9
Payment and Place of Payment............................................10
Events of Default.......................................................10
Modification and Waiver.................................................11
Consolidation, Merger and Sale of Assets................................12
Regarding the Trustee...................................................12
International Offering..................................................12
Limitation Upon Disposition of Voting Stock or Assets of State
Street Bank...........................................................13
Defeasance ............................................................13
Subordinated Debt Securities............................................13
Governing Law...........................................................15
DESCRIPTION OF WARRANTS.......................................................15
Offered Warrants........................................................15
Further Information in Prospectus Supplement............................16
Significant Provisions of the Warrant Agreements........................17
GLOBAL SECURITIES.............................................................18
General ............................................................18
Book-Entry Issuance.....................................................20
PLAN OF DISTRIBUTION..........................................................22
VALIDITY OF SECURITIES........................................................23
EXPERTS.......................................................................23
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission, the "SEC," utilizing a "shelf" registration
process. Under this shelf process, we may from time to time sell any combination
of the debt securities or warrants described in this prospectus in one or more
offerings up to a total dollar amount of $1,000,000,000. We may also sell other
securities under the registration statement that will reduce the total dollar
amount of securities that we may sell under this prospectus. This prospectus
provides you with a general description of the debt securities or warrants we
may offer. Each time we sell debt securities or warrants, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both this prospectus
and any prospectus supplement together with the additional information described
under the heading "Where You Can Find More Information."
Unless otherwise indicated or unless the context requires otherwise, all
references in this prospectus to "STATE STREET," "WE," "US," "OUR" or similar
references mean State Street Corporation.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement under the Securities
Act of 1933 that registers, among others securities, the offer and sale of the
securities offered by this prospectus. The registration statement, including the
attached exhibits and schedules, contains additional relevant information about
us. The rules and regulations of the SEC allow us to omit certain information
included in the registration statement from this prospectus.
In addition, we file reports, proxy statements and other information with
the SEC under the Securities Exchange Act of 1934. You may read and copy this
information at the following locations of the SEC:
Public Reference Room
450 Fifth Street, N.W.
Room 1024
Washington, D.C. 20549
Northeast Regional Office
7 World Trade Center
Suite 1300
New York, New York 10048
Midwest Regional Office
500 West Madison Street
Suite 1400
Chicago, Illinois 60661-2511
You may also obtain copies of this information by mail from the Public
Reference Section of the SEC, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, at prescribed rates.
The SEC also maintains an Internet world wide web site that contains
reports, proxy statements and other information about issuers, like us, who file
electronically with the SEC. The address of that site is:
http://www.sec.gov.
You can also inspect reports, proxy statements and other information about
us at the offices of the New York Stock Exchange, 20 Broad Street, New York, New
York 10005.
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The SEC allows us to "incorporate by reference" information into this
prospectus. This means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The information
incorporated by reference is considered to be a part of this prospectus, except
for any information that is superseded by information that is included directly
in this document or in a more recent incorporated document.
This prospectus incorporates by reference the documents listed below that
we have previously filed with the SEC. They contain important information about
us and our financial condition.
SEC FILINGS PERIOD
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Annual Report on Form 10-K Year Ended December 31, 1999
Quarterly Report on Form 10-Q Quarter ended March 31, 1999
Quarter ended June 30, 1999
Quarter ended September 30, 1999
Current Report on Form 8-K Filed January 7, 2000
We incorporate by reference additional documents that we may file with the
SEC between the date of this prospectus and the date we sell all of the debt
securities. These documents include periodic reports, such as Annual Reports on
Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as
well as proxy statements.
You can obtain any of the documents incorporated by reference in this
document through us, or from the SEC through the SEC's Internet world wide web
site at the address described previously. Documents incorporated by reference
are available from us without charge, excluding any exhibits to those documents,
unless the exhibit is specifically incorporated by reference as an exhibit in
this prospectus. You can obtain documents incorporated by reference in this
prospectus by requesting them in writing or by telephone from us at the
following address:
Investor Relations
State Street Corporation
225 Franklin Street
Boston, Massachusetts 02110
(617) 664-3477
We have not authorized anyone to give any information or make any
representation about us that is different from, or in addition to, the
information and representations contained in this prospectus or in any of the
materials that we have incorporated into this prospectus. If anyone does give
you information of this sort, you should not rely on it. If you are in a
jurisdiction where offers to sell, or solicitations of offers to purchase, the
securities offered by this document are unlawful, or if you are a person to whom
it is unlawful to direct these types of activities, then the offer presented in
this document does not extend to you. The information contained in this document
speaks only as of the date of this document unless the information specifically
indicates that another date applies.
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<PAGE>
FORWARD-LOOKING STATEMENTS
This prospectus, including information included or incorporated by
reference, contains certain forward-looking statements with respect to our
financial condition, results of operations, plans, objectives, future
performance and business, including, without limitation, statements preceded by,
followed by or that include the words "believes," "expects," "anticipates,"
"estimates" or similar expressions.
These forward-looking statements involve risks and uncertainties. Actual
results may differ materially from those contemplated by the forward-looking
statements due to many factors, including:
o future revenue may increase or decrease depending upon the extent of
increases or decreases in cross-border investments made by customers or
future customers;
o changes in the savings rate of individuals that are invested in mutual
funds or in defined contribution plans affect our revenues;
o fluctuations in worldwide securities market valuations may affect our
revenues;
o changes in markets served, including the growth rate of U.S. mutual funds,
the pace of debt issuance, outsourcing decisions, and mergers,
acquisitions and consolidations among customers and competitors may affect
our revenues;
o global and regional economic factors and changes or potential changes in
laws and regulations affecting our business, including volatile currencies
and changes in monetary policy, and social and political instability,
could affect results of operations;
o market interest rate levels, the shape of the yield curve and the
direction of interest rate changes affect net interest revenue and
fiduciary compensation from securities lending;
o the degree of volatility in foreign exchange rates may affect the amount
of foreign exchange trading revenue;
o the pace of pension reform and resulting programs including public and
private pension schemes may affect the pace of revenue growth;
o future prices that we are able to obtain for our products may increase or
decrease from current levels depending upon demand, our competitors'
activities and the introduction of new products into the marketplace;
o the pace at which existing and new customers use additional services and
assign additional assets to us for management or custody will affect
future results;
o changes in business mix, including the mix of U.S. and non-U.S. business,
may affect future results;
o technological change may be more difficult or expensive then anticipated;
and
o changes may occur in securities markets.
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<PAGE>
STATE STREET CORPORATION
We are a bank holding company organized under the laws of the Commonwealth
of Massachusetts and a leading provider of services to institutional investors
and investment managers worldwide. We were organized in 1970 and conduct our
business principally through our subsidiary, State Street Bank and Trust
Company, "STATE STREET BANK," which traces its beginnings to the founding of
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. Our executive offices are located at 225
Franklin Street, Boston, Massachusetts 02110 (telephone (617) 786-3000).
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
Our consolidated ratios of earnings to fixed charges were as follows for
the five most recent fiscal years:
Year Ended December 31,
------------------------------------
1999 1998 1997 1996 1995
---- ---- ---- ---- ----
Ratio of earnings to fixed charges 2.02x 1.77x 1.93x 1.95x 1.75x
USE OF PROCEEDS
We intend to use the net proceeds from the sale of the securities for
general corporate purposes unless otherwise indicated in the prospectus
supplement or term sheet relating to a specific issue of securities. Our general
corporate purposes may include extending credit to, or funding investments in,
our subsidiaries. The precise amounts and the timing of our use of the net
proceeds will depend upon our subsidiaries' funding requirements and the
availability of other funds. Until we use the net proceeds from the sale of any
of our securities for general corporate purposes, we will use the net proceeds
to reduce our short-term indebtedness or for temporary investments. We expect
that we will, on a recurrent basis, engage in additional financings as the need
arises to finance our growth, through acquisitions or otherwise, or to fund our
subsidiaries. We and State Street Bank regularly investigate possible
acquisitions.
DESCRIPTION OF DEBT SECURITIES
The senior debt securities will be issued under an indenture dated as of
August 2, 1993, the "SENIOR INDENTURE," between us and U.S. Bank Trust National
Association, as successor senior trustee. The subordinated debt securities
(other than the junior subordinated debentures) will be issued under an
indenture that is expected to be entered into between us and U.S. Bank Trust
National Association, as subordinated trustee, the "SUBORDINATED INDENTURE." A
copy of each indenture is an exhibit to the registration statement that contains
this prospectus.
The following summaries of all material terms of the indentures are not
complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the respective indentures, including the definitions
of terms. The following summaries describe the general terms and provisions of
the debt securities to be offered by any prospectus supplement. The particular
terms of the debt securities offered by any prospectus supplement and the
extent, if any, to which these general provisions may apply to the debt
securities so offered, will be described in the prospectus supplement relating
to such offered securities.
The senior debt securities will be unsecured and will rank equally with
all other unsecured and unsubordinated indebtedness of State Street. The
subordinated debt securities will be unsecured and will be subordinated to all
existing and future senior indebtedness and other financial obligations of State
Street as described under
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<PAGE>
"Subordinated Debt Securities -- Subordination" beginning on page 13. Because
we are a holding company, our rights and the rights of our creditors, including
the holders of the debt securities we are offering under this prospectus, to
participate in the assets of any of our subsidiaries upon the subsidiary's
liquidation or reorganization will be subject to the prior claims of the
subsidiary's creditors except to the extent that we may ourselves be a creditor
with recognized claims against the subsidiary. In addition, dividends, loans and
advances from certain of our banking subsidiaries to us and our non-banking
subsidiaries are restricted by federal and state statutes and regulations.
General
We may issue the debt securities from time to time, without limitation as
to aggregate principal amount and in one or more series. We expect from time to
time to incur additional indebtedness that may be senior to the debt securities.
Neither the indentures nor the debt securities will limit or otherwise restrict
the amount of other indebtedness which may be incurred or other securities which
may be issued by us or our subsidiaries, including indebtedness which may rank
senior to the debt securities. The debt securities will not be secured.
We may issue debt securities upon the satisfaction of conditions contained
in the indentures. The applicable prospectus supplement will include the terms
of that issue of debt securities, including:
o the title and series designation;
o the aggregate principal amount and the limit, if any, on the aggregate
principal amount or initial public offering price of the debt securities
which may be issued under the applicable indenture;
o any fixed or variable interest rate or rates per annum;
o the date from which any interest shall accrue;
o any interest payment dates;
o whether the debt securities are senior or subordinated;
o the stated maturity date;
o whether the debt securities are to be issued in global form;
o any sinking fund requirements;
o any provisions for redemption, the redemption price and any remarketing
arrangements;
o the minimum denominations;
o whether the debt securities are denominated or payable in United States
dollars or a foreign currency or units of two or more foreign currencies;
o the place or places where payments or deliveries on the debt securities
shall be made and the debt securities may be presented for registration of
transfer or exchange;
o whether any of the debt securities will be subject to defeasance in
advance of the date for redemption or the stated maturity date;
o if other than the principal amount, the portion of the principal amount of
the debt securities payable upon acceleration of the maturity of the debt
securities;
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<PAGE>
o any index used to determine the amount of payment of principal of, and any
premium and interest on, the debt securities;
o the person to whom any interest on the debt securities of the series shall
be payable if other than the registered holder thereof;
o the manner in which the amount that shall be deemed to be the principal
amount of the debt securities on or prior to the maturity date shall be
determined;
o any additional or different events of default that apply to any debt
securities of the series and any change in the right of the trustee or the
required holders of those debt securities to declare the principal thereof
due and payable;
o any additional or different covenants that apply to any debt securities of
the series; and
o any other terms of the debt securities that are not inconsistent with the
provisions of the applicable indenture.
Please see the accompanying prospectus supplement or the terms sheet you
have received or will receive for the terms of the specific debt securities we
are offering. We may deliver this prospectus before or concurrently with the
delivery of a terms sheet. We may issue debt securities under the indentures
upon the exercise of warrants to purchase debt securities. Please see
"Description of Warrants." Nothing in the indentures or in the terms of the debt
securities will prohibit the issuance of securities representing subordinated
indebtedness that is senior or junior to the subordinated debt securities.
Prospective purchasers of debt securities should be aware that special
federal income tax, accounting and other considerations may be applicable to
instruments such as the debt securities. The prospectus supplement relating to
an issue of debt securities will describe these considerations, if they apply.
Debt securities may be issued as "ORIGINAL ISSUE DISCOUNT SECURITIES"
which bear no interest or interest at a rate which at the time of issuance is
below market rates and which will be sold at a substantial discount below their
principal amount. In the event that the maturity of any original issue discount
security is accelerated, the amount payable to the holder of the original issue
discount security upon acceleration will be determined in accordance with the
applicable prospectus supplement, the terms of such security and the relevant
indenture, but will be an amount less than the amount payable at the maturity of
the principal of such original issue discount security. Special federal income
tax and other considerations relating to original issue discount securities will
be described in the applicable prospectus supplement.
The indentures provide that without the consent of any holders, we and the
trustee may enter into one or more supplemental indentures for certain purposes,
including:
o to add to our covenants for the benefit of the holders of all or any
series of debt securities or to surrender any right or power conferred
upon us in the indentures; and
o 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, we 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.
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Unless otherwise indicated in the applicable prospectus supplement, the
covenants contained in the indentures and the debt securities will not protect
holders in the event of a sudden decline in our creditworthiness that might
result from a recapitalization, restructuring, or other highly leveraged
transaction.
Registration and Transfer
Unless otherwise indicated in the applicable prospectus supplement, we
will issue each series of debt securities in registered form only, without
coupons and in denominations of $1,000 or integral multiples thereof. Holders
may present debt securities in registered form for transfer or exchange for
other debt securities of the same series at the office or agency of State Street
maintained for such purpose.
No service charge will be made for any transfer or exchange of the debt
securities but we may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection with any transfer or exchange.
Payment and Place of Payment
Unless otherwise indicated in the applicable prospectus supplement, we
will pay principal of and any premium and interest on the debt securities at the
office or agency of State Street maintained for such purpose. However, at our
option, we may pay any interest by check mailed to the holders of registered
debt securities at their registered addresses.
Events of Default
The following are "events of default" under the senior indenture and
"defaults" under the subordinated indenture with respect to any series of debt
securities:
o default in the payment of any principal or premium when due;
o default in the payment of any interest when due, which continues for 30
days;
o default in the deposit of any sinking fund payment when due;
o default in the performance of any other obligation contained in the senior
indenture for the benefit of debt securities of that series, which
continues for 60 days after written notice;
o acceleration of other indebtedness exceeding $20,000,000 of us or of State
Street Bank, which is not annulled within 30 days after written notice;
o specified events in bankruptcy, insolvency or reorganization; and
o any other default or event of default provided with respect to debt
securities of that series.
If an event of default under the senior indenture occurs and is continuing
for any series of debt securities, the senior trustee or the holders of at least
25% in aggregate principal amount or issue price of the outstanding securities
of that series may declare the principal amount of all the securities of that
series, or any lesser amount provided for in the debt securities of that series,
to be due and payable or deliverable immediately. At any time after the senior
trustee or the holders have accelerated any series of debt securities, but
before the senior trustee has obtained a judgment or decree for payment of money
due or delivery of the maturity consideration, the holders of a majority in
aggregate principal amount or issue price of outstanding debt securities of that
series may, under certain circumstances, rescind and annul such acceleration.
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Under the subordinated indenture, an "event of default" is limited to
certain events involving the bankruptcy, insolvency or reorganization of State
Street. The subordinated debt securities will automatically be accelerated upon
the occurrence of an "event of default" resulting from bankruptcy, insolvency or
reorganization. There is no right of acceleration in the case of a default in
the performance of any covenant with respect to the subordinated debt
securities, including the payment of interest and principal or the delivery of
the maturity consideration.
The holders of a majority in principal amount or aggregate issue price of
the outstanding debt securities of any series may waive an event of default with
respect to that series, except a default:
o in the payment of any amounts due and payable or deliverable under the
debt securities of that series; or
o in an obligation contained in, or a provision of, an indenture which
cannot be modified under the terms of that indenture without the consent
of each holder of each series of debt securities affected.
The holders of a majority in principal amount or issue price of the
outstanding debt securities of a series may direct the time, method and place of
conducting any proceeding for any remedy available to the applicable trustee or
exercising any trust or power conferred on the trustee with respect to debt
securities of that series, provided that any direction is not in conflict with
any rule of law or the indenture. Subject to the provisions of the indenture
relating to the duties of the trustee, before proceeding to exercise any right
or power under the indenture at the direction of the holders, the trustee is
entitled to receive from those holders reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred by it in complying
with any direction.
A holder of any debt security of any series will have the right to
institute a proceeding with respect to the indenture or for any remedy
thereunder, if:
o that holder previously gives to the trustee written notice of a continuing
event of default with respect to debt securities of that series;
o the holders of not less than 25% in aggregate principal amount or issue
price of the outstanding debt securities of that series also shall have
offered the trustee reasonable indemnity and made written request to the
trustee to institute such proceeding as trustee;
o the trustee shall not have received from the holders of a majority in
principal amount or issue price of the outstanding debt securities of that
series a direction inconsistent with such request; and
o the trustee shall have failed to institute such proceeding within 60 days.
However, any holder of a debt security has the absolute right to institute
suit for any defaulted payment after the due dates for payment under that debt
security.
We are required to furnish to the trustees annually a statement as to the
performance of our obligations under the indentures and as to any default in
such performance.
Modification and Waiver
Each indenture may be modified and amended by us and the applicable
trustee with the consent of holders of at least 66 2/3% in principal amount or
issue price of each series of debt securities affected. However, without the
consent of each holder of any debt security affected, we may not amend or modify
any indenture to:
o change the stated maturity date of the principal or any installment of
principal or interest on, any debt security;
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o reduce the principal amount or the rate of interest on, or any premium
payable upon the redemption of, any debt security;
o reduce the amount of principal of an original issue discount security
payable upon acceleration of its maturity;
o change the place or currency of payment of principal of, or any premium or
interest on, any debt security;
o impair the right to institute suit for the enforcement of any payment or
delivery on or with respect to any debt security;
o in the case of the subordinated indenture, modify the subordination
provisions in a manner adverse to the holders of the subordinated debt
securities;
o reduce the percentage in principal amount of debt securities of any
series, the consent of whose holders is required to modify or amend the
indenture or to waive compliance with certain provisions of the indenture;
or
o reduce the percentage in principal amount of debt securities of any
series, the consent of whose holders is required to waive any past
default.
The holders of at least a majority in principal amount of the outstanding
debt securities of any series may, with respect to that series, waive past
defaults under the applicable indenture, except as described under "-- Events of
Default" beginning on page 10.
Consolidation, Merger and Sale of Assets
Unless otherwise indicated in the applicable prospectus supplement, we may
consolidate or merge with or into any other corporation, and we may sell, lease
or convey all or substantially all of our assets to any corporation, provided
that:
o the resulting corporation, if other than us, is a corporation organized
and existing under the laws of the United States of America or any U.S.
state and assumes all of our obligations on the debt securities under the
indentures;
o we are not, or any successor corporation, as the case may be, is not,
immediately after any consolidation or merger, in default under the
indentures; and
o certain other conditions are met.
Regarding the Trustee
U.S. Bank Trust National Association is the trustee under both the senior
indenture and the subordinated indenture. We and certain of our subsidiaries,
including State Street Bank, maintain banking relations with the trustee in the
ordinary course of business.
International Offering
If specified in the applicable prospectus supplement, we may issue debt
securities outside the United States. Such debt securities may be issued in
bearer form and will be described in the applicable prospectus supplement. In
connection with any offering outside the United States, we will designate paying
agents, registrars or other agents with respect to the debt securities, as
specified in the applicable prospectus supplement.
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Debt securities issued outside the United States may be subject to certain
selling restrictions which will be described in the applicable prospectus
supplement. These debt securities may be listed on one or more foreign stock
exchanges as described in the applicable prospectus supplement. Special United
States tax and other considerations, if any, applicable to an offering outside
the United States will be described in the applicable prospectus supplement.
Limitation Upon Disposition of Voting Stock or Assets of State Street Bank
The senior indenture prohibits us and State Street Bank, so long as any of
the senior debt securities are outstanding, from selling or otherwise disposing
of, or granting a security interest in or permitting the issuance of, any voting
stock or any security convertible or exercisable into voting stock of State
Street Bank or any of our subsidiaries that owns voting stock or any security
convertible or exercisable into voting stock of State Street Bank.
This restriction does not apply to dispositions made by us or any
subsidiary:
o if such disposition or issuance is for fair market value as determined by
our Board of Directors; and
o if after giving effect to such disposition or issuance and any potential
dilution, we and our wholly-owned subsidiaries will own directly not less
than 80% of the voting stock of such principal constituent bank or any
subsidiary which owns a principal constituent bank.
The subordinated indenture does not contain a similar restriction on our
ability to engage in or permit such transactions to occur.
Defeasance
We may terminate or "defease" our obligations under the indentures of any
series of debt securities by taking certain steps, including:
o depositing irrevocably with the trustee as trust funds in trust in each
case in an amount, in U.S. dollars or U.S. government obligations, which
through the payment of interest, principal or premium, if any, in respect
thereof in accordance with their terms will provide an amount sufficient
to pay the entire amount of the debt securities;
o delivering an opinion of independent counsel that the holders of the debt
securities of such series will have no federal income tax consequences as
a result of such deposit and termination;
o no event of default under the senior indenture or default under the
subordinated indenture may exist or be caused by the defeasance; and
o the defeasance shall not cause an event of default under any of our other
agreements or instruments.
Subordinated Debt Securities
The subordinated debt securities will be our direct, unsecured
obligations. Unless otherwise specified in the applicable prospectus supplement,
the subordinated debt securities will rank equally with all of our outstanding
subordinated indebtedness that is not specifically stated to be junior to the
subordinated debt securities.
Subordination
The subordinated debt securities will be subordinated in right of payment
to all "senior indebtedness," as defined below. In certain events of insolvency,
payments on the subordinated debt securities will also be effectively
subordinated in right of payment to all "other financial obligations," as
defined on the next page. In certain circumstances relating to our liquidation,
dissolution, winding up, reorganization, insolvency or similar proceedings,
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the holders of all senior indebtedness will first be entitled to receive payment
in full before the holders of the subordinated debt securities will be entitled
to receive any payment on the subordinated debt securities. If, after all
payments have been made to the holders of senior indebtedness, (A) there are
amounts available for payment on the subordinated debt securities and (B) any
person entitled to payment according to the terms of our other financial
obligations, as defined beginning on page 14, has not received full payment,
then amounts available for payments on the subordinated debt securities will
first be used to pay in full such other financial obligations before any payment
may be made on the subordinated debt securities.
In the event of the acceleration of the maturity of any debt securities,
all senior indebtedness and other financial obligations will have to be repaid
before any payment can be made on the subordinated debt securities.
In addition, no payment may be made on the subordinated debt securities in
the event:
o there is a default in any payment or delivery with respect to any senior
indebtedness; or
o there is an event of default with respect to any senior indebtedness which
permits the holders of such senior indebtedness to accelerate the maturity
of the senior indebtedness.
By reason of this subordination in favor of the holders of senior
indebtedness, in the event of an insolvency, our creditors who are not holders
of senior indebtedness or the subordinated debt securities may recover less,
proportionately, than holders of senior indebtedness and may recover more,
proportionately, than holders of the subordinated debt securities. By reason of
the obligation of the holders of subordinated debt securities to pay over any
amount remaining after payment of senior indebtedness to persons in respect of
our other financial obligations, in the event of insolvency, holders of our
existing subordinated indebtedness may recover more, ratably, than the holders
of subordinated debt securities.
Unless otherwise specified in the prospectus supplement relating to the
particular series of subordinated debt securities, "SENIOR INDEBTEDNESS" is
defined in the subordinated indenture as the principal of, premium, if any, and
interest on:
o all of our "indebtedness" as defined below, except (A) subordinated debt
securities issued under the subordinated indenture, (B) such indebtedness
that is expressly stated to be junior in right of payment to the
subordinated debt securities and (C) indebtedness that is expressly stated
to rank equal with the subordinated debt securities; and
o any deferrals, renewals or extensions of any senior indebtedness.
The term "INDEBTEDNESS" means indebtedness, whether secured or unsecured,
for which we or any corporation that succeeds to our business as permitted under
the subordinated indenture, is liable directly or indirectly by guarantee,
letter of credit, obligation to purchase or otherwise:
o for borrowed money; or
o incurred in connection with the acquisition by us of assets other than in
the ordinary course of business.
Unless otherwise specified in the prospectus supplement relating to the
particular series of subordinated debt securities offered thereby, "OTHER
FINANCIAL OBLIGATIONS" means:
o our obligations under direct credit substitutes;
o our obligations, or any obligation directly or indirectly guaranteed by
us, for purchased money or funds;
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o any of our deferred obligations, or any such obligations directly or
indirectly guaranteed by us, incurred in connection with the acquisition
by us of assets; and
o all of our obligations to make payment pursuant to the terms of financial
instruments, such as: (A) securities contracts and foreign currency
exchange contracts; (B) derivative instruments, such as swap agreements,
including interest rate and foreign exchange rate swap agreements, cap
agreements, floor agreements, collar agreements, interest rate agreements,
foreign exchange rate agreements, options, commodity futures contracts,
commodity option contracts; and (C) similar financial instruments, other
than obligations on account of senior indebtedness and obligations on
account of indebtedness for money borrowed ranking equal with or
subordinate to the subordinated debt securities, including our existing
subordinated indebtedness.
As of December 31, 1999, we had approximately $2 million in subordinated
debt outstanding and approximately $250 million of senior indebtedness and other
financial obligations outstanding.
The subordinated indenture does not limit or prohibit the incurrence by us
or any of our subsidiaries, including State Street Bank, of additional senior
indebtedness or other financial obligations, which may include indebtedness that
is senior to the subordinated debt securities, but subordinate to our other
obligations. Any prospectus supplement relating to a particular series of
subordinated debt securities will set forth the aggregate amount of our
indebtedness senior to the subordinated debt securities as of a recent date.
The subordinated debt securities shall rank equal in right of payment with
each other and with our 7.75% Convertible Subordinated Debentures, "EXISTING
SUBORDINATED INDEBTEDNESS," subject to the obligations of the holders of
subordinated debt securities to pay over amounts remaining after payment of
senior indebtedness to persons in respect of other financial obligations.
The prospectus supplement may further describe the provisions, if any,
which may apply to the subordination of the subordinated debt securities of a
particular series.
Restrictive Covenants
The subordinated indenture does not contain any significant restrictive
covenants. The prospectus supplement relating to a series of subordinated debt
securities may describe certain restrictive covenants, if any, to which we may
be bound under the subordinated indenture.
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 WARRANTS
Offered Warrants
We may issue warrants that are debt warrants or universal warrants. We may
offer warrants separately or together with one or more additional warrants or
debt securities or any combination of those securities in the form of units, as
described in the applicable prospectus supplement. If we issue warrants as part
of a unit, the accompanying prospectus supplement will specify whether those
warrants may be separated from the other securities in the unit prior to the
warrants' expiration date. Universal warrants issued in the United States may
not be so separated prior to the 91st day after the issuance of the unit, unless
otherwise specified in the applicable prospectus supplement.
Debt Warrants. We may issue, together with debt securities or separately,
warrants for the purchase of debt securities on terms to be determined at the
time of sale. We refer to this type of warrant as a "DEBT WARRANT."
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Universal Warrants. We may also issue warrants to purchase or sell, on
terms to be determined at the time of sale:
o securities of an entity not affiliated with us, a basket of those
securities, an index or indices of those securities or any combination of
the above;
o currencies; or
o commodities.
We refer to the property in the above clauses as "WARRANT PROPERTY." We
refer to this type of warrant as a "UNIVERSAL WARRANT." We may satisfy our
obligations, if any, with respect to any universal warrants by delivering the
warrant property or, in the case of warrants to purchase or sell securities or
commodities, the cash value of the securities or commodities, as described in
the applicable prospectus supplement.
Further Information in Prospectus Supplement
General Terms of Warrants
The applicable prospectus supplement will contain, where applicable, the
following terms of and other information relating to the warrants:
o the specific designation and aggregate number of, and the price at which
we will issue, the warrants;
o the currency with which the warrants may be purchased;
o the date on which the right to exercise the warrants will begin and the
date on which that right will expire or, if you may not continuously
exercise the warrants throughout that period, the specific date or dates
on which you may exercise the warrants;
o whether the warrants will be issued in fully registered form or bearer
form, in definitive or global form or in any combination of these forms,
although, in any case, the form of a warrant included in a unit will
correspond to the form of the unit and of any debt security included in
that unit;
o any applicable material United States federal income tax consequences;
o the identity of the warrant agent for the warrants and of any other
depositaries, execution or paying agents, transfer agents, registrars,
determination, or other agents;
o the proposed listing, if any, of the warrants or any securities
purchasable upon exercise of the warrants on any securities exchange;
o if applicable, the minimum or maximum amount of the warrants that may be
exercised at any one time;
o information with respect to book-entry procedures, if any;
o the antidilution provisions of the warrants, if any;
o any redemption or call provisions;
o whether the warrants are to be sold separately or with other securities as
parts of units; and
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o any other terms of the warrants.
Additional Terms of Debt Warrants
The applicable prospectus supplement will contain, where applicable, the
following terms of and other information relating to any debt warrants:
o the designation, aggregate principal amount, currency and terms of the
debt securities that may be purchased upon exercise of the debt warrants;
o if applicable, the designation and terms of the debt securities with which
the debt warrants are issued and the number of the debt warrants issued
with each of the debt securities;
o if applicable, the date on and after which the debt warrants and the
related debt securities will be separately transferable; and
o the principal amount of debt securities purchasable upon exercise of each
debt warrant, the price at which and the currency in which the debt
securities may be purchased and the method of exercise.
Additional Terms of Universal Warrants
The applicable prospectus supplement will contain, where applicable, the
following terms of and other information relating to any universal warrants:
o whether the universal warrants are put warrants or call warrants and
whether you or we will be entitled to exercise the warrants;
o the specific warrant property, and the amount or the method for
determining the amount of the warrant property, purchasable or saleable
upon exercise of each universal warrant;
o the price at which and the currency with which the underlying securities,
currencies or commodities may be purchased or sold upon the exercise of
each universal warrant, or the method of determining that price;
o whether the exercise price may be paid in cash, by the exchange of any
other security offered with the universal warrants or both and the method
of exercising the universal warrants; and
o whether the exercise of the universal warrants is to be settled in cash or
by delivery of the underlying securities, commodities, or both.
Significant Provisions of the Warrant Agreements
We will issue the warrants under one or more warrant agreements to be
entered into between us and a bank or trust company, as warrant agent, in one or
more series, which will be described in the prospectus supplement for the
warrants. The forms of warrant agreements are filed as exhibits to the
registration statement. The following summaries of significant provisions of the
warrant agreements and the warrants are not intended to be comprehensive and
holders of warrants should review the detailed provisions of the relevant
warrant agreement for a full description and for other information regarding the
warrants.
Modifications Without Consent of Warrantholders
We and the warrant agent may amend the terms of the warrants and the
warrant certificates without the consent of the holders to:
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o cure any ambiguity;
o cure, correct or supplement any defective or inconsistent provision; or
o amend the terms in any other manner which we may deem necessary or
desirable and which will not adversely affect the interests of the
affected holders in any material respect.
Enforceability of Rights of Warrantholders
The warrant agents will act solely as our agents in connection with the
warrant certificates and will not assume any obligation or relationship of
agency or trust for or with any holders of warrant certificates or beneficial
owners of warrants. Any holder of warrant certificates and any beneficial owner
of warrants may, without the consent of any other person, enforce by appropriate
legal action, on its own behalf, its right to exercise the warrants evidenced by
the warrant certificates in the manner provided for in that series of warrants
or pursuant to the applicable warrant agreement. No holder of any warrant
certificate or beneficial owner of any warrants will be entitled to any of the
rights of a holder of the debt securities or any other warrant property, if any,
purchasable upon exercise of the warrants, including, without limitation, the
right to receive the payments on those debt securities or other warrant property
or to enforce any of the covenants or rights in the relevant indenture or any
other similar agreement.
Registration and Transfer of Warrants
Subject to the terms of the applicable warrant agreement, warrants in
registered, definitive form may be presented for exchange and for registration
of transfer, at the corporate trust office of the warrant agent for that series
of warrants, or at any other office indicated in the prospectus supplement
relating to that series of warrants, without service charge. However, the holder
will be required to pay any taxes and other governmental charges as described in
the warrant agreement. The transfer or exchange will be effected only if the
warrant agent for the series of warrants is satisfied with the documents of
title and identity of the person making the request.
Governing Law
The warrants and each warrant agreement will be governed by, and construed
in accordance with, the laws of the State of New York.
GLOBAL SECURITIES
General
The debt securities may be issued in whole or in part in the form of one
or more fully registered global securities, each a "GLOBAL SECURITY," that will
be deposited with, or on behalf of, a depository which, unless otherwise
indicated in the applicable prospectus supplement for such series, will be DTC.
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 in
the following manner: (1) by the depository for such global security to a
nominee of such depository or (2) by a nominee of such depository to such
depository or another nominee of such depository or (3) by such depository or
any such nominee to a successor of such depository or a nominee of such
successor or (4) in the manner provided in the final paragraph under this
heading.
The specific terms of the depository arrangement with respect to any debt
securities will be described in the applicable prospectus supplement. We
anticipate that the following provisions will apply to all depository
arrangements.
Upon the issuance of a global 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 of
the debt
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securities represented by such global security to the accounts of persons that
have accounts with such depository, each such person, a "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
debt securities or by us if we have offered and sold such debt securities
directly. Ownership of beneficial interests in a global security will be limited
to participants or persons that may hold interests through participants.
Ownership of a 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 debt securities
represented by such global security for all purposes under the applicable
indenture. Except as set forth below, owners of beneficial interests in a global
security will not be entitled to have debt 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. 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. We understand that under
existing industry practices, if we request 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 debt
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 debt securities. None of State Street, the trustee for such
offered securities, any paying agent for such offered securities 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.
We expect that the depository for any debt 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.
We also expect that payments by participants to owners of beneficial interests
in such global debt 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 has notified us that it is unwilling or unable to
continue as depository for such global debt security or has ceased
to be a clearing agency registered under the Exchange Act;
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(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.
Book-Entry Issuance
We expect DTC to act as securities depository for all of the debt
securities. The debt securities will be issued only as fully-registered
securities registered in the name of Cede & Co. (DTC's nominee). DTC will thus
be the only registered holder of the debt securities and will be considered the
sole owner of the debt securities for purposes of the declaration. One or more
fully-registered global certificates will be issued for the debt securities,
representing in the aggregate the aggregate principal balance of debt
securities.
In this prospectus and the accompanying prospectus supplement, for
book-entry debt securities, references to actions taken by debt security holders
will mean actions taken by DTC upon instructions from its participants, and
reference to payments and notices of redemptions to debt security holders will
mean payments and notices of redemption to DTC as the registered holder of the
debt securities for distribution to the participants in accordance with DTC's
procedures.
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. The rules applicable to DTC and its
participants are on file with the SEC.
Purchases of debt securities within the DTC system must be made by or
through direct participants, which will receive a credit for the debt securities
on DTC's records. The ownership interest of each actual purchaser of each debt
security, each, a "BENEFICIAL OWNER," is in turn to be recorded on the direct
and indirect participants' records, including Euroclear and Cedel. DTC will
maintain accounts showing the debt security holdings of its participants, and
these participants will in turn maintain accounts showing the debt security
holdings of their customers. Some of these customers may themselves be
securities intermediaries holding debt securities for their customers. Thus,
each beneficial owner of a book-entry debt security will hold that debt security
indirectly through a hierarchy of intermediaries, with DTC at the "top" and the
beneficial owner's own securities intermediary at the "bottom." 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 debt securities. Transfers of ownership interests in the 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 debt securities, except
in the event that use of the book-entry system for the 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 by 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 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 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 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 debt
securities; DTC's records reflect only the identity of the direct participants
to whose accounts such 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 debt securities. If less than all of 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 debt securities is limited to the
holders of record of the debt securities, in those instances in which a vote is
required, neither DTC nor Cede & Co. will itself consent or vote with respect to
the debt securities. Under its usual procedures, DTC would mail an omnibus proxy
to the relevant trustee as soon as possible after the record date. Such omnibus
proxy assigns Cede & Co.'s consenting or voting rights to those direct
participants to whose accounts such or debt securities are credited on the
record date (identified in a listing attached to the omnibus proxy).
Distribution payments on the debt securities will be made by the relevant
trustee to DTC. DTC's practice is to credit direct participants' accounts on the
relevant 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 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.
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DTC may discontinue providing its services as securities depository with
respect to any of the debt securities at any time by giving reasonable notice to
the relevant trustee and to us. Under such circumstances, in the event that a
successor securities depository is not obtained, definitive certificates
representing such debt securities are required to be printed and delivered.
Additionally, we, at our option, may decide to discontinue use of the system of
book-entry transfers through DTC (or a successor depository). After an event of
default, the holders of a majority in 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 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 we believe to be accurate, but we assume no
responsibility for the accuracy thereof. We have no 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
We may sell securities:
o to the public through a group of underwriters managed or co-managed by,
one or more underwriters, which may be affiliates;
o through one or more agents, which may be affiliates; or
o directly to purchasers.
The distribution of the securities may be effected from time to time in
one or more transactions:
o at a fixed price, or prices, which may be changed from time to time;
o at market prices prevailing at the time of sale;
o at prices related to such prevailing market prices; or
o at negotiated prices.
Each prospectus supplement will describe the method of distribution of the
securities and any applicable restrictions.
The prospectus supplement with respect to the securities of a particular
series will describe the terms of the offering of the securities, including the
following:
o the name of the agent or the name or names of any underwriters;
o the public offering or purchase price;
o any discounts and commissions to be allowed or paid to the agent or
underwriters;
o all other items constituting underwriting compensation;
o any discounts and commissions to be allowed or paid to dealers; and
o any exchanges on which the securities will be listed.
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Only the agents or underwriters named in the prospectus supplement are
agents or underwriters in connection with the securities being offered.
We may agree to enter into an agreement to indemnify the agents and the
several underwriters against certain civil liabilities, including liabilities
under the Securities Act or to contribute to payments the agents or the
underwriters may be required to make.
If so indicated in the applicable prospectus supplement, we will authorize
underwriters or other persons acting as our agents to solicit offers by certain
institutions to purchase debt securities or warrants from us pursuant to delayed
delivery contracts providing for payment and delivery on the date stated in the
prospectus supplement. Each contract will be for an amount not less than, and
the aggregate amount of securities sold pursuant to such contracts shall not be
less nor more than, the respective amounts stated in the prospectus supplement.
Institutions with whom the contracts, when authorized, may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and other institutions, but
shall in all cases be subject to our approval. Delayed delivery contracts will
not be subject to any conditions except that:
o the purchase by an institution of the debt securities or warrants covered
under that contract shall not at the time of delivery be prohibited under
the laws of the jurisdiction to which that institution is subject; and
o if the debt securities or warrants are also being sold to underwriters
acting as principals for their own account, the underwriters shall have
purchased such debt securities or warrants not sold for delayed delivery.
The underwriters and other persons acting as our agents will not have any
responsibility in respect of the validity or performance of delayed
delivery contracts.
Certain of the underwriters and their associates and affiliates may be
customers of, have borrowing relationships with, engage in other transactions
with, and/or perform services, including investment banking services, for, us or
one or more of our affiliates in the ordinary course of business.
Certain of the underwriters may use this prospectus and the accompanying
prospectus supplement for offers and sales related to market-making transactions
in the securities. These underwriters may act as principal or agent in these
transactions, and the sales will be made at prices related to prevailing market
prices at the time of sale.
The securities will be new issues of securities and will have no
established trading market. The securities may or may not be listed on a
national securities exchange or the Nasdaq National Market. We can make no
assurance as to the liquidity of or the existence of trading markets for any of
the securities.
VALIDITY OF SECURITIES
Unless the applicable prospectus supplement indicates otherwise, certain
legal matters will be passed upon by Ropes & Gray for State Street 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 partner of Ropes & Gray, is a director of State Street. Mr. Casner
owns beneficially a total of 17,204 shares of common stock of State Street.
Ropes & Gray performs services for State Street from time to time.
EXPERTS
The consolidated financial statements of State Street Corporation
incorporated by reference in State Street Corporation's Annual Report (Form
10-K) for the year ended December 31, 1999, have been audited by Ernst & Young
LLP, independent auditors, as set forth in their report thereon incorporated by
reference therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
report given on the authority of such firm as experts in accounting and
auditing.
With respect to the unaudited condensed consolidated interim financial
information for the three-month periods ended March 31, 1999 and March 31, 1998,
the six-month periods ended June 30, 1999 and June 30, 1998, and the nine-month
periods ended September 30, 1999 and September 30, 1998, incorporated by
reference in this Prospectus, Ernst & Young LLP have reported that they have
applied limited procedures in accordance with professional standards for a
review of such information. However, their separate report, included in State
Street Corporation's Quarterly Reports on Form 10-Q for the quarters ended March
31, 1999, June 30, 1999, and September 30 1999, and incorporated herein by
reference, states that they did not audit and they do not express an opinion on
that interim financial information. Accordingly, the degree of reliance on their
report on such information should be restricted considering the limited nature
of the review procedures applied. The independent auditors are not subject to
the liability provisions of Section 11 of the Securities Act of 1933 (the "Act")
for their report on the unaudited interim financial information because that
report is not a "report" or a "part" of the Registration Statement prepared or
certified by the auditors within the meaning of Sections 7 and 11 of the Act.
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STATE STREET CORPORATION
$1,000,000,000
DEBT SECURITIES
WARRANTS
--------------------
PROSPECTUS
, 2000
--------------------
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized anyone to provide you with
different information.
We are not offering the debt securities in any state where the offer is
not permitted.
We do not claim the accuracy of the information in this prospectus as of
any date other than the dates stated on the cover.
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Subject to Completion, Dated , 2000
$1,000,000,000
State Street Corporation
Common Stock
Preferred Stock
Depositary Shares
Warrants
----------------------
State Street Corporation may offer and sell:
o Common Stock
o Preferred Stock
o Depositary Shares
o Warrants
We will provide specific terms of these securities in supplements to this
prospectus. You should read this prospectus and any supplements carefully before
you invest.
A security is not a deposit and the securities are not insured or
guaranteed by the Federal Deposit Insurance Corporation or any other
governmental agency.
This prospectus may be used to offer and sell securities only if
accompanied by the prospectus supplement for those securities.
Neither the SEC nor any state securities commission has approved these
securities or determined that this prospectus supplement or the prospectus is
truthful or complete. Any representation to the contrary is a criminal offense.
--------------------
The date of this Prospectus is , 2000.
--------------------
<PAGE>
IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS PROSPECTUS AND THE
ACCOMPANYING PROSPECTUS SUPPLEMENT
We provide information to you about the securities in two separate
documents that progressively provide more detail:
o this prospectus, which provides general information, some of which may not
apply to your securities; and
o the accompanying prospectus supplement, which describes the terms of the
securities.
If the terms of your securities vary between the prospectus supplement and
the accompanying prospectus, you should rely on the information in the following
order of priority:
o the prospectus supplement; and
o the prospectus.
We include cross-references in this prospectus and the accompanying
prospectus supplement to captions in these materials where you can find further
related discussions. The following Table of Contents and the Table of Contents
included in the accompanying prospectus supplement provide the pages on which
these captions are located.
--------------------
Neither we nor the underwriters have taken any action that would permit us
to publicly sell these securities in any jurisdiction outside the United States.
If you are an investor outside the United States, you should inform yourself
about and comply with any restrictions as to the offering of the securities and
the distribution of this prospectus.
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<PAGE>
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS......................................................... 4
WHERE YOU CAN FIND MORE
INFORMATION................................................................. 4
FORWARD-LOOKING STATEMENTS.....................................................6
STATE STREET CORPORATION.......................................................7
CONSOLIDATED RATIOS OF EARNINGS TO
FIXED CHARGES................................................................7
USE OF PROCEEDS................................................................7
DESCRIPTION OF PREFERRED STOCK.................................................7
General......................................................................7
Rank.........................................................................8
Dividends....................................................................8
Rights Upon Liquidation......................................................9
Redemption...................................................................9
Voting Rights...............................................................10
Conversion Rights...........................................................10
Exchangeability.............................................................10
Transfer Agent and Registrar................................................10
DESCRIPTION OF DEPOSITARY SHARES..............................................10
General.....................................................................10
Dividends and Other Distributions...........................................11
Withdrawal of Stock.........................................................11
Redemption of Depositary Shares.............................................11
Voting the Preferred Stock..................................................11
Amendment and Termination of the Deposit Agreement..........................12
Charges of Depositary.......................................................12
Resignation and Removal of Depositary.......................................12
Notices.....................................................................12
Limitation of Liability.....................................................12
Inspection of Books.........................................................13
DESCRIPTION OF COMMON STOCK...................................................13
General.....................................................................13
Shareholders' Rights Plan...................................................13
Transfer Agent and Registrar................................................14
Restrictions on Ownership...................................................14
DESCRIPTION OF WARRANTS.......................................................14
PLAN OF DISTRIBUTION..........................................................15
VALIDITY OF SECURITIES........................................................16
EXPERTS.......................................................................16
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission, the "SEC," utilizing a "shelf" registration
process. Under this shelf process, we may from time to time sell any combination
of the common stock, preferred stock or warrants described in this prospectus in
one or more offerings up to a total dollar amount of $1,000,000,000. We may also
sell other securities under the registration statement that will reduce the
total dollar amount of securities that we may sell under this prospectus. This
prospectus provides you with a general description of the common stock,
preferred stock or warrants we may offer. Each time we sell common stock,
preferred stock or warrants, we will provide a prospectus supplement that will
contain specific information about the terms of that offering. The prospectus
supplement may also add, update or change information contained in this
prospectus. You should read both this prospectus and any prospectus supplement
together with the additional information described under the heading "Where You
Can Find More Information."
Unless otherwise indicated or unless the context requires otherwise, all
references in this prospectus to "STATE STREET," "WE," "US," "OUR" or similar
references mean State Street Corporation.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement under the Securities
Act of 1933 that registers, among others securities, the offer and sale of the
securities offered by this prospectus. The registration statement, including the
attached exhibits and schedules, contains additional relevant information about
us. The rules and regulations of the SEC allow us to omit certain information
included in the registration statement from this prospectus.
In addition, we file reports, proxy statements and other information with
the SEC under the Securities Exchange Act of 1934. You may read and copy this
information at the following locations of the SEC:
Public Reference Room
450 Fifth Street, N.W.
Room 1024
Washington, D.C. 20549
Northeast Regional Office
7 World Trade Center
Suite 1300
New York, New York 10048
Midwest Regional Office
500 West Madison Street
Suite 1400
Chicago, Illinois 60661-2511
You may also obtain copies of this information by mail from the Public
Reference Section of the SEC, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, at prescribed rates.
The SEC also maintains an Internet world wide web site that contains
reports, proxy statements and other information about issuers, like us, who file
electronically with the SEC. The address of that site is:
http://www.sec.gov.
You can also inspect reports, proxy statements and other information about
us at the offices of the New York Stock Exchange, 20 Broad Street, New York, New
York 10005.
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The SEC allows us to "incorporate by reference" information into this
prospectus. This means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The information
incorporated by reference is considered to be a part of this prospectus, except
for any information that is superseded by information that is included directly
in this document or in a more recent incorporated document.
This prospectus incorporates by reference the documents listed below that
we have previously filed with the SEC. They contain important information about
us and our financial condition.
SEC FILINGS PERIOD
- ----------- ------
Annual Report on Form 10-K Year Ended December 31, 1999
Quarterly Report on Form 10-Q Quarter ended March 31, 1999
Quarter ended June 30, 1999
Quarter ended September 30, 1999
Current Report on Form 8-K Filed January 7, 2000
We incorporate by reference additional documents that we may file with the
SEC between the date of this prospectus and the date we sell all of the debt
securities. These documents include periodic reports, such as Annual Reports on
Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as
well as proxy statements.
You can obtain any of the documents incorporated by reference in this
document through us, or from the SEC through the SEC's Internet world wide web
site at the address described previously. Documents incorporated by reference
are available from us without charge, excluding any exhibits to those documents,
unless the exhibit is specifically incorporated by reference as an exhibit in
this prospectus. You can obtain documents incorporated by reference in this
prospectus by requesting them in writing or by telephone from us at the
following address:
Investor Relations
State Street Corporation
225 Franklin Street
Boston, Massachusetts 02110
(617) 664-3477
We have not authorized anyone to give any information or make any
representation about us that is different from, or in addition to, the
information and representations contained in this prospectus or in any of the
materials that we have incorporated into this prospectus. If anyone does give
you information of this sort, you should not rely on it. If you are in a
jurisdiction where offers to sell, or solicitations of offers to purchase, the
securities offered by this document are unlawful, or if you are a person to whom
it is unlawful to direct these types of activities, then the offer presented in
this document does not extend to you. The information contained in this document
speaks only as of the date of this document unless the information specifically
indicates that another date applies.
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FORWARD-LOOKING STATEMENTS
This prospectus, including information included or incorporated by reference,
contains certain forward-looking statements with respect to our financial
condition, results of operations, plans, objectives, future performance and
business, including, without limitation, statements preceded by, followed by or
that include the words "believes," "expects," "anticipates," "estimates" or
similar expressions.
These forward-looking statements involve risks and uncertainties. Actual
results may differ materially from those contemplated by the forward-looking
statements due to many factors, including:
o future revenue may increase or decrease depending upon the extent of
increases or decreases in cross-border investments made by customers or
future customers;
o changes in the savings rate of individuals that are invested in mutual
funds or in defined contribution plans affect our revenues;
o fluctuations in worldwide securities market valuations may affect our
revenues;
o changes in markets served, including the growth rate of U.S. mutual funds,
the pace of debt issuance, outsourcing decisions, and mergers,
acquisitions and consolidations among customers and competitors may affect
our revenues;
o global and regional economic factors and changes or potential changes in
laws and regulations affecting our business, including volatile currencies
and changes in monetary policy, and social and political instability,
could affect results of operations;
o market interest rate levels, the shape of the yield curve and the
direction of interest rate changes affect net interest revenue and
fiduciary compensation from securities lending;
o the degree of volatility in foreign exchange rates may affect the amount
of foreign exchange trading revenue;
o the pace of pension reform and resulting programs including public and
private pension schemes may affect the pace of revenue growth;
o future prices that we are able to obtain for our products may increase or
decrease from current levels depending upon demand, our competitors'
activities and the introduction of new products into the marketplace;
o the pace at which existing and new customers use additional services and
assign additional assets to us for management or custody will affect
future results;
o changes in business mix, including the mix of U.S. and non-U.S. business,
may affect future results;
o technological change may be more difficult or expensive then anticipated;
and
o changes may occur in securities markets.
<PAGE>
STATE STREET CORPORATION
We are a bank holding company organized under the laws of the Commonwealth
of Massachusetts and a leading provider of services to institutional investors
and investment managers worldwide. We were organized in 1970 and conduct our
business principally through our subsidiary, State Street Bank and Trust
Company, "STATE STREET BANK," which traces its beginnings to the founding of
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. Our executive offices are located at 225
Franklin Street, Boston, Massachusetts 02110 (telephone (617) 786-3000).
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES AND PREFERRED DIVIDENDS
Our consolidated ratios of earnings to fixed charges were as follows for
the five most recent fiscal years:
Year Ended December 31,
--------------------------------
1999 1998 1997 1996 1995
---- ---- ---- ---- ----
Ratio of earnings to fixed charges ...... 2.02x 1.77x 1.93x 1.95x 1.75x
USE OF PROCEEDS
We intend to use the net proceeds from the sale of the securities for
general corporate purposes unless otherwise indicated in the prospectus
supplement or term sheet relating to a specific issue of securities. Our general
corporate purposes may include extending credit to, or funding investments in,
our subsidiaries. The precise amounts and the timing of our use of the net
proceeds will depend upon our subsidiaries' funding requirements and the
availability of other funds. Until we use the net proceeds from the sale of any
of our securities for general corporate purposes, we will use the net proceeds
to reduce our short-term indebtedness or for temporary investments. We expect
that we will, on a recurrent basis, engage in additional financings as the need
arises to finance our growth, through acquisitions or otherwise, or to fund our
subsidiaries. We and State Street Bank regularly investigate possible
acquisitions.
DESCRIPTION OF PREFERRED STOCK
The following summary contains a description of the general terms of the
preferred stock, the "PREFERRED STOCK," that we may issue. Other terms of any
series of preferred stock will be described in the prospectus supplement
relating to that series of preferred stock. The terms of any series of preferred
stock may differ from the terms described below. Certain provisions of the
preferred stock described below and in any prospectus supplement are not
complete. You should refer to our Restated Articles of Incorporation, as
amended, "ARTICLES OF INCORPORATION," and the certificate of designation which
will be filed with the SEC in connection with the offering of the series of
preferred stock.
General
Our articles of incorporation permit our board of directors to authorize
the issuance of up to 3,500,000 shares of preferred stock, without par value, in
one or more series, without shareholder action. The board of directors can
determine the rights, preferences and limitations of each series. Therefore,
without shareholder approval, our board of directors can authorize the issuance
of preferred stock with voting, conversion and other rights that could dilute
the voting power and other rights of our common stockholders. None of our
preferred stock is currently outstanding.
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The preferred stock has the terms described below unless otherwise
provided in the prospectus supplement relating to a particular series of the
preferred stock. You should read the prospectus supplement relating to the
particular series of the preferred stock being offered for specific terms,
including:
o the designation and stated value per share of the preferred stock and the
number of shares offered;
o the amount of liquidation preference per share;
o the price at which the preferred stock will be issued;
o the dividend rate, or method of calculation, the dates on which dividends
will be payable, whether dividends will be cumulative or noncumulative
and, if cumulative, the dates from which dividends will commence to
accumulate;
o any redemption or sinking fund provisions;
o any conversion provisions;
o whether we have elected to offer depositary shares as described under
"Description of Depositary Shares;" and
o any other rights, preferences, privileges, limitations and restrictions on
the preferred stock.
The preferred stock will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the prospectus supplement, each series of the
preferred stock will rank equally as to dividends and liquidation rights in all
respects with each other series of preferred stock. The rights of holders of
shares of each series of preferred stock will be subordinate to those of our
general creditors.
As described under "Description of Depositary Shares," we may, at our
option, with respect to any series of the preferred stock, elect to offer
fractional interests in shares of preferred stock, and provide for the issuance
of depositary receipts representing depositary shares, each of which will
represent a fractional interest in a share of the series of the preferred stock.
The fractional interest will be specified in the prospectus supplement relating
to a particular series of the preferred stock.
Rank
Any series of the preferred stock will, with respect to the priority of
the payment of dividends and the priority of payments upon liquidation, winding
up and dissolution, rank:
o senior to all classes of common stock and all equity securities issued by
us the terms of which specifically provide that the equity securities will
rank junior to the preferred stock, the "JUNIOR SECURITIES;"
o equally with all equity securities issued by us the terms of which
specifically provide that the equity securities will rank equally with the
preferred stock, the "PARITY SECURITIES;" and
o junior to all equity securities issued by us the terms of which
specifically provide that the equity securities will rank senior to the
preferred stock.
Dividends
Holders of the preferred stock of each series will be entitled to receive,
when, as and if declared by our board of directors, cash dividends at such rates
and on such dates described in the prospectus supplement. Different series of
preferred stock may be entitled to dividends at different rates or based on
different methods of calculation. The
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<PAGE>
dividend rate may be fixed or variable or both. Dividends will be payable to the
holders of record as they appear on our stock books on record dates fixed by our
board of directors, as specified in the applicable prospectus supplement.
Dividends on any series of the preferred stock may be cumulative or
noncumulative, as described in the applicable prospectus supplement. If our
board of directors does not declare a dividend payable on a dividend payment
date on any series of noncumulative preferred stock, then the holders of that
noncumulative preferred stock will have no right to receive a dividend for that
dividend payment date, and we will have no obligation to pay the dividend
accrued for that period, whether or not dividends on that series are declared
payable on any future dividend payment dates. Dividends on any series of
cumulative preferred stock will accrue from the date we initially issue shares
of such series or such other date specified in the applicable prospectus
supplement.
No full dividends may be declared or paid or funds set apart for the
payment of any dividends on any parity securities unless dividends have been
paid or set apart for payment on the preferred stock. If full dividends are not
paid, the preferred stock will share dividends pro rata with the parity
securities. No dividends may be declared or paid or funds set apart for the
payment of dividends on any junior securities unless full cumulative dividends
for all dividend periods terminating on or prior to the date of the declaration
or payment will have been paid or declared and a sum sufficient for the payment
set apart for payment on the preferred stock.
Our ability to pay dividends on our preferred stock is subject to policies
established by the Federal Reserve Board.
Rights Upon Liquidation
If we dissolve, liquidate or wind up our affairs, either voluntarily or
involuntarily, the holders of each series of preferred stock will be entitled to
receive, before any payment or distribution of assets is made to holders of
junior securities, liquidating distributions in the amount described in the
prospectus supplement relating to that series of the preferred stock, plus an
amount equal to accrued and unpaid dividends and, if the series of the preferred
stock is cumulative, for all dividend periods prior to that point in time. If
the amounts payable with respect to the preferred stock of any series and any
other parity securities are not paid in full, the holders of the preferred stock
of that series and of the parity securities will share proportionately in the
distribution of our assets in proportion to the full liquidation preferences to
which they are entitled. After the holders of preferred stock and the parity
securities are paid in full, they will have no right or claim to any of our
remaining assets.
Because we are a bank holding company, our rights, the rights of our
creditors and of our stockholders, including the holders of the preferred stock
offered by this prospectus, to participate in the assets of any subsidiary upon
the subsidiary's liquidation or recapitalization may be subject to the prior
claims of the subsidiary's creditors except to the extent that we may ourselves
be a creditor with recognized claims against the subsidiary.
Redemption
A series of the preferred stock may be redeemable, in whole or in part, at
our option with prior Federal Reserve Board approval. In addition, a series of
preferred stock may be subject to mandatory redemption pursuant to a sinking
fund or otherwise. The redemption provisions that may apply to a series of
preferred stock, including the redemption dates and the redemption prices for
that series, will be described in the prospectus supplement.
In the event of partial redemptions of preferred stock, whether by
mandatory or optional redemption, our board of directors will determine the
method for selecting the shares to be redeemed, which may be by lot or pro rata
or by any other method determined to be equitable.
On or after a redemption date, unless we default in the payment of the
redemption price, dividends will cease to accrue on shares of preferred stock
called for redemption. In addition, all rights of holders of the shares will
terminate except for the right to receive the redemption price.
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Unless otherwise specified in the applicable prospectus supplement for any
series of preferred stock, if any dividends on any other series of preferred
stock ranking equally as to payment of dividends and liquidation rights with
such series of preferred stock are in arrears, no shares of any such series of
preferred stock may be redeemed, whether by mandatory or optional redemption,
unless all shares of preferred stock are redeemed, and we will not purchase any
shares of such series of preferred stock. This requirement, however, will not
prevent us from acquiring such shares pursuant to a purchase or exchange offer
made on the same terms to holders of all such shares outstanding.
Under current regulations, bank holding companies may exercise an option
to redeem shares of preferred stock included as Tier 1 capital, or exchange the
preferred stock for debt securities, without the prior approval of the Federal
Reserve Board, if the bank holding company will remain well capitalized,
received a composite rating of 1 or 2 on its most recent BOPEC inspection and is
not the subject of any unresolved supervisory issues.
Voting Rights
Unless otherwise described in the applicable prospectus supplement,
holders of the preferred stock will have no voting rights except as set forth
below or as otherwise required by law or in our articles of organization.
Under regulations adopted by the Federal Reserve Board, if the holders of
any series of the preferred stock are or become entitled to vote for the
election of directors because dividends on such series are in arrears, 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% or more if it otherwise exercises a
"controlling influence" over us, may then be subject to regulation as a bank
holding company in accordance with the Bank Holding Company Act. In addition, at
such time as such series is deemed a class of voting securities, (a) 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 that series and (b) any person
other than a bank holding company may be required to obtain the approval of the
Federal Reserve Board to acquire or retain 10% or more of that series.
Conversion Rights
Shares of preferred stock of any series 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 required at
any time or at maturity to exchange those shares for our debt securities. The
applicable prospectus supplement will specify the terms of any such exchange.
Transfer Agent and Registrar
Unless otherwise indicated in the applicable prospectus supplement,
Equiserve Limited Partnership, an affiliate of State Street, will be the
transfer agent, dividend and redemption price disbursement agent and registrar
for shares of each series of the preferred stock.
DESCRIPTION OF DEPOSITARY SHARES
General
We may, at our option, elect to offer fractional shares of preferred
stock, "DEPOSITARY SHARES," rather than full shares of preferred stock. If we
do, we will issue to the public receipts, called "DEPOSITARY
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RECEIPTS," for depositary shares, each of which will represent a fraction, to be
described in the prospectus supplement, of a share of a particular series of
preferred stock.
The shares of any series of preferred stock represented by depositary
shares will be deposited under a deposit agreement, the "DEPOSIT AGREEMENT,"
between us and the depositary named in the prospectus supplement, the
"DEPOSITARY." Subject to the terms of the deposit agreement, each owner of a
depositary share will be entitled, in proportion to the applicable fractional
interest in a share of preferred stock represented by the depositary share, to
all the rights and preferences of the preferred stock represented by the
depositary share. Those rights include dividend, voting, redemption, conversion
and liquidation rights.
The following summary of certain provisions of the deposit agreement is
not complete and is subject to, and is qualified in its entirety by reference
to, all the provisions of the deposit agreement. Whenever particular sections of
the deposit agreement are referred to, it is intended that the sections shall be
incorporated by reference in this prospectus. You should read copies of the
forms of deposit agreement and depositary receipt filed as exhibits to the
registration statement which contains this prospectus.
Dividends and Other Distributions
The depositary will distribute all cash dividends or other cash
distributions received in respect of the preferred stock to the record holders
of depositary shares in proportion to the numbers of depositary shares owned by
those holders.
If there is a distribution other than in cash, the depositary will
distribute property received by it to the record holders of depositary shares,
unless the depositary determines that it is not feasible to make the
distribution. If this occurs, the depositary may, with our approval, sell the
property and distribute the net proceeds from the sale to the holders.
Withdrawal of Stock
Unless the related depositary shares have been previously called for
redemption, upon surrender of the depositary receipts at the office of the
depositary, the holder of the depositary shares will be entitled to delivery, at
the office of the depositary to or upon his or her order, of the number of whole
shares of the preferred stock and any money or other property represented by the
depositary shares. If the depositary receipts delivered by the holder evidence a
number of depositary shares in excess of the number of depositary shares
representing the number of whole shares of preferred stock to be withdrawn, the
depositary will deliver to the holder at the same time a new depositary receipt
evidencing the excess number of depositary shares. In no event will the
depositary deliver fractional shares of preferred stock upon surrender of
depositary receipts.
Redemption of Depositary Shares
Whenever we redeem shares of preferred stock held by the depositary, the
depositary will redeem as of the same redemption date the number of depositary
shares representing shares of the preferred stock so redeemed, so long as we
have paid in full to the depositary the redemption price of the preferred stock
to be redeemed plus an amount equal to any accumulated and unpaid dividends on
the preferred stock to the date fixed for redemption. The redemption price per
depositary share will be equal to the redemption price and any other amounts per
share payable on the preferred stock multiplied by the fraction of a share of
preferred stock represented by one depositary share. If less than all the
depositary shares are to be redeemed, the depositary shares to be redeemed will
be selected by lot or pro rata as may be determined by the depositary.
After the date fixed for redemption, depositary shares called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of depositary shares will cease, except the right to receive the moneys
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payable upon redemption and any money or other property to which the holders of
the depositary shares were entitled upon redemption upon surrender to the
depositary of the depositary receipts evidencing the depositary shares.
Voting the Preferred Stock
Upon receipt of notice of any meeting at which the holders of the
preferred stock are entitled to vote, the depositary will mail the information
contained in the notice of meeting to the record holders of the depositary
receipts relating to that preferred stock. The record date for the depositary
receipts relating to the preferred stock will be the same date as the record
date for the preferred stock. Each record holder of the depositary shares on the
record date will be entitled to instruct the depositary as to the exercise of
the voting rights pertaining to the number of shares of preferred stock
represented by that holder's depositary shares. The depositary will endeavor,
insofar as practicable, to vote the number of shares of preferred stock
represented by the depositary shares in accordance with those instructions, and
we will agree to take all action which may be deemed necessary by the depositary
in order to enable the depositary to do so. The depositary will not vote any
shares of preferred stock except to the extent it receives specific instructions
from the holders of depositary shares representing that number of shares of
preferred stock.
Amendment and Termination of the Deposit Agreement
The form of depositary receipt evidencing the depositary shares and any
provision of the deposit agreement may at any time be amended by agreement
between us and the depositary. However, any amendment that materially and
adversely alters the rights of the existing holders of depositary receipts will
not be effective unless it has been approved by the holders of at least a
majority of the depositary shares then outstanding.
We or the depositary may terminate the deposit agreement only if:
o all outstanding depositary shares have been redeemed; or
o there has been a final distribution in respect of the preferred stock in
connection with our liquidation, dissolution or winding up and the
distribution has been distributed to the holders of depositary receipts.
Charges of Depositary
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. We will pay charges of
the depositary in connection with the initial deposit of the preferred stock and
any redemption of the preferred stock. Holders of depositary receipts will pay
other transfer and other taxes and governmental charges and such other charges
as are expressly provided in the deposit agreement to be for their accounts.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering to us notice of its
election to do so, and we may remove the depositary at any time. Any resignation
or removal of the depositary will take effect upon our appointment of a
successor depositary and its acceptance of such appointment. The successor
depositary must be appointed within 60 days after delivery of the notice of
resignation or removal and must be a bank or trust company having its principal
office in the United States and having a combined capital and surplus of at
least $50,000,000.
Notices
The depositary will forward to holders of depositary receipts all notices,
reports and other communications, including proxy solicitation materials
received from us, which are delivered to the depositary and which we are
required to furnish to the holders of the preferred stock.
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Limitation of Liability
Neither we nor the depositary will be liable if either of us is prevented
or delayed by law or any circumstance beyond our control in performing our
obligations under the deposit agreement. Our obligations and those of the
depositary under the deposit agreement will be limited to performance in good
faith of our and their duties thereunder. We and the depositary will not be
obligated to prosecute or defend any legal proceeding in respect of any
depositary shares or preferred stock unless satisfactory indemnity is furnished.
We and the depositary may rely upon written advice of counsel or accountants, on
information provided by persons presenting preferred stock for deposit, holders
of depositary receipts or other persons believed to be competent and on
documents believed to be genuine.
Inspection of Books
Any record holder of depositary shares who has been a holder for at least
six months or who holds at least five percent of our outstanding shares of
capital stock will be entitled to inspect the transfer books relating to the
depositary shares and the list of record holders of depositary shares upon
certification to the depositary that the holder is acting in good faith and that
the inspection is for a proper purpose.
DESCRIPTION OF COMMON STOCK
General
We have 250,000,000 shares of common stock, $1.00 par value per share,
authorized, of which 159,590,000 shares were outstanding as of December 31,
1999.
Holders of our common stock are entitled to receive dividends when, as and
if declared by our board of directors out of any funds legally available for
dividends. Holders of our common stock are also entitled, upon our liquidation,
and after claims of creditors and preferences of preferred stock, and any other
class or series of preferred stock outstanding at the time of liquidation, to
receive pro rata our net assets. We pay dividends on our common stock only if we
have paid or provided for all dividends on our outstanding series of preferred
stock, for the then current period and, in the case of any cumulative preferred
stock, all prior periods.
Our preferred stock has, or upon issuance will have, preference over our
common stock with respect to the payment of dividends and the distribution of
assets in the event of our liquidation or dissolution. Our preferred stock also
has such other preferences as may be fixed by our board of directors.
Holders of our common stock are entitled to one vote for each share that
they hold and are vested with all of the voting power except as our board of
directors has provided, or may provide in the future, with respect to preferred
stock or any other class or series of preferred stock that the board of
directors may hereafter authorize. See "Description of Preferred Stock" and
"Description of Existing Preferred Stock." Shares of our common stock are not
redeemable, and have no subscription, conversion or preemptive rights.
The affirmative vote of not less than 80% of our outstanding voting stock,
voting separately as a class, is required for certain business combinations
between us and/or our subsidiaries and persons owning 10% or more of our voting
stock. See "Selected Provisions in our Articles of Incorporation--Business
Combinations With Related Persons."
Our common stock is listed on the New York Stock Exchange. Outstanding
shares of our common stock are validly issued, fully paid and non-assessable.
Holders of our common stock are not, and will not be, subject to any liability
as stockholders.
Shareholders' Rights Plan
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In 1988, State Street declared a dividend of one preferred share purchase
right for each outstanding share of common stock pursuant to a shareholders'
Rights Agreement. On June 18, 1998, State Street adopted an amendment to the
Rights Agreement and has restated the Rights Agreement. Under the Amended and
Restated Rights Agreement, a right may be exercised, under certain conditions,
to purchase one four-hundredths share of a series of participating preferred
stock at an exercise price of $265, subject to adjustment. The rights become
exercisable if a party acquires or obtains the right to acquire 10% or more of
State Street's common stock or after commencement or public announcement of an
offer for 10% or more of State Street's common stock. When exercisable, under
certain conditions, each right also entitles the holder thereof to purchase
shares of common stock, of either State Street or of the acquiror, having a
market value of two times the then current exercise price of that right.
The rights expire in September 2008, and may be redeemed at a price of
$.0025 per right at any time prior to expiration or the acquisition of 10% of
State Street's common stock. Under certain circumstances, the rights may be
redeemed after they become exercisable and may be subject to automatic
redemption.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Equiserve Limited
Partnership, an affiliate of State Street.
Restrictions on Ownership
The Bank Holding Company Act requires any "bank holding company," as
defined in the Bank Holding Company Act, to obtain the approval of the Federal
Reserve Board prior to the acquisition of 5% or more of our common stock. Any
person, other than a bank holding company, is required to obtain prior approval
of the Federal Reserve Board to acquire 10% or more of our common stock under
the Change in Bank Control Act. Any holder of 25% or more of our common stock,
or a holder of 5% or more if such holder otherwise exercises a "controlling
influence" over us, is subject to regulation as a bank holding company under the
Bank Holding Company Act.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase preferred stock or common stock.
Warrants may be issued independently or together with preferred stock or common
stock and may be attached to or separate from any preferred stock or common
stock. Each series of warrants will be issued under a separate warrant agreement
to be entered into between us and a warrant agent. The warrant agent will act
solely as our agent in connection with the warrants and will not assume any
obligation or relationship of agency or trust for or with any holders or
beneficial owners of warrants. Below is a description of certain general terms
and provisions of the warrants that we may offer. Further terms of the warrants
and the applicable warrant agreement will be described in the prospectus
supplement.
The prospectus supplement relating to a particular issue of warrants will
describe the terms of the warrants, which may include the following:
o the title of the warrants;
o the offering price for the warrants, if any;
o the aggregate number of the warrants;
o the designation and terms of the preferred stock or common stock
purchasable upon exercise of the warrants;
o if applicable, the designation and terms of the preferred stock or common
stock with which the warrants are issued and the number of warrants issued
with each security;
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o if applicable, the date from and after which the warrants and the related
preferred stock or common stock will be separately transferable;
o the number of shares of preferred stock or common stock purchasable upon
exercise of a warrant and the price at which those shares may be
purchased;
o the date on which the right to exercise the warrants shall begin and the
date on which such right shall expire;
o if applicable, the minimum or maximum amount of the warrants that may be
exercised at any one time;
o information with respect to book-entry procedures, if any;
o the currency or currency units in which the offering price, if any, and
the exercise price are payable;
o if applicable, a discussion of material United States Federal income tax
considerations;
o the antidilution provisions of the warrants, if any;
o any redemption or call provisions; and
o any additional terms of the warrants, including terms, procedures, and
limitations relating to the exchange and exercise of the warrants.
PLAN OF DISTRIBUTION
We may sell securities:
o to the public through a group of underwriters managed or co-managed by,
one or more underwriters, which may be affiliates;
o through one or more agents, which may be affiliates; or
o directly to purchasers.
The distribution of the securities may be effected from time to time in
one or more transactions:
o at a fixed price, or prices, which may be changed from time to time;
o at market prices prevailing at the time of sale;
o at prices related to such prevailing market prices; or
o at negotiated prices.
Each prospectus supplement will describe the method of distribution of the
securities and any applicable restrictions.
The prospectus supplement with respect to the securities of a particular
series will describe the terms of the offering of the securities, including the
following:
o the name of the agent or the name or names of any underwriters;
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o the public offering or purchase price;
o any discounts and commissions to be allowed or paid to the agent or
underwriters;
o all other items constituting underwriting compensation;
o any discounts and commissions to be allowed or paid to dealers; and
o any exchanges on which the securities will be listed.
Only the agents or underwriters named in the prospectus supplement are
agents or underwriters in connection with the securities being offered.
We may agree to enter into an agreement to indemnify the agents and the
several underwriters against certain civil liabilities, including liabilities
under the Securities Act or to contribute to payments the agents or the
underwriters may be required to make.
If so indicated in the applicable prospectus supplement, we will authorize
underwriters or other persons acting as our agents to solicit offers by certain
institutions to purchase securities from us pursuant to delayed delivery
contracts providing for payment and delivery on the date stated in the
prospectus supplement. Each contract will be for an amount not less than, and
the aggregate amount of securities sold pursuant to such contracts shall not be
less nor more than, the respective amounts stated in the prospectus supplement.
Institutions with whom the contracts, when authorized, may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and other institutions, but
shall in all cases be subject to our approval. Delayed delivery contracts will
not be subject to any conditions except that:
o the purchase by an institution of the securities covered under that
contract shall not at the time of delivery be prohibited under the laws of
the jurisdiction to which that institution is subject; and
o if the securities are also being sold to underwriters acting as principals
for their own account, the underwriters shall have purchased such
securities not sold for delayed delivery. The underwriters and other
persons acting as our agents will not have any responsibility in respect
of the validity or performance of delayed delivery contracts.
Certain of the underwriters and their associates and affiliates may be
customers of, have borrowing relationships with, engage in other transactions
with, and/or perform services, including investment banking services, for, us or
one or more of our affiliates in the ordinary course of business.
Certain of the underwriters may use this prospectus and the accompanying
prospectus supplement for offers and sales related to market-making transactions
in the securities. These underwriters may act as principal or agent in these
transactions, and the sales will be made at prices related to prevailing market
prices at the time of sale.
The securities will be new issues of securities and will have no
established trading market. The securities may or may not be listed on a
national securities exchange or the Nasdaq National Market. We can make no
assurance as to the liquidity of or the existence of trading markets for any of
the securities.
VALIDITY OF SECURITIES
Unless the applicable prospectus supplement indicates otherwise, certain
legal matters will be passed upon by Ropes & Gray for State Street 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 partner of Ropes & Gray, is a director of State Street. Mr. Casner
owns beneficially a total of 17,204 shares of common stock of State Street.
Ropes & Gray performs services for State Street from time to time.
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EXPERTS
The consolidated financial statements of State Street Corporation
incorporated by reference in State Street Corporation's Annual Report (Form
10-K) for the year ended December 31, 1999, have been audited by Ernst & Young
LLP, independent auditors, as set forth in their report thereon incorporated by
reference therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
report given on the authority of such firm as experts in accounting and
auditing.
With respect to the unaudited condensed consolidated interim financial
information for the three-month periods ended March 31, 1999 and March 31, 1998,
the six-month periods ended June 30, 1999 and June 30, 1998, and the nine-month
periods ended September 30, 1999 and September 30, 1998, incorporated by
reference in this Prospectus, Ernst & Young LLP have reported that they have
applied limited procedures in accordance with professional standards for a
review of such information. However, their separate report, included in State
Street Corporation's Quarterly Reports on Form 10-Q for the quarters ended March
31, 1999, June 30, 1999, and September 30 1999, and incorporated herein by
reference, states that they did not audit and they do not express an opinion on
that interim financial information. Accordingly, the degree of reliance on their
report on such information should be restricted considering the limited nature
of the review procedures applied. The independent auditors are not subject to
the liability provisions of Section 11 of the Securities Act of 1933 (the "Act")
for their report on the unaudited interim financial information because that
report is not a "report" or a "part" of the Registration Statement prepared or
certified by the auditors within the meaning of Sections 7 and 11 of the Act.
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STATE STREET CORPORATION
$1,000,000,000
COMMON STOCK
PREFERRED STOCK
DEPOSITARY SHARES
WARRANTS
--------------------
PROSPECTUS
, 2000
--------------------
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized anyone to provide you with
different information.
We are not offering the securities in any state where the offer is not
permitted.
We do not claim the accuracy of the information in this prospectus as of
any date other than the dates stated on the cover.
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Subject to Completion, Dated , 2000
$1,000,000,000
State Street Corporation
----------------------
State Street Capital Trust II
State Street Capital Trust III
State Street Capital Trust IV
Capital Securities
Fully and Unconditionally
Guaranteed By
State Street Corporation
----------------------
THE TRUSTS:
The trusts are Delaware business trusts. Each trust may from time to time:
o sell capital securities representing undivided beneficial interests in the
trust to the public;
o sell common securities representing undivided beneficial interests in the
trust to State Street Corporation;
o use the proceeds from these sales to buy an equal principal amount of
junior subordinated debentures of State Street Corporation; and
o distribute the cash payments it receives on the junior subordinated
debentures it owns to the holders of the capital and common securities.
DISTRIBUTIONS:
o For each capital security that you own, you will receive cumulative cash
distributions at a rate set forth in the accompanying prospectus
supplement on the liquidation amount of the preferred security. The
liquidation amount per capital security will be set forth in the
accompanying prospectus supplement.
STATE STREET CORPORATION:
State Street Corporation will fully and unconditionally guarantee the
payment by the trust of the capital securities based on obligations discussed in
this prospectus. This is called the capital securities guarantee.
--------------------
We will provide specific terms of these securities in supplements to this
prospectus. You should read this prospectus and any supplements carefully before
you invest.
<PAGE>
A security is not a deposit and the securities are not insured or
guaranteed by the Federal Deposit Insurance Corporation or any other
governmental agency.
This prospectus may be used to offer and sell securities only if
accompanied by the prospectus supplement for those securities.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus supplement or the prospectus to which it relates is truthful or
complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2000
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IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS PROSPECTUS AND THE
ACCOMPANYING PROSPECTUS SUPPLEMENT
We provide information to you about the securities in two separate
documents that progressively provide more detail:
o this prospectus, which provides general information, some of which may not
apply to your securities; and
o the accompanying prospectus supplement, which describes the terms of the
securities.
If the terms of your securities vary between the prospectus supplement and
the accompanying prospectus, you should rely on the information in the following
order or priority:
o the prospectus supplement; and
o the prospectus.
We include cross-references in this prospectus and the accompanying
prospectus supplement to captions in these materials where you can find further
related discussions. The following Table of Contents and the Table of Contents
included in the accompanying prospectus supplement provide the pages on which
these captions are located.
--------------------
Neither we nor the underwriters have taken any action that would permit us
to publicly sell these securities in any jurisdiction outside the United States.
If you are an investor outside the United States, you should inform yourself
about and comply with any restrictions as to the offering of the securities and
the distribution of this prospectus.
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TABLE OF CONTENTS
ABOUT THIS PROSPECTUS..........................................................6
WHERE YOU CAN FIND MORE INFORMATION............................................6
FORWARD-LOOKING STATEMENTS.....................................................8
STATE STREET CORPORATION.......................................................9
THE TRUSTS.....................................................................9
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES..............................10
REASON FOR TRANSACTION........................................................10
USE OF PROCEEDS...............................................................10
DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES.............................10
General.....................................................................10
Additional Interest.........................................................12
Denominations, Registration and Transfer....................................12
Payment and Paying Agents...................................................13
Option to Defer Interest Payments...........................................13
Redemption..................................................................13
Restrictions on Certain Payments............................................15
Limitation on Mergers and Sales of Assets...................................15
Events of Default, Waiver and Notice........................................16
Distribution of the Junior Subordinated Debentures..........................17
Modification of Junior Subordinated Indenture...............................17
Enforcement of Certain Rights by Holders of Capital Securities..............17
Defeasance and Discharge....................................................18
Conversion or Exchange......................................................18
Subordination...............................................................18
Governing Law...............................................................20
The Debenture Trustee.......................................................20
Corresponding Junior Subordinated Debentures................................20
DESCRIPTION OF THE CAPITAL SECURITIES.........................................21
General.....................................................................21
Distributions...............................................................21
Redemption or Exchange......................................................23
Redemption Procedures.......................................................25
Subordination of Common Securities..........................................26
Liquidation Distribution Upon Dissolution...................................26
Events of Default; Notice...................................................27
Removal of Trustees.........................................................28
Co-Trustees and Separate Property Trustee...................................28
Merger or Consolidation of Trustees.........................................28
Mergers, Consolidations, Amalgamations or Replacements of the Trusts........28
Voting Rights; Amendment of Each Trust Agreement............................29
Payment and Paying Agency .................................................31
Registrar and Transfer Agent................................................31
Information Concerning the Property Trustee.................................31
Trust Expenses..............................................................32
Governing Law...............................................................32
Miscellaneous...............................................................32
COMMON SECURITIES.............................................................32
DESCRIPTION OF THE CAPITAL SECURITIES GUARANTEES..............................32
General ....................................................................33
Status of the Guarantees....................................................34
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Amendments and Assignment...................................................34
Termination of the Guarantees...............................................34
Events of Default...........................................................34
Information Concerning the Guarantee Trustee................................35
Governing Law...............................................................35
RELATIONSHIP AMONG THE CAPITAL SECURITIES, THE CORRESPONDING JUNIOR
SUBORDINATED DEBENTURES AND THE CAPITAL SECURITIES GUARANTEES...............35
Limited Purpose of Trusts...................................................37
Rights Upon Dissolution.....................................................37
GLOBAL SECURITIES.............................................................38
General.....................................................................38
Book-Entry Issuance.........................................................39
PLAN OF DISTRIBUTION..........................................................41
VALIDITY OF SECURITIES........................................................42
EXPERTS.......................................................................42
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission, the "SEC," utilizing a "shelf" registration
process. Under this shelf process, we may from time to time sell any combination
of the debt securities or warrants described in this prospectus in one or more
offerings up to a total dollar amount of $1,000,000,000. We may also sell other
securities under the registration statement that will reduce the total dollar
amount of securities that we may sell under this prospectus. This prospectus
provides you with a general description of the debt securities or warrants we
may offer. Each time we sell debt securities or warrants, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both this prospectus
and any prospectus supplement together with the additional information described
under the heading "Where You Can Find More Information."
Unless otherwise indicated or unless the context requires otherwise, all
references in this prospectus to "STATE STREET," "WE," "US," "OUR" or similar
references mean State Street Corporation.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement under the Securities Act
of 1933 that registers, among others securities, the offer and sale of the
securities offered by this prospectus. The registration statement, including the
attached exhibits and schedules, contains additional relevant information about
us. The rules and regulations of the SEC allow us to omit certain information
included in the registration statement from this prospectus.
In addition, we file reports, proxy statements and other information with
the SEC under the Securities Exchange Act of 1934. You may read and copy this
information at the following locations of the SEC:
Public Reference Room
450 Fifth Street, N.W.
Room 1024
Washington, D.C. 20549
Northeast Regional Office
7 World Trade Center
Suite 1300
New York, New York 10048
Midwest Regional Office
500 West Madison Street
Suite 1400
Chicago, Illinois 60661-2511
You may also obtain copies of this information by mail from the Public
Reference Section of the SEC, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, at prescribed rates.
The SEC also maintains an Internet world wide web site that contains
reports, proxy statements and other information about issuers, like us, who file
electronically with the SEC. The address of that site is:
http://www.sec.gov.
You can also inspect reports, proxy statements and other information about
us at the offices of the New York Stock Exchange, 20 Broad Street, New York, New
York 10005.
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The SEC allows us to "incorporate by reference" information into this
prospectus. This means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The information
incorporated by reference is considered to be a part of this prospectus, except
for any information that is superseded by information that is included directly
in this document or in a more recent incorporated document.
This prospectus incorporates by reference the documents listed below that we
have previously filed with the SEC. They contain important information about us
and our financial condition.
SEC FILINGS PERIOD
- ----------- ------
Annual Report on Form 10-K Year Ended December 31, 1999
Quarterly Report on Form 10-Q Quarter ended March 31, 1999
Quarter ended June 30, 1999
Quarter ended September 30, 1999
Current Report on Form 8-K Filed January 7, 2000
We incorporate by reference additional documents that we may file with the
SEC between the date of this prospectus and the date we sell all of the debt
securities. These documents include periodic reports, such as Annual Reports on
Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as
well as proxy statements.
You can obtain any of the documents incorporated by reference in this
document through us, or from the SEC through the SEC's Internet world wide web
site at the address described previously. Documents incorporated by reference
are available from us without charge, excluding any exhibits to those documents,
unless the exhibit is specifically incorporated by reference as an exhibit in
this prospectus. You can obtain documents incorporated by reference in this
prospectus by requesting them in writing or by telephone from us at the
following address:
Investor Relations
State Street Corporation
225 Franklin Street
Boston, Massachusetts 02110
(617) 664-3477
We have not authorized anyone to give any information or make any
representation about us that is different from, or in addition to, the
information and representations contained in this prospectus or in any of the
materials that we have incorporated into this prospectus. If anyone does give
you information of this sort, you should not rely on it. If you are in a
jurisdiction where offers to sell, or solicitations of offers to purchase, the
securities offered by this document are unlawful, or if you are a person to whom
it is unlawful to direct these types of activities, then the offer presented in
this document does not extend to you. The information contained in this document
speaks only as of the date of this document unless the information specifically
indicates that another date applies.
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FORWARD-LOOKING STATEMENTS
This prospectus, including information included or incorporated by
reference, contains certain forward-looking statements with respect to our
financial condition, results of operations, plans, objectives, future
performance and business, including, without limitation, statements preceded by,
followed by or that include the words "believes," "expects," "anticipates,"
"estimates" or similar expressions.
These forward-looking statements involve risks and uncertainties. Actual
results may differ materially from those contemplated by the forward-looking
statements due to many factors, including:
o future revenue may increase or decrease depending upon the extent of
increases or decreases in cross-border investments made by customers or
future customers;
o changes in the savings rate of individuals that are invested in mutual funds
or in defined contribution plans affect our revenues;
o fluctuations in worldwide securities market valuations may affect our
revenues;
o changes in markets served, including the growth rate of U.S. mutual funds,
the pace of debt issuance, outsourcing decisions, and mergers, acquisitions
and consolidations among customers and competitors may affect our revenues;
o global and regional economic factors and changes or potential changes in
laws and regulations affecting our business, including volatile currencies
and changes in monetary policy, and social and political instability, could
affect results of operations;
o market interest rate levels, the shape of the yield curve and the direction
of interest rate changes affect net interest revenue and fiduciary
compensation from securities lending;
o the degree of volatility in foreign exchange rates may affect the amount of
foreign exchange trading revenue;
o the pace of pension reform and resulting programs including public and
private pension schemes may affect the pace of revenue growth;
o future prices that we are able to obtain for our products may increase or
decrease from current levels depending upon demand, our competitors'
activities and the introduction of new products into the marketplace;
o the pace at which existing and new customers use additional services and
assign additional assets to us for management or custody will affect future
results;
o changes in business mix, including the mix of U.S. and non-U.S. business,
may affect future results;
o technological change may be more difficult or expensive then anticipated;
and
o changes may occur in securities markets.
<PAGE>
STATE STREET CORPORATION
We are a bank holding company organized under the laws of the Commonwealth
of Massachusetts and a leading provider of services to institutional investors
and investment managers worldwide. We were organized in 1970 and conduct our
business principally through our subsidiary, State Street Bank and Trust
Company, "STATE STREET BANK," which traces its beginnings to the founding of
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. Our executive offices are located at 225
Franklin Street, Boston, Massachusetts 02110 (telephone (617) 786-3000).
THE TRUSTS
Each of the trusts is a statutory business trust formed under Delaware law
pursuant to a trust agreement, signed by State Street, as depositor of each
trust, and the property trustee, the Delaware trustee and the administrative
trustees (each as defined below), and the filing of a certificate of trust with
the Delaware Secretary of State. The trust agreement of each 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 the 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 trust exists for the exclusive purposes of:
o issuing the capital securities and common securities representing undivided
beneficial interests in the assets of the trust;
o investing the gross proceeds of the capital securities and the common
securities, together the "TRUST SECURITIES," in junior subordinated
debentures; and
o engaging in only those activities necessary or incidental thereto.
All of the common securities will be directly or indirectly owned by us. The
common securities of each trust will rank equally, and payments will be made pro
rata with the capital securities of that trust, except that upon an event of
default under the trust agreement, the rights of the holders of the common
securities to payment in respect of distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of the holders of
the capital securities. We will acquire common securities of each trust in an
aggregate liquidation amount equal to at least three percent of the total
capital of each trust.
Each trust's business and affairs will be conducted by its trustees, each
appointed by State Street as holder of the common securities. The trustees of
each trust will be Bank One Trust Company, N.A. (as successor in interest to The
First National Bank of Chicago), as the property trustee, the "PROPERTY
TRUSTEE," Bank One 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. Bank One Trust
Company, N.A., as property trustee, will act as sole trustee under each trust
agreement for purposes of compliance with the Trust Indenture Act. Bank One
Trust Company, N.A. 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 each trust, or the holders of a
majority in liquidation amount of the trust's capital securities if an event of
default under the trust agreement has occurred and is continuing, will be
entitled to appoint, remove or replace the property trustee and/or the Delaware
trustee for such trust. The right to vote to appoint, remove or replace the
administrative trustees is vested exclusively in the holders of the common
securities, and in no event will the holders of capital securities have such
right.
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Unless otherwise specified in the applicable prospectus supplement, each
trust has a term of approximately 55 years, but may terminated earlier as
provided in the applicable trust agreement.
State Street will pay all fees and expenses related to the trusts and the
offering of trust securities.
The principal executive office of each trust is c/o State Street Bank and
Trust Company, N.A., 61 Broadway, 15th Floor, New York, New York 10006,
telephone number (212) 612-3000.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
Our consolidated ratios of earnings to fixed charges were as follows for the
five most recent fiscal years:
Year Ended December 31,
--------------------------------
1999 1998 1997 1996 1995
---- ---- ---- ---- ----
Ratio of earnings to fixed charges ....... 2.02x 1.77x 1.93x 1.95x 1.75x
REASON FOR TRANSACTION
On October 21, 1996, the Federal Reserve Board issued a press release
announcing that it had approved the use of certain cumulative preferred stock
instruments, such as the capital securities, as "Tier 1 capital" for purposes of
the Federal Reserve Board's capital guidelines for bank holding companies.
Because State Street intends to treat the capital securities as Tier 1 capital
and, under current United States federal tax law, will receive a tax deduction
for interest in respect of the junior subordinated debentures, the issuance of
the capital securities is a cost-effective method of raising capital on an
after-tax basis.
USE OF PROCEEDS
Each trust will use the proceeds of the sale of its capital securities to
acquire junior subordinated debentures from State Street. State Street intends
to use the net proceeds from the sale of the securities for general corporate
purposes unless otherwise indicated in the prospectus supplement or term sheet
relating to a specific issue of securities. State Street's general corporate
purposes may include extending credit to, or funding investments in, our
subsidiaries. The precise amounts and the timing of State Street's use of the
net proceeds will depend upon our subsidiaries' funding requirements and the
availability of other funds. Until State Street uses the net proceeds from the
sale of any of our securities for general corporate purposes, State Street will
use the net proceeds to reduce short-term indebtedness or for temporary
investments. State Street expects that it will, on a recurrent basis, engage in
additional financings as the need arises to finance its growth, through
acquisitions or otherwise, or to fund its subsidiaries. State Street and State
Street Bank regularly investigate possible acquisitions.
DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES
We may issue junior subordinated debentures from time to time in one or more
series under a junior subordinated indenture, dated as of December 15, 1996, as
supplemented from time to time, the "JUNIOR SUBORDINATED INDENTURE," between us
and Bank One Trust Company, N.A. (as successor in interest to The First National
Bank of Chicago), as trustee, the "DEBENTURE TRUSTEE." The junior subordinated
indenture is qualified under the Trust Indenture Act, and terms of the junior
subordinated debentures will include those stated in the junior subordinated
indenture and those made part of the junior subordinated indenture by reference
to the Trust Indenture Act.
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Set forth below is a description of the general terms of the junior
subordinated debentures in which the trusts will invest the proceeds from the
issuance and sale of the trust securities. The particular terms of the junior
subordinated debentures will be described in the prospectus supplement relating
to the particular capital securities being offered. The following description is
not intended to be complete and is qualified by the indenture, the form of which
is filed as an exhibit to the registration statement which contains this
prospectus, and the Trust Indenture Act.
General
We will issue the junior subordinated debentures as unsecured debt. The
junior subordinated debentures will be fully subordinated as set forth in the
junior subordinated indenture. See "Subordination" below. Each series of junior
subordinated debentures will rank equally with all other series of junior
subordinated indentures. The junior subordinated indenture does not limit the
aggregate principal amount of junior subordinated debentures which may be issued
and provides that the junior subordinated debentures may be issued from time to
time in one or more series. Because we are a holding company, our rights and the
rights of our creditors, including the holders of the junior subordinated
debentures, to participate in the assets of any of our subsidiaries upon the
subsidiary's liquidation or reorganization will be subject to the prior claims
of the subsidiary's creditors except to the extent that we may ourselves be a
creditor with recognized claims against the subsidiary. Except as otherwise
provided in the applicable prospectus supplement, the junior subordinated
indenture does not limit the incurrence or issuance by us of other secured or
unsecured debt.
The prospectus supplement relating to the particular junior subordinated
debentures being offered will describe the terms of those securities, which may
include:
o the title of the junior subordinated debentures;
o any limit upon the aggregate principal amount of junior subordinated
debentures;
o the date or dates on which the principal of the junior subordinated
debentures is payable or the method of determination thereof;
o any fixed or variable interest rate or rates per annum;
o the place where the principal of and premium, if any, and interest on the
junior subordinated debentures will be payable and where the junior
subordinated debentures may be presented for registration of transfer or
exchange;
o any provisions for redemption, the redemption price and any remarketing
arrangements;
o the minimum denominations;
o whether the debt securities are denominated or payable in United States
dollars or a foreign currency or units of two or more foreign currencies;
o if other than the principal amount, the portion of the principal amount of
the debt securities payable upon acceleration of the maturity of the debt
securities;
o any index used to determine the amount of payment of principal of, and any
premium and interest on, the debt securities;
o any additional or different events of default that apply to any debt
securities of the series and any change in the right of the trustee or the
required holders of those debt securities to declare the principal thereof
due and payable;
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o any additional or different covenants that apply to any debt securities of
the series;
o any additions or changes to the junior subordinated indenture with respect
to such junior subordinated debentures necessary to permit the issuance of
the junior subordinated debentures in bearer form, registrable or not
registrable as to principal, and with or without interest coupons;
o the terms and conditions relating to the issuance of a temporary global
security representing all of the junior subordinated debentures and the
exchange of such temporary global security for definitive junior
subordinated debentures;
o whether the junior subordinated debentures will be issued in whole or in
part in the form of one or more global securities and the depositary for any
such global securities;
o the appointment of any paying agent or agents;
o the terms and conditions of any obligation or right of State Street or a
holder to convert or exchange the junior subordinated debentures into
capital securities; and
o any other terms of the debt securities that are not inconsistent with the
provisions of the applicable 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 a prospectus supplement specifies that the junior subordinated debentures
will be denominated in a currency or currency unit other than United States
dollars, the prospectus supplement shall also specify the denomination in which
the junior subordinated debentures will be issued and the coin or currency in
which the principal, premium, if any, and interest, if any, on the junior
subordinated debentures will be payable, which may be United States dollars
based upon the exchange rate for such other currency or currency unit existing
on or about the time a payment is due.
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
will be described in the applicable prospectus supplement.
Additional Interest
If, at any time a trust is required to pay any taxes, duties, assessments or
governmental charges of whatever nature, other than withholding taxes, imposed
by the United States, or any other taxing authority, then we will be required to
pay additional interest on the junior subordinated debentures. The amount of any
additional interest will be an amount sufficient so that the net amounts
received and retained by the trust after paying any such taxes, duties,
assessments or other governmental charges will be not less than the amounts that
the trust would have received had no such taxes, duties, assessments or other
governmental charges been imposed. This means that the trust will be in the same
position it would have been in if it did not have to pay such taxes, duties,
assessments or other charges.
Denominations, Registration and Transfer
Unless otherwise indicated in the applicable prospectus supplement, we will
issue the junior subordinated debentures in registered form only, 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 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 at the office of the
appropriate securities registrar or at the office of any transfer agent
designated by us for such purposes. No service charge will be made for any
transfer or exchange of the junior subordinated debentures. However, we or the
debenture trustee may require a holder to pay an amount sufficient to cover any
tax or other governmental charge payable in connection with a transfer or
exchange. We 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 us with respect to any series of junior subordinated
debentures, we 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 we maintain a transfer agent in each place of payment of
such series. We may at any time designate additional transfer agents with
respect to any series of junior subordinated debentures.
In the event of any redemption, neither we nor the debenture trustee will be
required to:
o 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 and ending at the close of
business on the day of mailing of notice of redemption; or
o transfer or exchange 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, we will
pay principal and any premium and interest on junior subordinated debentures
(other than those in global form) at the office of the debenture trustee in the
city of New York or at the office of any paying agent that we may designate from
time to time. However, at our option, it may pay any interest by check mailed to
the holders of registered junior subordinated debentures at their registered
addresses or by transfer to an account maintained by a holder of registered
junior subordinated debentures, as specified in the securities register. 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 the junior subordinated debentures are registered on the applicable record
date, except in the case of defaulted interest. We may at any time designate
additional paying agents or rescind the designation of any paying agent,
provided that we at all times maintain a paying agent in each place of payment
for each series of junior subordinated debentures.
Any amounts deposited with the debenture trustee or any paying agent, or
then held by us in trust, for the payment of the principal of any premium, if
any, or interest on any junior subordinated debentures and remaining unclaimed
for two years after such amounts have become due and payable shall, at our
request, be repaid to us, and the holder of the junior subordinated debenture
will be able to look only to us for payment, as a general unsecured creditor.
Option to Defer Interest Payments
If provided in the applicable prospectus supplement, we will have the right
from time to time during the term of any series of junior subordinated
debentures to defer payment of interest for up to such number of consecutive
interest payment periods as may be specified in the applicable prospectus
supplement, subject to the terms, conditions and covenants, if any, specified in
such prospectus supplement. Such deferral, however, 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.
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Redemption
Unless otherwise indicated in the applicable prospectus supplement, the
junior subordinated debentures will not be subject to any sinking fund.
Unless otherwise indicated in the applicable prospectus supplement, we may,
at our option and subject to receipt of prior approval by the Federal Reserve
(if required), 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 supplement 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 will 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, we may, at our option and subject
to receipt of prior approval by the Federal Reserve (if required), 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 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 such capital securities, there is more than an insubstantial risk that (i)
the 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 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 trust of an opinion of
counsel 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 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 trust is or will be
considered an "investment company" that is required to be registered under the
Investment Company Act of 1940, 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 our reasonable determination 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 we 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
us.
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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 we default 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
If junior subordinated debentures are issued to a trust or a trustee of a
trust in connection with the issuance of trust securities by a trust and:
o there shall have occurred and be continuing an event of default with respect
to the junior subordinated debentures of which we have actual knowledge and
which we have not taken reasonable steps to cure;
o we shall be in default relating to our payment of any obligations under the
guarantee; or
o we shall have given notice of our election to defer payments of interest on
the junior subordinated debentures by extending the interest payment period
and such period, or any extension of such period, shall be continuing;
then:
o we shall not declare or pay any dividend on, make any distributions relating
to, or redeem, purchase, acquire or make a liquidation payment relating to,
any of its capital stock or make any guarantee payment with respect thereto
other than:
(1) repurchases, redemptions or other acquisitions of shares of our capital
stock in connection with any employee benefit plans or any other
contractual obligation, other than a contractual obligation ranking
equally with or junior to the junior subordinated debentures;
(2) as a result of an exchange or conversion of any class or series of our
capital stock for any other class or series of our capital stock;
(3) the purchase of fractional interests in shares of our capital stock
pursuant to the conversion or exchange provisions of such capital stock
or the security being converted or exchanged;
(4) 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
(5) any dividend in the form of stock, warrants, options or other rights
where the dividend stock or 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 equally with or junior to such
stock; and
o we shall not make any payment of interest, principal or premium, if any, on
or repay, repurchase or redeem any debt securities issued by us that rank
equally with or junior to the junior subordinated debentures.
Limitation on Mergers and Sales of Assets
The junior subordinated indenture provides that we may not consolidate with,
or merge into, any other corporation or convey or transfer its properties and
assets substantially as an entirety unless:
o the successor entity is a corporation, partnership or trust organized in the
United States and expressly assumes our obligations under the junior
subordinated indenture;
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o after giving effect thereto, no event of default and no event which, after
notice or lapse of time, or both, would become an event of default, shall
have occurred and be continuing under the junior subordinated indenture;
o such transaction is permitted under the related trust agreement and
guarantee; and
o certain other conditions as prescribed by the junior subordinated indenture
are met.
The covenants contained in the indenture would not necessarily protect
holders of the junior subordinated debentures in the event of a decline in
credit quality resulting from takeovers, recapitalizations or similar
restructurings.
Events of Default, Waiver and Notice
The junior subordinated indenture provides that the following are events of
default relating to the junior subordinated debentures:
o default in the payment of the principal of, or premium, if any, on, any
junior subordinated debentures at maturity;
o default for 30 days in the payment of any installment of interest on any
junior subordinated debentures;
o default for 90 days after written notice in the performance of any other
covenant in respect of the junior subordinated debentures; and
o specified events of bankruptcy, insolvency or reorganization of State
Street.
If an event of default under the junior subordinated indenture shall occur
and be continuing, either the debenture trustee or the holders of not less than
25 percent in aggregate principal amount of the junior subordinated debentures
of that series then outstanding may declare the principal of all junior
subordinated debentures of that series to be due and payable immediately. If the
holders of junior subordinated debentures fail to make such declaration, the
holders of at least 25 percent in aggregate liquidation amount of the related
capital securities shall have such right.
The holders of a majority in aggregate outstanding principal amount of that
series of junior subordinated debentures may annul the declaration and waive the
default. If the holders of junior subordinated debentures fail to annul such
declaration and waive such default, the holders of at least 25 percent in
aggregate liquidation amount of the related capital securities shall have such
right.
The holders of a majority in aggregate outstanding principal amount of that
series of junior subordinated debentures may waive any default, except a default
in 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
other than by acceleration has been deposited with the debenture trustee, or a
default in respect of a covenant or provision that under the junior subordinated
indenture cannot be modified or amended without the consent of the holder of
each outstanding junior subordinated debenture. If the holders of junior
subordinated debentures fail to waive such default, the holders of a majority in
aggregate liquidation amount of the related capital securities shall have such
right.
The holders of a majority in principal amount of the junior subordinated
debentures of any series affected shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
debenture trustee under the junior subordinated indenture.
We are required to furnish to the debenture trustee annually a statement as
to the performance of our obligations under the junior subordinated indenture
and as to any default in such performance.
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If a debenture event of default shall have occurred and be continuing, the
property trustee will have the right to declare the principal of and the
interest on the corresponding junior subordinated debentures, and any other
amounts payable under the junior subordinated indenture, to be due and payable
and to enforce its other rights as a creditor with respect to the corresponding
junior subordinated debentures.
Distribution of the Junior Subordinated Debentures
Under circumstances discussed more fully in the prospectus supplement
involving the dissolution of a trust, provided that any required regulatory
approval is obtained, junior subordinated debentures will be distributed to the
holders of the trust securities in liquidation of that trust. See "Description
of the Capital Securities--Liquidation Distribution upon Dissolution."
If the junior subordinated debentures are distributed to the holders of the
capital securities, we will use our best efforts to have the junior subordinated
debentures listed on the New York Stock Exchange or on such other national
securities exchange or similar organization on which the capital securities are
then listed or quoted.
Modification of Junior Subordinated Indenture
From time to time we and the debenture trustee may, without the consent of
the holders of the junior subordinated debentures, waive or supplement the
junior subordinated indenture for specified purposes, including, among other
things:
o evidencing the succession of another person to State Street;
o conveying, transferring, assigning, mortgaging or pledging any property to
or with the debenture trustee or surrendering any right or power conferred
upon us in the junior subordinated indenture;
o adding to the covenants of State Street for the benefit of other holders of
all or any series of securities;
o adding any additional events of default for the benefit of other holders of
all or any series of securities;
o changing or eliminating any of the provisions of the junior subordinated
indenture, provided that any such change or elimination shall not apply to
any outstanding securities, or shall become effective only when there is no
security outstanding of any series created prior to the execution of the
supplemental indenture that is entitled to the benefit of such provision;
o curing ambiguities, defects or inconsistencies without materially and
adversely affecting the holders of the junior subordinated debentures or the
related capital securities;
o evidencing and providing for the acceptance of appointment under the junior
subordinated indenture by a successor trustee with respect to the securities
of one or more series and adding to or changing any of the provisions of the
indenture as shall be necessary to provide for or facilitate the
administration of the trusts under the indenture by more than one trustee;
and
o qualifying the junior subordinated indenture under the Trust Indenture Act.
We and the debenture trustee may make modifications and amendments to the
indenture with the consent of the holders of a majority in principal amount of
the junior subordinated debentures at the time outstanding. However, no
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such modification or amendment may, without the consent of the holder of each
junior subordinated debenture affected thereby:
o modify the payment terms of the junior subordinated debentures; or
o reduce the percentage of holders of junior subordinated debentures necessary
to modify or amend the indenture or waive compliance by us with any covenant
or past default.
If the junior subordinated debentures are held by a trust or a trustee of a
trust, no modification may be made that adversely affects the holders of the
related capital securities, and no termination of the junior subordinated
indenture may occur, and no waiver of any event of default or compliance with
any covenant will be effective without the prior consent of a majority in
liquidation preference of trust securities of that trust. If the consent of the
holder of each outstanding junior subordinated debenture is required, no
modification shall be effective without the prior consent of each holder of
related capital securities.
In addition, we 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 indentures.
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 of
default is the result of our failure to pay interest or principal on the
corresponding junior subordinated debentures when due, a holder of related
capital securities may institute a legal proceeding directly against us 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. We may not
amend the junior subordinated indenture to remove this right without the prior
written consent of the holders of all of the capital securities outstanding. If
such right is removed, the applicable trust may become subject to reporting
obligations under the Exchange Act. We will have the right under the junior
subordinated indenture to set off any payment made by us to such holder of
capital securities in connection with any such 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 unless there
shall have been an event of default under the applicable trust agreement. Please
see "Description of Capital Securities--Events of Default; Notice."
Defeasance and Discharge
The junior subordinated indenture provides that when:
(1) all junior subordinated debentures not previously delivered to the
debenture trustee for cancellation have become due and payable or will
become due and payable at their stated maturity within one year,
(2) we deposit with the debenture trustee, in trust, funds sufficient to
pay all the principal of, and interest and premium, if any, on the
junior subordinated debentures when such payments are due,
(3) we have paid all other sums payable under the indenture by us, and
(4) we have delivered to the debenture trustee an officers' certificate and
an opinion of counsel each stating that all conditions precedent in the
indenture relating to the satisfaction and discharge of the indenture
have been complied with
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then the junior subordinated indenture will cease to be of further effect
(except as to our obligations to pay all other sums due under the junior
subordinated indenture and to provide the officers' certificates and opinions of
counsel described therein), and we will be deemed to have satisfied and
discharged the junior subordinated indenture.
Conversion or Exchange
The junior subordinated debentures may be convertible or exchangeable into
junior subordinated debentures of another series or into capital securities of
another series, on the terms provided in the applicable prospectus supplement.
Such terms may include provisions for conversion or exchange, either mandatory,
at the option of the holder, or at our option, 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
The junior subordinated indenture contains a covenant by us that any junior
subordinated debentures issued thereunder will be subordinate and junior in
right of payment to all senior debt (as defined below) to the extent provided
therein. If we make any payment or distribution of our assets 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, the holders of senior debt will first be entitled to
receive payment in full of principal of and premium 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 and interest, if any, on the junior subordinated debentures. However,
holders of senior debt will not be entitled to receive payment of any such
amounts if the subordination provisions of such senior debt would require
holders to pay such amounts over to the obligees on trade accounts payable or
other liabilities arising in the ordinary course of our 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, before the holders of
the junior subordinated debentures will be entitled to receive or retain any
payment in respect of the principal of or premium or interest, if any, on the
junior subordinated debentures. However, the holders of senior debt will not be
entitled to receive payment of any such amounts if the subordination provisions
of such senior debt would require holders 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 are 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:
o every obligation of such person for money borrowed;
o 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;
o every reimbursement obligation of such person with respect to letters of
credit, bankers' acceptances or similar facilities issued for the account of
such person;
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o every obligation of such person issued or assumed as the deferred purchase
price of property or services other than trade accounts payable or accrued
liabilities arising in the ordinary course of business;
o every capital lease obligation of such person;
o 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
o every obligation of the type referred to above 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.
"SENIOR DEBT" means the principal of and premium and interest, if any,
including interest accruing on or after the filing of any petition in bankruptcy
or for reorganization relating to us 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 that is equal or
subordinated to the junior subordinated debentures, other than:
o 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;
o any debt of State Street to any of its subsidiaries;
o any debt to any of our employees;
o any 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
o 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 we may incur. We expect from time to time to incur additional
indebtedness and other obligations constituting senior debt.
The junior subordinated indenture provides that any of the subordination
provisions described above that 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 and the junior subordinated debentures
will be governed by, and construed in accordance with, the internal laws of the
State of New York.
The Debenture Trustee
The debenture trustee will have all of the duties and responsibilities
specified under the Trust Indenture Act. Subject to those 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
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reasonable indemnity by such holder against the costs, expenses and liabilities
that 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 it.
Corresponding Junior Subordinated Debentures
State Street may issue 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, the "CORRESPONDING JUNIOR SUBORDINATED
DEBENTURES." In each such instance, concurrently with the issuance of each
trust's capital securities, the trust will invest the proceeds thereof and the
consideration paid by us for the common securities in the series of
corresponding junior subordinated debentures issued by us to such trust. Each
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 the trust and will rank equally 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 Junior Subordinated Indenture," "-- Debenture Events of
Default" and "Enforcement of Certain Rights by Holders of Capital Securities."
Unless otherwise specified in the applicable prospectus supplement, if a tax
event relating to a trust shall occur and be continuing, we may, at our option
and subject to prior approval of the Federal Reserve (if required), 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 redeemable at our option.
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 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 trust to redeem the
corresponding trust securities in accordance with their terms. We 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 date of redemption.
We will covenant, as to each series of corresponding junior subordinated
debentures:
o to directly or indirectly maintain 100% ownership of the common securities
of the trust unless a permitted successor succeeds to ownership of the
common securities
o not to voluntarily terminate, wind up or liquidate any trust, except, if so
specified in the applicable prospectus supplement and upon prior approval of
the Federal Reserve (if required):
o in connection with a distribution of corresponding junior subordinated
debentures to the holders of the capital securities in exchange therefor
upon liquidation of the trust, or
o 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
o to use its reasonable efforts, consistent with the terms and provisions of
the related trust agreement, to cause such trust to remain classified as a
grantor trust and not as an association taxable as a corporation for United
States federal income tax purposes.
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DESCRIPTION OF THE CAPITAL SECURITIES
The capital securities will be issued pursuant to the terms of an amended
and restated trust agreement. The trust agreement will be qualified as an
indenture under the Trust Indenture Act. The property trustee, Bank One Trust
Company, N.A., will act as trustee for the capital securities under the trust
agreement for purposes of compliance with the provisions of the Trust Indenture
Act. The terms of the capital securities will include those stated in the trust
agreement and those made part of the trust agreement by the Trust Indenture Act.
Set forth below is a summary of the material terms and provisions of the
capital securities. This summary, which describes the material provisions of the
capital securities, is not intended to be complete and is qualified by the trust
agreement, the form of which is filed as an exhibit to the registration
statement which contains this prospectus supplement, the Delaware Business Trust
Act and the Trust Indenture Act.
General
The declaration authorizes the trustees to issue the trust securities on
behalf of the trust. The trust securities represent undivided beneficial
interests in the assets of the trust. We will own, directly or indirectly, all
of the common securities. The common securities rank equally, and payments will
be made on a pro rata basis, with the capital securities. However, if an event
of default under a trusts's trust agreement occurs and is continuing, the rights
of the holders of the common securities to receive payments will be subordinated
to the rights of the holders of the capital securities.
The trust agreement does not permit the trust to issue any securities other
than the trust securities or to incur any indebtedness. Under the trust
agreement, the property trustee will own the junior subordinated debentures
purchased by the trust for the benefit of the holders of the trust securities.
Each guarantee agreement executed by us for the benefit of the holders of a
trust's trust securities, each 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 trust does not have funds
on hand available to make such payments. Please see "Descriptions of
Guarantees."
Distributions
Distributions on the capital securities:
o will be cumulative;
o will accumulate from the date of original issuance; and
o 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, then payment of the distribution will be made
on the next succeeding 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
calendar year, payment of the distribution will be made on the immediately
preceding business day. Each date on which distributions are payable in
accordance with the foregoing is referred to as a "DISTRIBUTION DATE." The term
"DISTRIBUTION" includes any interest payable on unpaid distributions unless
otherwise stated.
The amount of distributions payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. The amount of distributions
payable for any period shorter than a full quarterly period will be computed on
the basis of the actual number of days elapsed per 30-day month. Distributions
to which holders of
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capital securities are entitled will accumulate additional distributions at the
rate per annum if and as specified in the applicable prospectus supplement.
If provided in the applicable prospectus supplement, we have the right under
the junior subordinated indenture, pursuant to which we will issue the
corresponding junior subordinated debentures, to defer the payment of interest
on any series of the corresponding junior subordinated debentures for up to a
number of consecutive interest payment periods that will be specified in the
prospectus supplement relating to such series, 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 at the rate per annum set forth in the prospectus supplement for
such capital securities, by the trust during any extension period. If we
exercise our deferral right, then during any extension period, we may not:
o make any payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem any debt securities that rank equally in all
respects with or junior in interest to the junior subordinated debentures of
such series; or
o declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any shares of our
capital stock, other than:
o repurchases, redemptions or other acquisitions of shares of our
capital stock 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 our capital stock, or securities convertible into or exercisable
for such capital stock, as consideration in an acquisition transaction
entered into prior to the applicable extension period,
o as a result of an exchange or conversion of any class or series of our
capital stock or any capital stock of our subsidiaries, for any class or
series of our capital stock, or of any class or series of our indebtedness
for any class or series of our capital stock,
o the purchase of fractional interests in shares of our capital stock
pursuant to the conversion or exchange provisions of such capital stock or
the securities being converted or exchanged,
o 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
o 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 equally with or junior to such stock.
The revenue of each trust available for distribution to holders of its
capital securities will be limited to payments under the corresponding junior
subordinated debentures in which the trust will invest the proceeds from the
issuance and sale of its trust securities. Please see "Description of Junior
Subordinated Debentures--Corresponding Junior Subordinated Debentures." If we do
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 trust has funds legally available for the payment of such distributions and
cash sufficient to make such payments, is guaranteed by us on the basis set
forth under "Description of Guarantees."
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Distributions on the capital securities will be payable to the holders
thereof as they appear on the register of such 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 date of distribution. 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 date of distribution, 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 property trustee shall
apply the proceeds from such repayment or redemption to redeem a like amount (as
defined below) of the trust 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 to the date of redemption, the "REDEMPTION DATE," and the
related amount of the premium, if any, paid by us upon the concurrent redemption
of such corresponding junior subordinated debentures. Please 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 will be
allocated pro rata to the redemption of the related capital securities and the
common securities. The amount of premium, if any, paid by us 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 pro
rata to the redemption of the related capital securities and the common
securities.
We will have the right to redeem any series of corresponding junior
subordinated debentures:
o 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
o at any time, in whole, but not in part, upon the occurrence of a tax event,
investment company event or capital treatment event, in any case subject to
receipt of prior approval by the Federal Reserve (if required). Please see
"Description of Junior Subordinated Debentures--Redemption."
Within 90 days of the occurrence of any 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, we will 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. 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 we do 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 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 trust as described below, such capital securities will remain
outstanding.
"LIKE AMOUNT" means:
o 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
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o 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 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
We will have the right at any time to liquidate any trust and cause the
junior subordinated debentures to be distributed to the holders of the trust
securities. This may require the prior approval of the Federal Reserve Board. If
the corresponding junior subordinated debentures are distributed to the holders
of the capital securities, we have the right at any time to dissolve any trust
and, after satisfaction of the liabilities of creditors of such trust as
provided by applicable law, cause such corresponding junior subordinated
debentures in respect of the related capital securities and common securities
issued by such trust to be distributed to the holders of such related capital
securities and common securities in exchange therefor upon liquidation of such
trust.
After the liquidation date fixed for any distribution of corresponding
junior subordinated debentures for any series of capital securities:
o such series of capital securities will no longer be deemed to be
outstanding;
o 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
o 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.
We cannot assure you 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 a 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 a trust, may trade at a discount
to the price that the investor paid to purchase the capital securities.
Redemption Procedures
Capital securities redeemed on each redemption date will 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 trust has funds on
hand available for the payment of such redemption price. See also "--
Subordination of Common Securities."
If a trust gives a notice of redemption 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. Please see "Book-Entry Issuance." If such capital
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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 will 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:
o all rights of the holders of such capital securities 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
o 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 will be made on the next
succeeding 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 trust or by us 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 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), we or our 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 will be made to the applicable recordholders 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. However, if any capital securities are not in book-entry
form, the relevant record date for such capital securities will 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 a
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 property trustee will
select the particular capital securities to be redeemed on a pro rata basis not
more than 60 days prior to the redemption date from the outstanding capital
securities not previously called for redemption, using any method that the
property trustee deems fair and appropriate, including the selection for
redemption of portions of the liquidation amount of capital securities in the
minimum amounts that are 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 the liquidation amount 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 the registered address of each holder of
trust securities to be redeemed.
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Subordination of Common Securities
Payment of distributions on, and the redemption price of, each 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. If, however, 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 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 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 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 trust's capital
securities then due and payable.
In the case of any event of default under the applicable trust agreement
resulting from a debenture event of default, we as holder of such 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 the
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 on our behalf, 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 trust shall automatically dissolve
upon expiration of its term and shall dissolve on the first to occur of:
o certain events of bankruptcy, dissolution or liquidation of State Street;
o the distribution of a like amount of the corresponding junior subordinated
debentures to the holders of its trust securities, if we, as depositor, have
given written direction to the property trustee to dissolve such trust,
subject to our having received prior approval of the Federal Reserve, if
required;
o redemption of all of the trust's capital securities as described under
"--Redemption or Exchange-- Mandatory Redemption;" and
o the entry of an order for the dissolution of the trust by a court of
competent jurisdiction.
If an early dissolution occurs as described above, the trustees will
liquidate the trust as expeditiously as possible by distributing, after
satisfaction of liabilities to creditors of such trust as provided by applicable
law, to the holders of such trust securities a like amount of the corresponding
junior subordinated debentures. If the property trustee determines that such
distribution is not practical, then the holders will be entitled to receive out
of the assets of the trust available for distribution to holders, after
satisfaction of liabilities to creditors of such 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 to the date
of payment, the "LIQUIDATION DISTRIBUTION." If the trust has insufficient assets
available to pay in full the aggregate liquidation distribution, then the
amounts payable directly by such trust on its capital securities shall be paid
on a pro rata basis. The holder(s) of such 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.
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Events of Default; Notice
Any one of the following events constitutes an event of default under the
trust agreement of a trust, a "TRUST EVENT OF DEFAULT," regardless of 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:
o the occurrence of a debenture event of default with respect to the
corresponding junior subordinated debentures held by such trust, a
"DEBENTURE EVENT OF DEFAULT" (please see "Description of Junior Subordinated
Debentures--Debenture Events of Default"); or
o the default by the property trustee in the payment of any distribution on
any trust security of such trust when such becomes due and payable, and
continuation of such default for a period of 30 days; or
o the default by the property trustee in the payment of any redemption price
of any trust security of such trust when such becomes due and payable; or
o the default in the performance, or breach, in any material respect, of any
covenant or warranty of the 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 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 trustee or trustees by the holders of at least 25%
in aggregate liquidation amount of the outstanding capital securities of the
applicable 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
o the occurrence of certain events of bankruptcy or insolvency with respect to
the property trustee and our failure to appoint a successor property trustee
within 90 days.
Within the 90 days after the occurrence of any event of default actually
known to the property trustee, the property trustee will transmit notice of such
event of default to the holders of such trust's capital securities, the
administrative trustees and to us, as depositor, unless such event of default
shall have been cured or waived. We, as depositor, and the administrative
trustees are required to file annually with the property trustee a certificate
as to whether or not we or they are in compliance with all the conditions and
covenants applicable to us and to them under each trust agreement.
If a debenture event of default with respect to the corresponding junior
subordinated debentures held by a trust has occurred and is continuing, the
capital securities of such trust shall have a preference over such 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.
Removal of Trustees
Unless a debenture event of default shall have occurred and be continuing,
any 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 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 us, as the holder of the common securities. No resignation or removal of a
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.
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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, we, 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 applicable trust agreement. If 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 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 Trusts
A 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 us or any other person, except as described below or as otherwise
described in the trust agreement. A trust may, at our request, 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 if:
o such successor entity either:
(1) expressly assumes all of the obligations of such trust with respect to
the capital securities, or
(2) 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;
o we expressly appoint 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;
o 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;
o 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;
o 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;
o such successor entity has a purpose substantially identical to that of the
trust;
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o prior to such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, we have received an opinion from independent counsel to
the trust experienced in such matters to the effect that:
(1) 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
(2) following such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, neither the 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
o we 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, a trust may 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 trust or the successor entity to be classified
as other than a grantor trust for United States federal income tax purposes.
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.
We and the administrative trustees may amend each trust agreement without
the consent of the holders of the capital securities, unless such amendment will
materially and adversely affect the interests of any holder of capital
securities:
o 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 may not be inconsistent with the other provisions of
such trust agreement; or
o to modify, eliminate or add to any provisions of such trust agreement to
such extent as shall be necessary to ensure that the 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
Trust will not be required to register as an "investment company" under the
Investment Company Act.
Any such amendments will become effective when notice thereof is given to the
holders of trust securities.
We, the administrative trustees and the property trustee may amend each
trust agreement with:
o the consent of holders representing not less than a majority (based upon
liquidation amounts) of the outstanding trust securities; and
o receipt by the trustees of an opinion of counsel to the effect that such
amendment or the exercise of any power granted to the trustees in accordance
with such amendment will not affect the trust's status as a grantor trust
for United States federal income tax purposes or the trust's exemption from
status as an "investment company" under the Investment Company Act.
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Without the consent of each holder of trust securities, the trust agreement
may not be amended to:
o change the amount or timing of any distribution required to be made in
respect of the trust securities as of a specified dates; or
o 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 the property trustee holds any corresponding junior subordinated
debentures, the trustees may not, without obtaining the prior approval of the
holders of a majority in aggregate liquidation amount of all outstanding capital
securities:
o 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;
o waive any past default that is waivable under the junior subordinated
indenture;
o exercise any right to rescind or annul a declaration that the principal of
all the corresponding junior subordinated debentures is due and payable; or
o consent to any amendment, modification or termination of the junior
subordinated indenture or such corresponding junior subordinated debentures,
where such consent shall be required.
If a consent under the junior subordinated indenture would require the
consent of each holder of corresponding junior subordinated debentures affected
thereby, no such consent may be given by the property trustee without the prior
consent of each holder of the corresponding capital securities. The trustees may
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 will 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 trustees will obtain an opinion of counsel experienced in such matters to
the effect that such action would not cause the trust to be classified as other
than a grantor trust for United States federal income tax purposes.
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
a 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 us or our affiliates or the trustees or any of
their affiliates, shall, for purposes of such vote or consent, be treated as if
they were not outstanding.
Payment and Paying Agency
Payments on the capital securities shall be made to the depositary, which
shall credit the relevant accounts at the depositary on the applicable
distribution dates. If any trust's capital securities are not held by the
depositary, such payments shall be made by check mailed to the address of the
holder as such address shall appear on the register.
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Unless otherwise specified in the applicable prospectus supplement, the
paying agent shall initially be the property trustee and any co-paying agent
chosen by the property trustee and acceptable to us and to the administrative
trustees. The paying agent shall be permitted to resign as paying agent upon 30
days' written notice to us and to the property trustee. In the event that the
property trustee shall no longer be the paying agent, the administrative
trustees will appoint a successor, which will be a bank or trust company
acceptable to the administrative trustees and to us, 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 trust, but upon payment of any tax or other
governmental charges that may be imposed in connection with any transfer or
exchange. The 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 the duties that are specifically
set forth in each trust agreement. After an event of default, the property
trustee must exercise the same degree of care and skill as a prudent individual
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 offered indemnity satisfactory to it by such
holder against the costs, expenses and liabilities that might be incurred. 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 capital securities are entitled under such trust agreement to
vote, then the property trustee will take any action that we direct. If we do
not provide direction, the property trustee may take any action that 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 wilful
misconduct.
Trust Expenses
Pursuant to the trust agreement of each trust, we, as depositor, agree to
pay:
o all debts and other obligations of each trust (other than with respect to
the capital securities);
o all costs and expenses of each trust (including costs and expenses relating
to the organization of each trust, the fees and expenses of the trustees and
the cost and expenses relating to the operation of each trust); and
o any and all taxes and costs and expenses with respect thereto (other than
United States withholding taxes) to which each trust might become subject.
Governing Law
Each trust agreement will be governed by and construed in accordance with
the laws of Delaware.
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Miscellaneous
The administrative trustees are authorized and directed to conduct the
affairs of and to operate the trusts in such a way that no trust will be
required to register as an "investment company" under the Investment Company Act
or characterized as other than a grantor trust for United States federal income
tax purposes. The administrative trustees are authorized and directed to conduct
their affairs 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, we and the administrative trustees are authorized
to take any action, not inconsistent with applicable law, the certificate of
trust of each trust or each trust agreement, that we and the administrative
trustees determine to be necessary or desirable to achieve such end, as long as
such action does not materially and adversely affect the interests of the
holders of the related capital securities.
Holders of the capital securities have no preemptive or similar rights.
No trust may borrow money or issue debt or mortgage or pledge any of its
assets.
COMMON SECURITIES
In connection with the issuance of capital securities, each trust will issue
one series of common securities having the terms, including distributions,
redemption, voting and liquidation rights, set forth in the applicable
prospectus supplement. Except for voting rights, the terms of the common
securities will be substantially identical to the terms of the capital
securities. The common securities will rank equally, and payments will be made
on the common securities pro rata, with the capital securities, except that,
upon an event of default, the rights of the holders of the common securities to
payment in respect of distributions and payments upon liquidation, redemption
and otherwise will be subordinated to the rights of the holders of the capital
securities. Except in limited circumstances, the common securities of a trust
carry the right to vote to appoint, remove or replace any of the trustees of
that trust. We will own, directly or indirectly, all of the common securities of
each trust.
DESCRIPTION OF THE CAPITAL SECURITIES GUARANTEES
Set forth below is a summary of information concerning the capital
securities guarantees that we will execute and deliver for the benefit of the
holders of capital securities. Each capital securities guarantee will be
qualified as an indenture under the Trust Indenture Act. Bank One Trust Company,
N.A. will act as the guarantee trustee for purposes of the Trust Indenture Act.
The terms of each capital securities guarantee will be those set forth in the
capital securities guarantee and those made part of the capital securities
guarantee by the Trust Indenture Act. The summary of the material terms of the
capital securities guarantees is not intended to be complete and is qualified in
all respects by the provisions of the form of capital securities guarantee which
is filed as an exhibit to the registration statement which contains this
prospectus, and the Trust Indenture Act. The guarantee trustee will hold each
capital securities guarantee for the benefit of the holders of the capital
securities of the applicable trust.
General
Pursuant to and to the extent set forth in the capital securities guarantee,
we will irrevocably and unconditionally agree to pay in full to the holders of
the trust securities, except to the extent paid by the trust, as and when due,
regardless of any defense, right of set-off or counterclaim which the trust may
have or assert, the following payments, which are referred to as "GUARANTEE
PAYMENTS," without duplication:
o any accrued and unpaid distributions that are required to be paid on the
capital securities, to the extent the trust has funds available for
distributions;
o the redemption price, plus all accrued and unpaid distributions, to the
extent the trust has funds available for redemptions, relating to any
capital securities called for redemption by the trust; and
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o upon a voluntary or involuntary dissolution, winding-up or termination of
the trust, other than in connection with the distribution of junior
subordinated debentures to the holders of capital securities or the
redemption of all of the capital securities, the lesser of:
(1) the aggregate of the liquidation amount and all accrued and unpaid
distributions on the capital securities to the date of payment; and
(2) the amount of assets of the trust remaining for distribution to holders
of the capital securities in liquidation of the trust.
The redemption price and liquidation amount will be fixed at the time the
capital securities are issued.
Our obligation to make a guarantee payment may be satisfied by direct
payment of the required amounts to the holders of capital securities or by
causing the trust to pay such amounts to such holders.
The capital securities guarantees will not apply to any payment of
distributions except to the extent a trust shall have funds available for such
payments. If we do not make interest payments on the junior subordinated
debentures purchased by a trust, the trust will not pay distributions on the
capital securities and will not have funds available for such payments. Please
see "--Status of the Guarantees." Because we are a holding company, our rights
to participate in the assets of any of our subsidiaries upon the subsidiary's
liquidation or reorganization will be subject to the prior claims of the
subsidiary's creditors except to the extent that we may ourselves be a creditor
with recognized claims against the subsidiary. Except as otherwise provided in
the applicable prospectus supplement, the capital securities guarantees do not
limit the incurrence or issuance by us of other secured or unsecured debt.
The capital securities guarantees, when taken together with our obligations
under the junior subordinated debentures, the indentures and the trust
agreements, including our obligations to pay costs, expenses, debts and
liabilities of the trusts, other than those relating to trust securities, will
provide a full and unconditional guarantee on a subordinated basis of payments
due on the capital securities.
We have also agreed separately to irrevocably and unconditionally guarantee
the obligations of the trusts with respect to the common securities to the same
extent as the capital securities guarantees, except that upon an event of
default under the indenture, holders of capital securities shall have priority
over holders of common securities with respect to distributions and payments on
liquidation, redemption or otherwise.
Status of the Guarantees
Each capital security guarantee will be unsecured and will rank:
o subordinate and junior in right of payment to all our other liabilities in
the same manner as the junior subordinated indentures; and
o equally with all other capital security guarantees that we issue.
Each capital securities guarantee will constitute a guarantee of payment and
not of collection. This means that the guaranteed party may sue the guarantor to
enforce its rights under the guarantee without suing any other person or entity.
Each guarantee will be held for the benefit of the holders of the related trust
securities. Each capital trust guarantee will be discharged only by payment of
the guarantee payments in full to the extent not paid by the trust or upon the
junior subordinated debentures.
Amendments and Assignment
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The capital securities guarantee may be amended only with the prior approval
of the holders of not less than a majority in aggregate liquidation amount of
the outstanding capital securities. No vote will be required, however, for any
changes that do not adversely affect the rights of holders of capital
securities. All guarantees and agreements contained in the capital securities
guarantee will bind our successors, assignees, receivers, trustees and
representatives and will be for the benefit of the holders of the capital
securities then outstanding.
Termination of the Guarantees
Each capital securities guarantee will terminate upon full payment of the
redemption price of all capital securities, upon distribution of the junior
subordinated debentures to the holders of the trust securities or upon full
payment of the amounts payable in accordance with the trust agreement upon
liquidation of such trust. Each capital securities guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any holder
of capital securities must restore payment of any sums paid under the capital
securities or the capital securities guarantee.
Events of Default
An event of default under a capital securities guarantee will occur if we
fail to perform any payment or other obligations under the capital securities
guarantee.
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 the capital
securities guarantee or to direct the exercise of any trust or power conferred
upon the guarantee trustee under the capital securities guarantee. Any holder of
capital securities may institute a legal proceeding directly against us to
enforce the guarantee trustee's rights and our obligations under the capital
securities guarantee, without first instituting a legal proceeding against the
relevant trust, the guarantee trustee or any other person or entity.
As guarantor, we are required to file annually with the guarantee trustee a
certificate as to whether or not we are in compliance with all applicable
conditions and covenants applicable under the capital securities guarantee.
Information Concerning the Guarantee Trustee
Prior to the occurrence of a default relating to a capital securities
guarantee, the guarantee trustee is required to perform only the duties that are
specifically set forth in the capital securities guarantee. Following the
occurrence of a default, the guarantee trustee will exercise the same degree of
care as a prudent individual would exercise in the conduct of his or her own
affairs. Provided that the foregoing requirements have been met, the guarantee
trustee is under no obligation to exercise any of the powers vested in it by a
capital securities guarantee at the request of any holder of capital securities,
unless offered indemnity satisfactory to it against the costs, expenses and
liabilities which might be incurred thereby.
We and our affiliates maintain certain accounts and other banking
relationships with the guarantee trustee and its affiliates in the ordinary
course of business.
Governing Law
The capital securities guarantees will be governed by and construed in
accordance with the internal laws of the state of New York.
RELATIONSHIP AMONG THE CAPITAL SECURITIES, THE CORRESPONDING JUNIOR
SUBORDINATED DEBENTURES AND THE CAPITAL SECURITIES GUARANTEES
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As set forth in the trust agreements, the sole purpose of the trusts is to
issue the trust securities and to invest the proceeds in the junior subordinated
debentures.
As long as payments of interest and other payments are made when due on the
junior subordinated debentures, those payments will be sufficient to cover the
distributions and payments due on the trust securities. This is due to the
following factors:
o the aggregate principal amount of junior subordinated debentures will be
equal to the sum of the aggregate stated liquidation amount of the trust
securities;
o the interest rate and the interest and other payment dates on the junior
subordinated debentures will match the distribution rate and distribution
and other payment dates for the trust securities;
o under the junior subordinated indenture, we will pay, and the trusts will
not be obligated to pay, directly or indirectly, all costs, expenses, debts
and obligations of the trusts, other than those relating to the trust
securities; and
o the trust agreements further provide that the trustees may not cause or
permit the trusts to engage in any activity that is not consistent with the
purposes of the trusts.
To the extent that funds are available, we guarantee payments of
distributions and other payments due on the capital securities to the extent
described in this prospectus. If we do not make interest payments on the junior
subordinated debentures, the trust will not have sufficient funds to pay
distributions on the capital securities. Each capital securities guarantee is a
subordinated guarantee in relation to the capital securities. The capital
securities guarantee does not apply to any payment of distributions unless and
until the trust has sufficient funds for the payment of such distributions.
Please see "Description of the Capital Securities Guarantees."
We have the right to set off any payment that we are otherwise required to
make under the junior subordinated indenture with any payment that we have
previously made or are concurrently on the date of such payment making under a
related guarantee.
The capital securities guarantees cover the payment of distributions and
other payments on the capital securities only if and to the extent that we have
made a payment of interest or principal or other payments on the junior
subordinated debentures. The capital securities guarantees, when taken together
with our obligations under the junior subordinated debentures and the indenture
and our obligations under the trust agreement, will provide a full and
unconditional guarantee of distributions, redemption payments and liquidation
payments on the capital securities.
If we fail to make interest or other payments on the junior subordinated
debentures when due, taking account of any extension period, the trust
agreements allow the holders of the capital securities to direct the property
trustee to enforce its rights under the junior subordinated debentures. If the
property trustee fails to enforce these rights, any holder of capital securities
may directly sue us to enforce such rights without first suing the property
trustee or any other person or entity. Please see "Description of the Capital
Securities--Book Entry Issuance" and "--Voting Rights."
A holder of capital securities may institute a direct action if a trust
agreement event of default has occurred and is continuing and such event is
attributable to our failure to pay interest or principal on the junior
subordinated debentures when due. A direct action may be brought without first
(1) directing the property trustee to enforce the terms of the junior
subordinated debentures or (2) suing us to enforce the property trustee's rights
under the junior subordinated debentures. In connection with such direct action,
we will be subrogated to the rights of such holder of capital securities under
the trust agreement to the extent of any payment made by us to such holder of
capital securities. Consequently, we will be entitled to payment of amounts that
a holder of capital securities receives in
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respect of an unpaid distribution to the extent that such holder receives or has
already received full payment relating to such unpaid distribution from a trust.
We acknowledge that the guarantee trustee will enforce the capital
securities guarantees on behalf of the holders of the capital securities. If we
fail to make payments under the capital securities guarantees, the holders of
the capital securities may direct the guarantee trustee to enforce its rights
thereunder. If the guarantee trustee fails to enforce the capital securities
guarantees, any holder of capital securities may directly sue us to enforce the
guarantee trustee's rights under the capital securities guarantees. Such holder
need not first sue the trust, the guarantee trustee, or any other person or
entity. A holder of capital securities may also directly sue us to enforce such
holder's right to receive payment under the capital securities guarantees. Such
holder need not first (1) direct the guarantee trustee to enforce the terms of
the capital securities guarantee or (2) sue the trust or any other person or
entity.
A default or event of default under any of our senior debt 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,
our senior debt, 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.
We and the trusts believe that the above mechanisms and obligations, taken
together, are equivalent to a full and unconditional guarantee by us of payments
due on the capital securities. Please see "Description of the Capital Securities
Guarantees--General."
Limited Purpose of Trusts
Each trust's capital securities evidence a beneficial interest in such
trust, and each trust exists for the sole purpose of issuing its capital
securities and common securities and investing the proceeds 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 us 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 trust (or from us
under the applicable guarantee) if and to the extent such 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 trust involving the liquidation of the corresponding junior subordinated
debentures, after satisfaction of liabilities to creditors of the trust, the
holders of the related capital securities will be entitled to receive, out of
the assets held by such trust, the liquidation distribution in cash. Please 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 of
our stockholders receive distributions. Since we are the guarantor under each
guarantee and have agreed to pay for all costs, expenses and liabilities of each
trust, other than the trusts' 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 our stockholders in the event of liquidation or bankruptcy are expected
to be substantially the same.
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GLOBAL SECURITIES
General
The capital securities may be issued in whole or in part in the form of one
or more fully registered global offered securities, each a "GLOBAL SECURITY,"
that will be deposited with, or on behalf of, a 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 capital
securities will be described in the applicable prospectus supplement. We
anticipate 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 aggregate liquidation amounts, of the capital securities
represented by such global security to the accounts of persons that have
accounts with such depository, each such person a "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
capital securities or by us if we have offered and sold such capital securities
directly. Ownership of beneficial interests in a global security will be limited
to participants or persons that may hold interest through participants.
Ownership of a 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 capital securities
represented by such global security for all purposes under the applicable trust
agreement. Except as set forth below, owners of beneficial interests in a global
security will not be entitled to have capital 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 trust agreement. 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. We understand
that under existing industry practices, if we request 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
capital 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 capital securities. None of
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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.
We expect 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. We also expect 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.
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 trust within 90 days, the 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 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 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 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 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,
including the junior subordinated debentures, unless otherwise referred to in
the prospectus supplement. The capital 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 trust, representing in the aggregate the total
number of such trust's capital securities 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. The rules applicable to DTC and its
participants are on file with the Commission.
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Purchases of capital securities within the DTC system must be made by or
through direct participants, which will receive a credit for the capital
securities on DTC's records. The ownership interest of each actual purchaser of
each capital security, each a "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 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, except in the event that use of the book-entry
system for the capital securities of such trust is discontinued.
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 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 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 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; DTC's records reflect only the identity of the direct participants
to whose accounts such capital 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. If less than all of a trust's capital 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 is limited to the
holders of record of the capital securities in those instances in which a vote
is required, neither DTC nor Cede & Co. will itself consent or vote with respect
to the capital securities. Under its usual procedures, DTC would mail an 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
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participants to whose accounts such capital securities are credited on the
record date (identified in a listing attached to the omnibus proxy).
Distribution payments on the capital securities will be made by the relevant
trustee to DTC. DTC's practice is to credit direct participants' accounts on the
relevant 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
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 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 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 an event of default, the holders of a majority in
liquidation preference of capital securities may determine to discontinue the
system of book-entry transfers through DTC. In any event, definitive
certificates for such capital 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 we and the trusts believe to be accurate,
but we and the trusts assume no responsibility for the accuracy thereof. Neither
we nor the trusts have any responsibility for the performance by DTC or its
participants of their respective obligations or under the rules and procedures
governing their respective operations.
PLAN OF DISTRIBUTION
We and the trusts may sell securities:
o to the public through a group of underwriters managed or co-managed by, one
or more underwriters, which may be affiliates;
o through one or more agents, which may be affiliates; or directly to
purchasers.
The distribution of the securities may be effected from time to time in one
or more transactions:
o at a fixed price, or prices, which may be changed from time to time;
o at market prices prevailing at the time of sale;
o at prices related to such prevailing market prices; or
o at negotiated prices.
Each prospectus supplement will describe the method of distribution of the
securities and any applicable restrictions.
The prospectus supplement with respect to the securities of a particular
series will describe the terms of the offering of the securities, including the
following:
o the name of the agent or the name or names of any underwriters;
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o the public offering or purchase price;
o any discounts and commissions to be allowed or paid to the agent or
underwriters;
o all other items constituting underwriting compensation;
o any discounts and commissions to be allowed or paid to dealers; and
o any exchanges on which the securities will be listed.
Any trust, in connection with its offering of capital securities, 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 the trust grants an over-allotment option, the terms
of this over-allotment option will be set forth in the prospectus supplement for
the capital securities.
Only the agents or underwriters named in the prospectus supplement are
agents or underwriters in connection with the securities being offered.
We may agree to enter into an agreement to indemnify the agents and the
several underwriters against certain civil liabilities, including liabilities
under the Securities Act or to contribute to payments the agents or the
underwriters may be required to make.
If so indicated in the applicable prospectus supplement, we will authorize
underwriters or other persons acting as our agents to solicit offers by certain
institutions to purchase capital securities from us pursuant to delayed delivery
contracts providing for payment and delivery on the date stated in the
prospectus supplement. Each contract will be for an amount not less than, and
the aggregate amount of securities sold pursuant to such contracts shall not be
less nor more than, the respective amounts stated in the prospectus supplement.
Institutions with whom the contracts, when authorized, may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and other institutions, but
shall in all cases be subject to our approval. Delayed delivery contracts will
not be subject to any conditions except that:
o the purchase by an institution of the capital securities or warrants covered
under that contract shall not at the time of delivery be prohibited under
the laws of the jurisdiction to which that institution is subject; and
o if the capital securities or warrants are also being sold to underwriters
acting as principals for their own account, the underwriters shall have
purchased such debt securities or warrants not sold for delayed delivery.
The underwriters and other persons acting as our agents will not have any
responsibility in respect of the validity or performance of delayed delivery
contracts.
Certain of the underwriters and their associates and affiliates may be
customers of, have borrowing relationships with, engage in other transactions
with, and/or perform services, including investment banking services, for, us or
one or more of our affiliates in the ordinary course of business.
Certain of the underwriters may use this prospectus and the accompanying
prospectus supplement for offers and sales related to market-making transactions
in the securities. These underwriters may act as principal or agent in these
transactions, and the sales will be made at prices related to prevailing market
prices at the time of sale.
The securities will be new issues of securities and will have no established
trading market. The securities may or may not be listed on a national securities
exchange or the Nasdaq National Market. We can make no assurance as to the
liquidity of or the existence of trading markets for any of the securities.
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VALIDITY OF SECURITIES
Unless the applicable prospectus supplement indicates otherwise, 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 trust
will be passed upon for State Street and for the trusts by Richards, Layton &
Finger, special Delaware counsel to State Street and the trusts. Unless the
applicable prospectus supplement indicates otherwise, certain legal matters will
be passed upon by Ropes & Gray for State Street and the 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 partner of Ropes & Gray, is a director of State Street. Mr. Casner
owns beneficially a total of 17,204 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 as to all
matters of Delaware law.
EXPERTS
The consolidated financial statements of State Street Corporation
incorporated by reference in State Street Corporation's Annual Report (Form
10-K) for the year ended December 31, 1999, have been audited by Ernst & Young
LLP, independent auditors, as set forth in their report thereon incorporated by
reference therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
report given on the authority of such firm as experts in accounting and
auditing.
With respect to the unaudited condensed consolidated interim financial
information for the three-month periods ended March 31, 1999 and March 31, 1998,
the six-month periods ended June 30, 1999 and June 30, 1998, and the nine-month
periods ended September 30, 1999 and September 30, 1998, incorporated by
reference in this Prospectus, Ernst & Young LLP have reported that they have
applied limited procedures in accordance with professional standards for a
review of such information. However, their separate report, included in State
Street Corporation's Quarterly Reports on Form 10-Q for the quarters ended March
31, 1999, June 30, 1999, and September 30 1999, and incorporated herein by
reference, states that they did not audit and they do not express an opinion on
that interim financial information. Accordingly, the degree of reliance on their
report on such information should be restricted considering the limited nature
of the review procedures applied. The independent auditors are not subject to
the liability provisions of Section 11 of the Securities Act of 1933 (the "Act")
for their report on the unaudited interim financial information because that
report is not a "report" or a "part" of the Registration Statement prepared or
certified by the auditors within the meaning of Sections 7 and 11 of the Act.
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================================================================================
CAPITAL SECURITIES
$1,000,000,000
STATE STREET CAPITAL TRUST II
STATE STREET CAPITAL TRUST III
STATE STREET CAPITAL TRUST IV
CAPITAL SECURITIES
FULLY AND UNCONDITIONALLY GUARANTEED BY
STATE STREET CORPORATION
--------------------
PROSPECTUS
--------------------
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized anyone to provide you with
different information.
We are not offering the securities in any state where the offer is not
permitted.
We do not claim the accuracy of the information in this prospectus as of any
date other than the dates stated on the cover.
, 2000
================================================================================
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PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution.
- --------------------------------------------------------------------------------
Registration fee under the Securities Act of 1933, as amended...... $211,200.00
Fees of rating agencies............................................ 50,000.00
Trustees' fee and expenses......................................... 0.00
Printing and engraving............................................. 15,000.00
Accounting services................................................ 15,000.00
Legal fees of Registrants' counsel................................. 100,000.00
Miscellaneous...................................................... 0.00
Total....................................................... $391,200.00
===========
- --------------------------------------------------------------------------------
* All amounts except the Registration Fee are estimated.
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:
o the articles of organization;
o a by-law adopted by shareholders; or
o 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). This indemnification
does not apply 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
<PAGE>
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
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
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<PAGE>
corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of
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 the issuer trustee of each 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 the applicable 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.
Exhibit No. Description
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 By-laws 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).
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
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<PAGE>
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
Bank One Trust Company, N.A. (as successor in interest to 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 Bank One Trust Company, N.A.
(as successor in interest to 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
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 Bank One Trust Company, N.A. (as
successor in interest to 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) (filed with the Securities and Exchange Commission as
Exhibit 4.15 to Registrant's Registration Statement on Form
S-3 filed on April 1, 1998, Commission File No. 333-49143 and
incorporated by reference).
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 (filed with the
Securities and Exchange Commission as Exhibit 4.16 to
Registrant's Registration Statement on Form S-3 filed on April
1, 1998, Commission File No. 333-49143 and incorporated by
reference).
4.17 Certificate of Trust of State Street Capital Trust II, as
filed with the Delaware Secretary of State on March 25, 1998
(filed with the Securities and Exchange Commission as Exhibit
4.18 to Registrant's Registration Statement on Form S-3 filed
on April 1, 1998, Commission File No. 333-49143 and
incorporated by reference).
4.18 Certificate of Trust of State Street Capital Trust III, as
filed with the Delaware Secretary of State on March 25, 1998
(filed with the Securities and Exchange Commission as Exhibit
4.19 to Registrant's Registration Statement on Form S-3 filed
on April 1, 1998, Commission File No. 333-49143 and
incorporated by reference).
4.19 Certificate of Trust of State Street Capital Trust IV, as
filed with the Delaware Secretary of State on March 31, 2000.
4.20 Declaration of Trust of State Street Capital Trust II among
State Street Corporation, as Depositor, Bank One Trust
Company, N.A. (as successor in interest to The First National
Bank of Chicago), as Property Trustee, Bank One Delaware,
Inc., as Delaware Trustee, and the Administrative Trustees
named therein (filed with the Securities and Exchange
Commission as Exhibit 4.21 to Registrant's Registration
Statement on Form S-3 filed on April 1, 1998, Commission File
No. 333-49143 and incorporated by reference).
4.21 Declaration of Trust of State Street Capital Trust III among
State Street Corporation, as Depositor, Bank One Trust
Company, N.A. (as successor in interest to The First National
Bank of Chicago), as Property Trustee, Bank One Delaware,
Inc., as Delaware Trustee, and the Administrative Trustees
named therein (filed with the Securities and Exchange
Commission as Exhibit 4.22 to Registrant's Registration
Statement on Form S-3 filed on April 1, 1998, Commission File
No. 333-49143 and incorporated by reference).
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<PAGE>
4.22 Declaration of Trust of State Street Capital Trust IV among
State Street Corporation, as Depositor, Bank One Trust
Company, N.A., as Property Trustee, Bank One Delaware, Inc.,
as Delaware Trustee, and the Administrative Trustees named
therein.
4.23 Form of Amended and Restated Trust Agreement for each of State
Street Capital Trust II, State Street Capital Trust III and
State Street Capital Trust IV among State Street Corporation,
as Depositor, Bank One Trust Company, N.A. (where applicable,
as successor in interest to The First National Bank of
Chicago), as Property Trustee, Bank One Delaware, Inc., as
Delaware Trustee, and the Administrative Trustees named
therein.
4.24 Form of Capital Security Certificate for each of State Street
Capital Trust II, State Street Capital Trust III and State
Street Capital Trust IV (included as Exhibit D to Exhibit
4.23).
4.25 Form of Guarantee Agreement for each of State Street Capital
Trust II, State Street Capital Trust III and State Street
Capital Trust IV between State Street Corporation, as
guarantor, and Bank One Trust Company, N.A. (where applicable,
as successor in interest to 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, the Guarantees
to be issued by the Corporation, the Preferred Stock and
Common Stock.
5.2 Opinion of counsel to State Street Corporation as to the
validity of the Warrants to purchase the Debt Securities,
Preferred Stock and Common Stock (to be filed by amendment).
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.
5.5 Opinion of special Delaware counsel to State Street
Corporation and State Street Capital Trust IV as to the
validity of the Capital Securities to be issued by State
Street Capital Trust IV.
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, 1999 of
State Street Corporation).
15.1 Letter of Ernst & Young LLP dated April 3, 2000.
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
5.3, 5.4 and 5.5).
24.1 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 (to
be filed by amendment).
25.2 Form T-1 Statement of Eligibility of Bank One Trust Company,
N.A. (as successor in interest to The First National Bank of
Chicago) to act as trustee under the Indenture and Guarantee
Agreements.
25.3 Form T-1 Statement of Eligibility of Bank One Trust Company,
N.A. (as successor in interest to The First National Bank of
Chicago) to act as trustee under the Amended and Restated
Trust Agreement of State Street Capital Trust II.
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<PAGE>
25.4 Form T-1 Statement of Eligibility of Bank One Trust Company,
N.A. (as successor in interest to The First National Bank of
Chicago) to act as trustee under the Amended and Restated
Trust Agreement of State Street Capital Trust III.
25.5 Form T-1 Statement of Eligibility of Bank One Trust Company,
N.A. (as successor in interest to The First National Bank of
Chicago) to act as trustee under the Amended and Restated
Trust Agreement of State Street Capital Trust IV.
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:
o 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
o 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 SEC 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;
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<PAGE>
(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 provide to the underwriter at the closing specified in the
underwriting agreement certificates in such denominations and
registered in such names as required by the underwriter to permit
prompt delivery to each purchaser.
(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.
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<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
16th day of March, 2000.
STATE STREET CORPORATION
By:
/s/ Frederick Baughman
-------------------------------------------------
Frederick Baughman
Corporate Controller 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,
Frederick Baughman, and Maureen S. 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>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Marshall N. Carter Chairman and Chief Executive March 16, 2000
- ----------------------------------------- Officer (Principal Executive ----------------
MARSHALL N. CARTER Officer)
/s/ Ronald L. O'Kelley Executive Vice President, March 16, 2000
- ---------------------------------------- Chief Financial Officer and ----------------
RONALD L. O'KELLEY Treasurer (Principal Financial
Officer)
/s/ Frederick Baughman Corporate Controller March 16, 2000
- -------------------------------------- (Principal Accounting Officer) ----------------
FREDERICK BAUGHMAN
/s/ Tenley E. Albright Director March 16, 2000
- ----------------------------------------- ----------------
TENLEY E. ALBRIGHT
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ I. Macallister Booth Director March 16, 2000
- -------------------------------------------- ----------------
I. MACALLISTER BOOTH
Director
- -------------------------------------------- ----------------
JAMES I. CASH
/s/ Truman S. Casner Director March 16, 2000
- -------------------------------------------- ----------------
TRUMAN S. CASNER
Director
- -------------------------------------------- ----------------
NADER F. DAREHSHORI
/s/ Arthur L. Goldstein Director March 16, 2000
- -------------------------------------------- ----------------
ARTHUR L. GOLDSTEIN
Director
- -------------------------------------------- ----------------
DAVID P. GRUBER
/s/ John M. Kucharski Director March 16, 2000
- -------------------------------------------- ----------------
JOHN M. KUCHARSKI
/s/ Charles R. Lamantia Director March 16, 2000
- -------------------------------------------- ----------------
CHARLES R. LAMANTIA
/s/ David B. Perini Director March 16, 2000
- -------------------------------------------- ----------------
DAVID B. PERINI
Director
- -------------------------------------------- ----------------
DENNIS J. PICARD
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Alfred Poe Director March 16, 2000
- -------------------------------------------- ----------------
ALFRED POE
/s/ Bernard W. Reznicek Director March 16, 2000
- -------------------------------------------- ----------------
BERNARD W. REZNICEK
/s/ David A. Spina Director March 16, 2000
- -------------------------------------------- ----------------
DAVID A. SPINA
/s/ Diana Chapman Walsh Director March 16, 2000
- -------------------------------------------- ----------------
DIANA CHAPMAN WALSH
/s/ Robert E. Weissman Director March 16, 2000
- -------------------------------------------- ----------------
ROBERT E. WEISSMAN
</TABLE>
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<PAGE>
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 31st
day of March, 2000.
State Street Capital Trust II
By:
/s/ James E. Murphy
-------------------------------
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 31st
day of March, 2000.
State Street Capital Trust III
By:
/s/ James E. Murphy
-------------------------------
Administrative Trustee
Pursuant to the requirements of the Securities Act of 1933, State Street
Capital Trust IV 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 31st
day of March, 2000.
State Street Capital Trust IV
By:
/s/ James E. Murphy
-------------------------------
Administrative Trustee
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<PAGE>
Exhibit Index
Exhibit No. Description
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 By-laws 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).
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
Bank One Trust Company, N.A. (as successor in interest to 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 Bank One Trust Company, N.A.
(as successor in interest to The First National Bank of
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<PAGE>
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
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 Bank One Trust Company, N.A. (as
successor in interest to 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) (filed with the Securities and Exchange Commission as
Exhibit 4.15 to Registrant's Registration Statement on Form
S-3 filed on April 1, 1998, Commission File No. 333-49143 and
incorporated by reference).
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 (filed with the
Securities and Exchange Commission as Exhibit 4.16 to
Registrant's Registration Statement on Form S-3 filed on April
1, 1998, Commission File No. 333-49143 and incorporated by
reference).
4.17 Certificate of Trust of State Street Capital Trust II, as
filed with the Delaware Secretary of State on March 25, 1998
(filed with the Securities and Exchange Commission as Exhibit
4.18 to Registrant's Registration Statement on Form S-3 filed
on April 1, 1998, Commission File No. 333-49143 and
incorporated by reference).
4.18 Certificate of Trust of State Street Capital Trust III, as
filed with the Delaware Secretary of State on March 25, 1998
(filed with the Securities and Exchange Commission as Exhibit
4.19 to Registrant's Registration Statement on Form S-3 filed
on April 1, 1998, Commission File No. 333-49143 and
incorporated by reference).
4.19 Certificate of Trust of State Street Capital Trust IV, as
filed with the Delaware Secretary of State on March 31, 2000.
4.20 Declaration of Trust of State Street Capital Trust II among
State Street Corporation, as Depositor, Bank One Trust
Company, N.A. (as successor in interest to The First National
Bank of Chicago), as Property Trustee, Bank One Delaware,
Inc., as Delaware Trustee, and the Administrative Trustees
named therein (filed with the Securities and Exchange
Commission as Exhibit 4.21 to Registrant's Registration
Statement on Form S-3 filed on April 1, 1998, Commission File
No. 333-49143 and incorporated by reference).
4.21 Declaration of Trust of State Street Capital Trust III among
State Street Corporation, as Depositor, Bank One Trust
Company, N.A. (as successor in interest to The First National
Bank of Chicago), as Property Trustee, Bank One Delaware,
Inc., as Delaware Trustee, and the Administrative Trustees
named therein (filed with the Securities and Exchange
Commission as Exhibit 4.22 to Registrant's Registration
Statement on Form S-3 filed on April 1, 1998, Commission File
No. 333-49143 and incorporated by reference).
4.22 Declaration of Trust of State Street Capital Trust IV among
State Street Corporation, as Depositor, Bank One Trust
Company, N.A., as Property Trustee, Bank One Delaware, Inc.,
as Delaware Trustee, and the Administrative Trustees named
therein.
4.23 Form of Amended and Restated Trust Agreement for each of State
Street Capital Trust II, State Street Capital Trust III and
State Street Capital Trust IV among State Street Corporation,
as Depositor, Bank One Trust Company, N.A. (where applicable,
as successor in interest to The First National Bank of
Chicago), as Property Trustee, Bank One Delaware, Inc., as
Delaware Trustee, and the Administrative Trustees named
therein.
4.24 Form of Capital Security Certificate for each of State Street
Capital Trust II, State Street Capital Trust III and State
Street Capital Trust IV (included as Exhibit D to Exhibit
4.23).
-57-
<PAGE>
4.25 Form of Guarantee Agreement for each of State Street Capital
Trust II, State Street Capital Trust III and State Street
Capital Trust IV between State Street Corporation, as
guarantor, and Bank One Trust Company, N.A. (where applicable,
as successor in interest to 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, the Guarantees
to be issued by the Corporation, the Preferred Stock and
Common Stock.
5.2 Opinion of counsel to State Street Corporation as to the
validity of the Warrants to purchase the Debt Securities,
Preferred Stock and Common Stock (to be filed by amendment).
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.
5.5 Opinion of special Delaware counsel to State Street
Corporation and State Street Capital Trust IV as to the
validity of the Capital Securities to be issued by State
Street Capital Trust IV.
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, 1999 of
State Street Corporation).
15.1 Letter of Ernst & Young LLP dated April 3, 2000.
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
5.3, 5.4 and 5.5).
24.1 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 (to
be filed by amendment).
25.2 Form T-1 Statement of Eligibility of Bank One Trust Company,
N.A. (as successor in interest to The First National Bank of
Chicago) to act as trustee under the Indenture and Guarantee
Agreements.
25.3 Form T-1 Statement of Eligibility of Bank One Trust Company,
N.A. (as successor in interest to The First National Bank of
Chicago) to act as trustee under the Amended and Restated
Trust Agreement of State Street Capital Trust II.
25.4 Form T-1 Statement of Eligibility of Bank One Trust Company,
N.A. (as successor in interest to The First National Bank of
Chicago) to act as trustee under the Amended and Restated
Trust Agreement of State Street Capital Trust III.
25.5 Form T-1 Statement of Eligibility of Bank One Trust Company,
N.A. (as successor in interest to The First National Bank of
Chicago) to act as trustee under the Amended and Restated
Trust Agreement of State Street Capital Trust IV.
-58-
Exhibit 4.19
CERTIFICATE OF TRUST
OF
STATE STREET CAPITAL TRUST IV
This Certificate of Trust of State Street Capital Trust IV (the "Trust"),
dated March 31, 2000, 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 IV.
(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 Bank
One Delaware, Inc., Three Christiana Center, 201 North Walnut Street,
Wilmington, Delaware 19801.
(c) Effective Date. This Certificate of Trust shall be effective as
of March 31, 2000.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust, have
executed this Certificate of Trust as of the date first above written.
BANK ONE TRUST COMPANY, N.A. (as
successor in interest to The First
National Bank of Chicago),
as Trustee
By:/s/ Sandra L. Caruba
----------------------------
Name: Sandra L. Caruba
Title: Vice President
BANK ONE DELAWARE, INC.,
as Trustee
By:/s/ Sandra L. Caruba
----------------------------
Name: Sandra L. Caruba
Title: Vice President
<PAGE>
Ward A. Spooner,
as Administrative Trustee
/s/ Ward A. Sponner
---------------------------
James E. Murphy,
as Administrative Trustee
/s/ James E. Murphy
---------------------------
-2-
Exhibit 4.22
DECLARATION OF TRUST
OF
STATE STREET CAPITAL TRUST IV
This DECLARATION OF TRUST, dated as of March 31, 2000, among State Street
Corporation, a Massachusetts corporation, as "Depositor," Bank One Trust
Company, N.A. (as successor in interest to The First National Bank of Chicago),
as "Property Trustee," Bank One Delaware, Inc., as "Delaware Trustee" and Ward
A. Spooner 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
IV (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 on behalf of the Trust, and sue and be sued on behalf of the Trust.
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 constitute
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 Trust Agreement, the
Trustees shall not have any duty or obligation hereunder or with respect to the
trust estate, except as otherwise required by applicable law or as may be
necessary to obtain prior to such execution and delivery 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
<PAGE>
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 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 the 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 Bank One Trust Company, N.A. and Bank One
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. Bank One 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/ Frederick Baughman
--------------------------------------
Name: Frederick Baughman
Title: Controller and Chief Accounting
Officer
BANK ONE TRUST COMPANY, N.A. (as
successor in interest to The First
National Bank of Chicago),
as Trustee
By:/s/ Sandra L. Caruba
--------------------------------------
Name: Sandra L. Caruba
Title: Vice President
BANK ONE DELAWARE, INC.,
as Trustee
By:/s/ Sandra L. Caruba
--------------------------------------
Name: Sandra L. Caruba
Title: Vice President
-3-
<PAGE>
Ward A. Spooner,
as Administrative Trustee
/s/ Ward A. Spooner
-------------------
James E. Murphy,
as Administrative Trustee
/s/ James E. Murphy
-------------------
-4-
Exhibit 4.23
================================================================================
AMENDED AND RESTATED TRUST AGREEMENT
among
STATE STREET CORPORATION,
as Depositor
BANK ONE TRUST COMPANY, N.A.
(as successor in interest to The First National Bank of Chicago)
as Property Trustee
BANK ONE DELAWARE, INC.,
as Delaware Trustee
and the several Holders of the Trust Securities
------------------
Dated as of _____________, 2000
------------------
STATE STREET CAPITAL TRUST [II/III/IV]
================================================================================
<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......................-13-
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.........................................-18-
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..............................................-21-
SECTION 4.3. Subordination of Common Securities......................-23-
SECTION 4.4. Payment Procedures......................................-24-
SECTION 4.5. Tax Returns and Reports.................................-24-
SECTION 4.6. Payment of Expenses of the Issuer Trust.................-24-
SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions..-25-
i
<PAGE>
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.......................................-25-
SECTION 5.2. The Trust Securities Certificates.......................-25-
SECTION 5.3. Execution and Delivery of Trust Securities
Certificates............................................-26-
SECTION 5.4. Registration of Transfer and Exchange of Capital
Securities Certificates.................................-26-
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates............................................-27-
SECTION 5.6. Persons Deemed Holders..................................-27-
SECTION 5.7. Access to List of Holders' Names and Addresses..........-27-
SECTION 5.8. Maintenance of Office or Agency.........................-28-
SECTION 5.9. Appointment of Paying Agent.............................-28-
SECTION 5.10. Ownership of Common Securities by Depositor.............-28-
SECTION 5.11. Book-Entry Capital Securities Certificates; Common
Securities Certificate..................................-29-
SECTION 5.12. Notices to Clearing Agency..............................-30-
SECTION 5.13. Definitive Capital Securities Certificates..............-30-
SECTION 5.14. Rights of Holders; Waivers of Past Defaults.............-31-
SECTION 5.15. CUSIP Numbers...........................................-33-
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights............................-33-
SECTION 6.2. Notice of Meetings......................................-34-
SECTION 6.3. Meetings of Holders of the Capital Securities...........-34-
SECTION 6.4. Voting Rights...........................................-35-
SECTION 6.5. Proxies, etc............................................-35-
SECTION 6.6. Holder Action by Written Consent........................-35-
SECTION 6.7. Record Date for Voting and Other Purposes...............-35-
SECTION 6.8. Acts of Holders.........................................-36-
SECTION 6.9. Inspection of Records...................................-37-
ii
<PAGE>
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee
and the Delaware Trustee................................-37-
SECTION 7.2. Representations and Warranties of Depositor.............-38-
ARTICLE VIII
THE ISSUER TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities.....................-39-
SECTION 8.2. Certain Notices.........................................-41-
SECTION 8.3. Certain Rights of Property Trustee......................-42-
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities..-44-
SECTION 8.5. May Hold Securities.....................................-44-
SECTION 8.6. Compensation; Indemnity; Fees...........................-44-
SECTION 8.7. Corporate Property Trustee Required; Eligibility of
Issuer Trustees and Administrative Trustees.............-45-
SECTION 8.8. Conflicting Interests...................................-46-
SECTION 8.9. Co-Trustees and Separate Trustee........................-46-
SECTION 8.10. Resignation and Removal; Appointment of Successor.......-47-
SECTION 8.11. Acceptance of Appointment by Successor..................-49-
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
Business................................................-49-
SECTION 8.13. Preferential Collection of Claims Against Depositor or
Issuer Trust............................................-50-
SECTION 8.14. Trustee May File Proofs of Claim........................-50-
SECTION 8.15. Reports by Property Trustee.............................-51-
SECTION 8.16. Reports to the Property Trustee.........................-51-
SECTION 8.17. Evidence of Compliance with Conditions Precedent........-51-
SECTION 8.18. Number of Issuer Trustees...............................-52-
SECTION 8.19. Delegation of Power.....................................-52-
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date........................-52-
iii
<PAGE>
SECTION 9.2. Early Dissolution......................................-52-
SECTION 9.3. Dissolution............................................-53-
SECTION 9.4. Liquidation............................................-53-
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements
of Issuer Trust........................................-55-
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders........................-56-
SECTION 10.2. Amendment..............................................-56-
SECTION 10.3. Separability...........................................-57-
SECTION 10.4. Governing Law..........................................-57-
SECTION 10.5. Payments Due on Non-Business Day.......................-58-
SECTION 10.6. Successors.............................................-58-
SECTION 10.7. Headings...............................................-58-
SECTION 10.8. Reports, Notices and Demands...........................-58-
SECTION 10.9. Agreement Not to Petition..............................-59-
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture
Act....................................................-59-
SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee
Agreement and Indenture................................-60-
SECTION 10.12. Counterparts...........................................-60-
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 ____________, 2000 among
(i) State Street Corporation, a Massachusetts corporation (including any
successors or assigns, the "Depositor"), (ii) Bank One Trust Company, N.A. (as
successor in interest to 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) Bank One Delaware, Inc., a Delaware corporation, as Delaware
trustee (in such capacity, the "Delaware Trustee"), (iv) [Ward A. Spooner], an
individual, and [James E. Murphy], an individual, each of whose address is c/o
State Street Corporation, 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 ____________, 2000 (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 ____________, 2000,
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 are 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:
(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;
<PAGE>
(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.
"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.
2
<PAGE>
"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.
"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.
3
<PAGE>
"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.
"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.
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"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 Bank One Trust Company, N.A. (as successor in
interest to 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 Floating Rate Junior Subordinated
Deferrable Interest Debentures, Series A, issued pursuant to the Indenture.
"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. ss.3801 et seq., as it may be amended from time to time.
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"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).
"Distribution Period" means the period of time beginning on any
Distribution Date and ending on the day immediately preceding the next
succeeding Distribution Date.
"Distribution Rate" means the rate of Distribution calculated as provided
in Section 4.1(b).
"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 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
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(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 Bank One Trust Company, N.A. (as successor in interest to 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.
"Investment Company Act" means the Investment Company Act of 1940, or any
successor statute thereto, in each case as amended from time to time.
"Issuer Trust" means the Delaware business trust known as "State Street
Capital Trust [II/III/IV]" which was created on ___________, 2000 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.
"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.
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"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 of Directors of such Person, a Vice Chairman
of the Board of Directors of such Person, 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
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
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"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).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.9 and shall initially be the Bank.
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"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.
"Responsible Offer" means, with respect to any Issuer Trustee, the
President, any Senior Vice President, any Vice Present, any Assistant Vice
President, the Secretary, any Assistant Secretary, the Treasurer, any Assistant
Treasurer, any Trust Officer or Assistant Trust Officer of such Issuer Trustee.
"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 5.4.
"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,
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for the purposes of this definition, any Capital Securities Certificate executed
and delivered under Section 5.5 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Capital Securities 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.
"Time of Delivery" means [_________________________].
"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.
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"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Capital Securities Certificates.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
___________, 2000, among the Trust, the Depositor and Goldman, Sachs & Co., as
representative of the underwriters named therein, and shall also include any
related pricing agreement.
"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
[II/III/IV]," 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 Three
Christiana Center, 201 North Walnut Street, Wilmington, Delaware 19801,
Attention: Legal Department/First USA, 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 10006.
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.
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SECTION 2.4. Issuance of the Capital Securities.
On ___________, 2000, 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 Administrative Trustee, on behalf of the
Trust, shall execute in accordance with Section 5.3 and deliver to the
Underwriters named in the Underwriting Agreement a Capital Securities
Certificate, registered in the name of the nominee of the initial Clearing
Agency, in an aggregate amount of [150,000] Capital Securities having an
aggregate Liquidation Amount of $[150,000,000], against payment of the purchase
price therefor in immediately available funds, which funds 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 Issuer Trust, shall execute in
accordance with Section 5.3 and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount of
[4,640] Common Securities having an aggregate Liquidation Amount of $[4,640,000]
against payment by the Depositor of the purchase price therefor in immediately
available funds, which amount such Administrative Trustee shall promptly deliver
to the Property Trustee. Contemporaneously therewith, an Administrative Trustee,
on behalf the Issuer Trust, shall subscribe to and purchase from the Depositor
Debentures registered in the name of the Issuer Trust and having an aggregate
principal amount equal to $[154,640,000] and shall deliver to the Depositor the
purchase price therefor (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 Issuer 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
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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.
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 Underwriting
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;
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(H) execution of the Trust Securities on behalf of the Trust
in accordance with this Trust Agreement;
(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;
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(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;
(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 transactions except as expressly provided
herein or contemplated hereby. In particular, the Issuer Trustees (acting on
behalf of the Issuer Trust) 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 of Trust
Securities 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 issuance and sale of the Capital Securities,
the Depositor shall have the right and responsibility to assist the Issue 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):
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(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;
(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.
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SECTION 2.8. Assets of Trust.
The assets of the Issuer Trust shall consist solely of the Trust Property.
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.
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Distributions shall accumulate from _____________, 2000 and, except in the
event (and to the extent) that the Depositor exercises its right to defer
the payment of interest on the Debentures pursuant to the Indenture, shall
be payable quarterly in arrears on the 15th day of August, November,
February and May of each year, commencing on _____________, 2000. 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 at the
Distribution Rate in respect 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 four. 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) The Distribution Rate in respect of the Capital Securities will be a
floating rate per annum determined by reference to 3-Month LIBOR, determined as
described below, plus a margin of [0.56]%. "3-Month LIBOR" means the London
interbank offered rate for three-month, U.S. dollar deposits and, with respect
to any Distribution Period, will be calculated by Bank One Trust Company, N.A.
(as successor in interest to The First National Bank of Chicago), as calculation
agent (the "Calculation Agent"), as follows:
(i) On the second Market Day (as defined below) preceding the
commencement of such Distribution Period (each, a "Determination Date"),
3-Month LIBOR will be determined on the basis of the offered rate for
deposits of not less than U.S. $1,000,000 for a period of three months
(the "Index Maturity"), commencing on the second Market Day immediately
preceding the commencement of such Distribution Period, which appears on
the display designated as Page 3750 on the Dow Jones Telerate Service (or
such other pages as may replace Page 3750 on that service for the purpose
of displaying London interbank offered rates of major banks) ("Telerate
Page 3750") as of 11:00 a.m., London time, on said Determination Date. If
no such offered rate appears, 3-Month LIBOR with respect to such
Distribution Period will be determined as described in (ii) below.
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(ii) With respect to a Determination Date on which no such offered
rate appears on Telerate Page 3750 as described in (i) above, 3-Month
LIBOR shall be the arithmetic mean, expressed as a percentage, of the
offered rates (unless by its terms such display provides for only a single
rate, in which case a single rate shall be used) for deposits in U.S.
dollars for the Index Maturity that appears on the display designated as
"LIBO" on the Reuters Monitor Money Market Rates Service (or such other
page as may replace the LIBO page on that service for the purpose of
displaying London interbank offered rates of major banks) ("Reuters Screen
LIBO Page") as of 11:00 a.m., London time, on such date. If, in turn, at
least two such rates are not displayed on the Reuters Screen LIBO Page at
such time (unless, as aforesaid, only a single rate is required), the
Calculation Agent will obtain from each of four reference banks in London
selected by the Calculation Agent ("Reference Banks") such bank's offered
quotation (expressed as a percentage per annum) as of approximately 11:00
a.m., London time, on such date for deposits in U.S. dollars to prime
banks in the London interbank market for the Index Maturity. If two or
more such quotations are provided as requested, then 3-Month LIBOR for
such date shall be the arithmetic average of such quotations. If, in turn,
fewer than two such quotations are provided as requested, then 3- Month
LIBOR for such date will be obtained from the preceding Market Day for
which the Telerate Page 3750 displayed a rate for the Index Maturity.
(iii) If on any Determination Date, the Calculation Agent is
required but unable to determine 3-Month LIBOR in the manner provided in
paragraphs (i) and (ii) above, 3-Month LIBOR for such Distribution Period
shall be 3-Month LIBOR as determined on the previous Determination Date.
The term "Market Day" means any Business Day on which commercial banks and
foreign exchange markets are open for business (including dealings in foreign
exchange and foreign currency deposits) in New York and London.
The Distribution Rate for any Distribution Period will at no time be
higher than the maximum rate then permitted by New York law as the same may be
modified by United States law.
All percentages resulting from any calculations referred to in this Trust
Agreement will be rounded, if necessary, to the nearest one ten-thousandth of a
percentage point, with five hundred- thousandths of a percentage point being
rounded upwards (e.g., 6.87655% (or .0687655) would be rounded to 6.8766% (or
.068766)), and all U.S. dollar amounts used in or resulting from such
calculations will be rounded to the nearest cent (with one-half cent or more
being rounded upwards).
The Calculation Agent shall, as soon as practicable after 11:00 a.m.,
London time, on each Determination Date, determine the Distribution Rate and
inform the Debenture Trustee, the Property Trustee and the Paying Agent. Unless
otherwise provided by the Property Trustee, the Paying Agent will calculate the
amount of Distributions payable in respect of the following Distribution Period
(the "Distribution Amount"). The Distribution Amount shall be calculated by
applying the Distribution
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Rate to the Liquidation Amount of each Capital Security outstanding at the
commencement of the Distribution Period, multiplying each such Liquidation
Amount by the actual number of days in the Distribution Period concerned (which
actual number of days shall include the first day but exclude the last day of
such Distribution Period) divided by 360 and rounding the resulting figure to
the nearest cent (with one-half cent or more being rounded upwards). The
determination of the Distribution Rate by the Calculation Agent and the
Distribution Amount by the Paying Agent will (in the absence of wilful default,
bad faith or manifest error) be final, conclusive and binding on all concerned.
None of the Debenture Trustee, the Property Trustee, the Paying Agent, the
Calculation Agent, the Issuer Trust or the Depositor (or any of their respective
officers, directors, agents, beneficiaries, employees or affiliates) shall have
any liability to any Person for (i) the selection of any Reference Bank or (ii)
any inability to retain major banks in the London interbank market, in the case
of the Calculation Agent, which is caused by circumstances beyond its reasonable
control.
Upon the request of a holder of a Capital Security, the Calculation Agent
will provide the Distribution Rate then in effect and, if determined, the
Distribution Rate for the next Distribution Period with respect to the Capital
Securities. Each such Distribution Rate may be obtained by telephoning the
Calculation Agent.
(c) 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
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);
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(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 Trust Securities will cease 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
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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 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
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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.
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
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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 5.14 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 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
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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.
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
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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 5.5, 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.
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.
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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 Bank One Trust Company,
N.A. (as successor in interest to The First National Bank of Chicago), One North
State Street, 9th Floor, Chicago, Illinois 60602, 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.
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
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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.
(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.
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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 Issuer Trustees shall recognize
the Holders of the Definitive Capital Securities Certificates as Trust 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 5.14, 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 any 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 Securities.
The Property Trustee shall not revoke any action previously authorized or
approved by
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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 have
been duly authorized by all necessary corporate or other action on the part of
the Property Trustee and the Delaware Trustee and do 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 any 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 wilful 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 the Issuer Trustees are not
personally liable to such Holder 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.
(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.
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(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 5.14, 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 wilful 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, or exercising any trust or power conferred upon the Property
Trustee under this Trust Agreement;
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(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 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.
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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 wilful 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;
(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
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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 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.
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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 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
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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 and 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 8.7 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 8.7, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article VIII. 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.
(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
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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 the 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, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Depositor.
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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
8.9, 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 8.9.
(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.
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 VIII
shall become effective until the acceptance
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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.
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
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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 VIII.
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
qualified and eligible under this Article VIII, without the execution or filing
of any paper or any further act on the part of any of the parties hereto.
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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],
2001, 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":
(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
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transfer the Common Securities as provided by Section 5.10, 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), 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 Trust, the Property Trustee, the Delaware Trustee, the Administrative
Trustees or the Issuer Trust shall be given in writing addressed to such Person
as follows: (a) with respect to the Property Trustee, to Bank One Trust Company,
N.A., One North State Street, 9th Floor, Chicago, Illinois 60602,
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Attention: Corporate Trust Administration; (b) with respect to the Delaware
Trustee, to Bank One Delaware, Inc., Three Christiana Center, 201 North Walnut
Street, Wilmington, Delaware 19801, Attention: Legal Department/First USA; (c)
with respect to the Administrative Trustees, to them at 61 Broadway, 15th Floor,
New York, New York 10006 marked "Attention: Administrative Trustees of State
Street Capital Trust [II/III/IV]"; 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.
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(c) 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.
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 to 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:
BANK ONE TRUST COMPANY, N.A.
(as successor in the interest to The
First National Bank of Chicago)
as Property Trustee
By:____________________________________
Name:
Attest:_______________________ Title:
BANK ONE DELAWARE, INC.,
as Delaware Trustee
By:____________________________________
Name:
Attest:_______________________ Title:
_______________________________________
[Ward A. Spooner],
Attest:_______________________ as Administrative Trustee
_______________________________________
[James E. Murphy],
Attest:_______________________ as Administrative Trustee
<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)
<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)
63
<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)
64
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Exhibit A
<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 [II/III/IV]
Floating Rate 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 Floating Rate Capital Securities, Series A (the
"Capital Securities"), of State Street Capital Trust [II/III/IV], 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 _________,
2000, among State Street Corporation (the "Corporation"), as Depositor, Bank
One Trust Company, N.A. (as successor in interest to The First National Bank of
Chicago), as Property Trustee, and Bank One 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
_________, 2000, between the Corporation and Bank One Trust Company, N.A. (as
successor in interest to 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
Purchasers") pursuant to a Purchase Agreement, dated _________, 2000, by and
among the Initial Purchasers, the Issuer and the Corporation, and the Initial
Purchasers wish to take delivery of the Capital Securities through DTC. Bank One
Trust Company, N.A. (as successor in interest to 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 is required; and (c) the date any required notice is to be
mailed by or on behalf of the Issuer to
<PAGE>
The Depository Trust Company -3-
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
Garden City, New York 11530-4719
<PAGE>
The Depository Trust Company -4-
(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 Bank
One Trust Company, N.A. (as successor in interest 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 an appropriate notation on the Global Certificate indicating the date
and amount of such reduction.
<PAGE>
The Depository Trust Company -5-
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 [II/III/IV].
Very truly yours,
STATE STREET CAPITAL TRUST [II/III/IV]
(As Issuer)
By:__________________________
Name:
Title: Administrative Trustee
BANK ONE TRUST COMPANY, N.A.
(as successor in interest to The 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 5.10 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] [4,640]
Certificate Evidencing Common Securities
of
State Street Capital Trust [II/III/IV]
Floating Rate Common Securities
(liquidation amount $1,000 per Common Security)
State Street Capital Trust [II/III/IV], 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 [Four
Thousand Six Hundred Forty (4,640)] Common Securities of the Issuer Trust
representing undivided common beneficial interests in the assets of the Issuer
Trust and designated the Floating Rate 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 _________,
2000, as the same may be amended from time to time (the "Trust Agreement"),
among State Street Corporation, as Depositor, Bank One Trust Company, N.A. (as
successor in interest to The First National Bank of Chicago), as Property
Trustee, Bank One 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.
<PAGE>
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
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 _________, 2000.
STATE STREET CAPITAL TRUST [II/III/IV]
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:
BANK ONE TRUST COMPANY, N.A.
(as successor in interest to The First
National Bank of Chicago)
as Property Trustee
By:________________________________
Name:
Title:
C-2
<PAGE>
Exhibit D
[FORM OF GLOBAL CAPITAL SECURITIES CERTIFICATE]
This Capital Securities Certificate is a Book-Entry 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 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
<PAGE>
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.]
D-2
<PAGE>
Certificate Number Number of Capital Securities
[P-1] [150,000]
CUSIP NO.
Certificate Evidencing Capital Securities
of
State Street Capital Trust [II/III/IV]
Floating Rate Capital Securities, Series [A]
(liquidation amount $1,000 per Capital Security)
State Street Capital Trust [II/III/IV], 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 [One Hundred Fifty
Thousand (150,000)] Capital Securities of the Trust representing an undivided
preferred beneficial interest in the assets of the Trust and designated the
State Street Capital Trust [II/III/IV] Floating Rate 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 _________, 2000, as the same may be amended from time
to time (the "Trust Agreement"), among State Street Corporation, as Depositor,
Bank One Trust Company, N.A. (as successor in interest to The First National
Bank of Chicago), as Property Trustee, Bank One 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 _________, 2000, (the
"Guarantee Agreement"), by and between State Street Corporation, as Guarantor,
and Bank One Trust Company, N.A. (as successor in interest to 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.
D-3
<PAGE>
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Issuer Trust
has executed this certificate this ________ day of _________________________.
STATE STREET CAPITAL TRUST [II/III/IV]
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:
BANK ONE TRUST COMPANY, N.A.
(as successor in interest to The First
National Bank of Chicago)
as Property Trustee
By:________________________________
Name:
Title:
D-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.
D-5
Exhibit 4.25
================================================================================
GUARANTEE AGREEMENT
by and between
STATE STREET CORPORATION
as Guarantor
and
BANK ONE TRUST COMPANY, N.A.
(as successor in interest to The First National Bank of Chicago)
as Guarantee Trustee
relating to
STATE STREET CAPITAL TRUST [II/III/IV]
---------------------------
Dated as of _____________, 2000
---------------------------
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS..................................................................1
SECTION 1.1. Definitions............................................1
ARTICLE II
TRUST INDENTURE ACT..........................................................5
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...........................7
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...........................................................11
SECTION 4.1. Guarantee Trustee; Eligibility........................11
SECTION 4.2. Appointment, Removal and Resignation of the
Guarantee Trustee.....................................12
ARTICLE V
GUARANTEE...................................................................13
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
-i-
<PAGE>
SECTION 5.5. Guarantee of Payment..................................14
SECTION 5.6. Subrogation...........................................14
SECTION 5.7. Independent Obligations...............................15
ARTICLE VI
COVENANTS AND SUBORDINATION.................................................15
SECTION 6.1. Subordination.........................................15
SECTION 6.2. Pari Passu Guarantees.................................15
ARTICLE VII
TERMINATION.................................................................16
SECTION 7.1. Termination...........................................16
ARTICLE VIII
MISCELLANEOUS...............................................................16
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 _____________, 2000, between STATE STREET
CORPORATION, a Massachusetts corporation (the "Guarantor"), having its principal
office at 225 Franklin Street, Boston, Massachusetts 02110, and BANK ONE TRUST
COMPANY, N.A. (as successor in interest to 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 [II/III/IV], a
Delaware statutory business trust (the "Issuer Trust").
RECITALS
WHEREAS, pursuant to an Amended and Restated Trust Agreement, of even date
herewith (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 $[_____________] aggregate Liquidation Amount (as defined in the Trust
Agreement) of its Floating Rate 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 Bank One Trust Company, N.A. (as successor in
interest to 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:
-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"
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 Bank One Trust Company, N.A. (as successor in
interest to 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 Bank One Trust Company, N.A. (as
successor in interest to 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 Guarantor, 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 the Trust Indenture 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], 2001, 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
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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.
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(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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(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:
Bank One Trust Company, N.A.
One North State Street, 9th Floor
Chicago, Illinois 60602
Attention: Corporate Trust Administration
Telecopy: 212-373-1383
with a copy to:
State Street Capital Trust [II/III/IV]
c/o State Street Bank and Trust Company, N.A.
61 Broadway, 15th Floor
New York, New York 10006
(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,
as Guarantor
By:
---------------------------------
Name:
Title:
BANK ONE TRUST COMPANY, N.A.
(as successor in interest to
The First National Bank of Chicago)
as Guarantee Trustee
By:
---------------------------------
Name:
Title:
[LETTERHEAD OF ROPES AND GRAY]
April 5, 2000
State Street Corporation
225 Franklin Street
Boston, Massachusetts 02110
State Street Capital Trust II
c/o State Street Bank and Trust
Company, N.A.
61 Broadway, 15th Floor
New York, New York 10006
State Street Capital Trust III
c/o State Street Bank and Trust
Company, N.A.
61 Broadway, 15th Floor
New York, New York 10006
State Street Capital Trust IV
c/o State Street Bank and Trust
Company, N.A.
61 Broadway, 15th Floor
New York, New York 10006
Re: Registration Statement on Form S-3 (Registration No. 333-[_____]) of
State Street Corporation, State Street Capital Trust II, State
Street Capital Trust III, and State Street Capital Trust IV
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
$1,000,000,000 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
<PAGE>
State Street Corporation
State Street Capital Trust II
State Street Capital Trust III
State Street Capital Trust IV -2- April 5, 2000
as of 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 Bank One Trust Company, N.A. (as
successor in interest to The First National Bank of Chicago), as trustee, (iii)
shares of common stock of the Company, $1.00 par value per share (the "Common
Stock"), (iv) shares of preferred stock of the Company, no par value (the
"Preferred Stock"), to be issued in one or more series, and fractional shares of
Preferred Stock (the "Depositary Shares") and (v) 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 Bank One Trust Company, N.A. (as successor in interest to 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 II, State Street Capital Trust III and State
Street Capital Trust IV, each a Delaware business trust (each, an "Issuer Trust"
and together, the "Issuer Trusts"), of up to $1,000,000,000 aggregate amount of
preferred securities representing beneficial ownership interests in such Issuer
Trusts (the "Capital Securities"). The Debt Securities, the Common Stock, the
Preferred Stock, the Depositary Shares, 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.
<PAGE>
State Street Corporation
State Street Capital Trust II
State Street Capital Trust III
State Street Capital Trust IV -3- April 5, 2000
Based on and subject to the foregoing, we are of the opinion that:
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 and
the Common Stock has been duly issued and sold as contemplated in the
Registration Statement, the Common Stock will be validly issued, fully paid, and
nonassessable.
3. 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, and the issuance and sale of the Depositary Shares of such series, 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 and
the Depositary Shares of such series have been duly issued and sold as
contemplated in the Registration Statement, the Preferred Stock of such series
and the Depositary Shares of such series will be validly issued, fully paid, and
nonassessable.
4. 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".
<PAGE>
State Street Corporation
State Street Capital Trust II
State Street Capital Trust III
State Street Capital Trust IV -4- April 5, 2000
Very truly yours,
/s/ Ropes & Gray
Ropes & Gray
[LETTERHEAD OF RICHARDS, LAYTON & FINGER]
April 1, 1998
State Street Capital Trust II State Street Corporation
c/o State Street Bank and Trust Company, 225 Franklin Street
N.A. Boston, Massachusetts 02110
61 Broadway, 15th Floor
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
<PAGE>
State Street Capital Trust II
State Street Corporation
April 1, 1998
Page 2
Company, the Trust and the other registrants listed therein with the Securities
and Exchange Commission (the "SEC") on or about April 1, 1998;
(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
<PAGE>
State Street Capital Trust II
State Street Corporation
April 1, 1998
Page 3
(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 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
ss.3807 of the Delaware Business Trust Act, 12 Del. C. ss. 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.
<PAGE>
State Street Capital Trust II
State Street Corporation
April 1, 1998
Page 4
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.
MIL/GWL/DJM/mag
[LETTERHEAD OF RICHARDS, LAYTON & FINGER]
April 1, 1998
State Street Capital Trust III State Street Corporation
c/o State Street Bank and Trust Company, 225 Franklin Street
N.A. Boston, Massachusetts 02110
61 Broadway, 15th Floor
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
<PAGE>
State Street Capital Trust III
State Street Corporation
April 1, 1998
Page 2
Company, the Trust and the other registrants listed therein with the Securities
and Exchange Commission (the "SEC") on or about April 1, 1998;
(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 I 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
<PAGE>
State Street Capital Trust III
State Street Corporation
April 1, 1998
Page 3
(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 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
ss.3807 of the Delaware Business Trust Act, 12 Del. C. ss. 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.
<PAGE>
State Street Capital Trust III
State Street Corporation
April 1, 1998
Page 4
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.
MIL/GWL/DJM/mag
[LETTERHEAD OF RICHARDS, LAYTON & FINGER]
April 5, 2000
State Street Capital Trust IV State Street Corporation
c/o State Street Bank and Trust Company, 225 Franklin Street
N.A. Boston, Massachusetts 02110
61 Broadway, 15th Floor
New York, New York 10006
Re: State Street Capital Trust IV
Ladies and Gentlemen:
We have acted as special Delaware counsel for State Street
Corporation, a Massachusetts corporation (the "Company"), and State Street
Capital Trust IV, 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 31,
2000 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on March 31, 2000;
(b) The Declaration of Trust of the Trust, dated March 31, 2000,
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 5, 2000;
<PAGE>
State Street Capital Trust IV
State Street Corporation
April 5, 2000
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 5,
2000, 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
Securities are issued and sold to
<PAGE>
State Street Capital Trust IV
State Street Corporation
April 5, 2000
Page 3
the Capital Security Holders in accordance with the Trust Agreement and the
Registration Statement, and (viii) that the Delaware Trustee satisfies the
requirements of ss.3807 of the Delaware Business Trust Act, 12 Del. C.ss.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.
DKD/DSG/jmb
Independent Accountant's Acknowledgment Letter
The Stockholders and Board of Directors
State Street Corporation
We are aware of the incorporation by reference in the Registration Statement
(Form S-3 No. 333-00000) and Post-Effective Amendment No. 1 to Registration
Statement (No. 333-49143) on Form S-3 of State Street Corporation for the
registration of its common stock, debt securities, preferred stock and capital
securities, of our reports dated April 14, 1999, July 13, 1999 and October 18,
1999 relating to the unaudited consolidated interim financial statements of
State Street Corporation that are included in its Forms 10-Q for the quarters
ended March 31, 1999, June 30, 1999 and September 30, 1999, respectively.
/s/ Ernst & Young LLP
Ernst & Young LLP
Boston, Massachusetts
April 3, 2000
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 No. 333-00000) and Post-Effective Amendment No.
1 to Registration Statement (No. 333-49143) on Form S-3, and related
Prospectuses of State Street Corporation for the registration of its common
stock, debt securities, preferred stock and capital securities, and to the
incorporation by reference therein of our report dated January 18, 2000, with
respect to the consolidated financial statements of State Street Corporation
included in its Annual Report (Form 10-K) for the year ended December 31, 1999,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
Boston, Massachusetts
April 3, 2000
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)
----------------------------
Bank One Trust Company, National Association
(Exact name of trustee as specified in its charter)
A National Banking Association 31-0838515
(I.R.S. employer
identification number)
100 East Broad Street, Columbus, Ohio 43271-0181
(Address of principal executive offices) (Zip Code)
Bank One Trust Company, N.A.
One North State Street, 9th Floor
Chicago, Illinois 60602
Attn: Sandra L. Caruba, Vice President and Senior Counsel, (312) 336-9436
(Name, address and telephone number of agent for service)
-----------------------------
STATE STREET CORPORATION
(Exact name of obligor as specified in its charter)
Massachusettes 04-2456637
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
225 Franklin Street 02110
Boston, Massachusetts (ZIP Code)
(Address of principal executive offices)
Debt Securities
Guaranties of Capital Securities of State Street Capital Trust II,
State Street Capital Trust III and State Street Capital Trust IV
(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 certificate 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.
<PAGE>
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.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, National Association, 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 State of Illinois, on the 4th day of April,
2000.
Bank One Trust Company, National Association,
Trustee
By /s/ Sandra L. Caruba
Sandra L. Caruba
Vice President
<PAGE>
EXHIBIT 1
A COPY OF THE ARTICLES OF ASSOCIATION OF THE
TRUSTEE NOW IN EFFECT
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
of
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
FIRST. The title of this Association shall be BANK ONE TRUST COMPANY, NATIONAL
ASSOCIATION.
SECOND. The main office of the Association shall be in the City of Columbus,
County of Franklin, State of Ohio.
The business of the Association will be limited to the fiduciary powers and the
support of activities incidental to the exercise of those powers. The
Association will not expand or alter its business beyond that stated in this
article without the prior approval of the Comptroller of the Currency.
THIRD. The Board of Directors of this Association shall consist of not less than
five nor more than twenty-five persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full Board of
Directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director shall own common or preferred stock of
the Association, or of a holding company owning the Association, with an
aggregate par, fair market or equity value of not less than $1,000, as of either
(i) the date of purchase, (ii) the date the person became a director, or (iii)
the date of that person's most recent election to the Board of Directors,
whichever is more recent. Any combination of common or preferred stock of the
Association or holding company may be used.
Any vacancy in the Board of Directors may be filled by action of a majority of
the remaining directors between meetings of shareholders. The Board of Directors
may not increase the number of directors between meetings of shareholders to a
number which: (1) exceeds by more than two the number of directors last elected
by shareholders where the number was 15 or less; or (2) exceeds by more than
four the number of directors last elected by shareholders where the number was
16 or more, but in no event shall the number of directors exceed 25.
Terms of directors, including directors selected to fill vacancies, shall expire
at the next regular meeting of shareholders at which directors are elected,
unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the Board of Directors, without voting power or
power of final decision in matters concerning the business of the Association,
may be appointed by resolution of a majority of the full Board of Directors, or
by resolution of shareholders at any annual or special meeting. Honorary or
advisory directors shall not be counted to
<PAGE>
determine the number of directors of the Association or the presence of a quorum
in connection with any board action, and shall not be required to own qualifying
shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It shall
be held at the main office or any other convenient place the Board of Directors
may designate, on the day of each year specified therefor in the Bylaws or, if
that day falls on a legal holiday in the state in which the Association is
located, on the next following banking day. If no election is held on the day
fixed or in the event of a legal holiday on the following banking day, an
election may be held on any subsequent day within 60 days of the day fixed, to
be designated by the Board of Directors or, if the directors fail to fix the
day, by shareholders representing two-thirds of the shares issued and
outstanding. In all cases at least 10 days advance notice of the meeting shall
be given to the shareholders by first class mail.
In all elections of directors, the number of votes each common shareholder may
cast will be determined by multiplying the number of shares such shareholder
owns by the number of directors to be elected. Those votes may be cumulated and
cast for a single candidate or may be distributed among two or more candidates
in the manner selected by the shareholder. On all other questions, each common
shareholder shall be entitled to one vote for each share of stock held by such
shareholder. If the issuance of preferred stock with voting rights has been
authorized by a vote of shareholders owning a majority of the common stock of
the association, preferred shareholders will have cumulative voting rights and
will be included within the same class as common shareholders, for purposes of
elections of directors.
A director may resign at any time by delivering written notice to the Board of
Directors, its chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of the
affirmative requirements for qualification, or for cause, provided, however,
that a director may not be removed if the number of votes sufficient to elect
him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of this Association shall be
eighty thousand shares of common stock of the par value of ten dollars ($10.00)
each; but said capital stock may be increased or decreased from time to time,
according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time determine and at such
price as the Board of Directors may from time to time fix. Unless otherwise
specified in the Articles of Association or required by law, (1) all matters
requiring shareholder action, including amendments to the Articles of
Association, must be approved by shareholders owning a majority voting interest
in the outstanding voting stock, and (2) each shareholder shall be entitled to
one vote per share.
<PAGE>
Unless otherwise specified in the Articles of Association or required by law,
all shares of voting stock shall be voted together as a class on any matters
requiring shareholder approval. If a proposed amendment would affect two or more
classes or series in the same or a substantially similar way, all the classes or
series so affected must vote together as a single voting group on the proposed
amendment.
Shares of the same class or series may be issued as a dividend on a pro rata
basis and without consideration. Shares of another class or series may be issued
as share dividends in respect of a class or series of stock if approved by a
majority of the votes entitled to be cast by the class or series to be issued
unless there are no outstanding shares of the class or series to be issued.
Unless otherwise provided by the Board of Directors, the record date for
determining shareholders entitled to a share dividend shall be the date the
Board of Directors authorizes the share dividend.
Unless otherwise provided in the Bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close of
business on the day before the first notice is mailed or otherwise sent to the
shareholders, provided that in no event may a record date be more than 70 days
before the meeting.
If a shareholder is entitled to fractional shares pursuant to preemptive rights,
a stock dividend, consolidation or merger, reverse stock split or otherwise, the
Association may: (a) issue fractional shares or; (b) in lieu of the issuance of
fractional shares, issue script or warrants entitling the holder to receive a
full share upon surrendering enough script or warrants to equal a full share;
(c) if there is an established and active market in the Association's stock,
make reasonable arrangements to provide the shareholder with an opportunity to
realize a fair price through sale of the fraction, or purchase of the additional
fraction required for a full share; (d) remit the cash equivalent of the
fraction to the shareholder; or (e) sell full shares representing all the
fractions at public auction or to the highest bidder after having solicited and
received sealed bids from at least three licensed stock brokers, and distribute
the proceeds pro rata to shareholders who otherwise would be entitled to the
fractional shares. The holder of a fractional share is entitled to exercise the
rights for shareholder, including the right to vote, to receive dividends, and
to participate in the assets of the Association upon liquidation, in proportion
to the fractional interest. The holder of script or warrants is not entitled to
any of these rights unless the script or warrants explicitly provide for such
rights. The script or warrants may be subject to such additional conditions as:
(1) that the script or warrants will become void if not exchanged for full
shares before a specified date; and (2) that the shares for which the script or
warrants are exchangeable may be sold at the option of the Association and the
proceeds paid to scriptholders.
The Association, at any time and from time to time, may authorize and issue debt
obligations, whether or not subordinated, without the approval of the
shareholders. Obligations classified as debt, whether or not subordinated, which
may be issued by the Association without the approval of shareholders, do not
carry voting rights on any issue, including an increase or decrease in the
aggregate number of the securities, or the exchange or reclassification of all
or part of securities into securities of another class or series.
SIXTH. The Board of Directors shall appoint one of its members president of this
Association, and one of its members chairperson of the board and shall have the
power to appoint one or more vice presidents, a secretary who shall keep minutes
of the directors' and shareholders' meetings and be responsible for
authenticating the records of the Association, and such other officers and
employees as may be required to transact the
<PAGE>
business of this Association. A duly appointed officer may appoint one or more
officers or assistant officers if authorized by the Board of Directors in
accordance with the Bylaws. The Board of Directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of the
Association.
(2) Delegate the performance of its duties, but not the responsibility for its
duties, to the officers, employees, and agents of the Association.
(3) Fix the compensation and enter into employment contracts with its officers
and employees upon reasonable terms and conditions consistent with
applicable law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and to fix the penalty thereof.
(6) Ratify written policies authorized by the Association's management or
committees of the board.
(7) Regulate the manner in which any increase or decrease of the capital of
the Association shall be made, provided that nothing herein shall restrict
the power of shareholders to increase or decrease the capital of the
association in accordance with law, and nothing shall raise or lower from
two-thirds the percentage for shareholder approval to increase or reduce
the capital.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial Bylaws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of the
Association.
(10) Amend or repeal Bylaws, except to the extent that the Articles of
Association reserve this power in whole or in part to shareholders.
(11) Make contracts.
(12) Generally perform all acts that are legal for a Board of Directors to
perform.
SEVENTH. The Board of Directors shall have the power to change the location of
the main office of this Association to any other place within the limits of the
City of Columbus, State of Ohio, without the approval of the shareholders; and
shall have the power to change the location of the main office of this
Association to any other place outside the limits of the City of Columbus, State
of Ohio, but not more than thirty miles beyond such limits, with the affirmative
vote of shareholders owning two-thirds of the stock of the Association, subject
to receipt of a certificate of approval from the Comptroller of the Currency.
The Board of Directors shall have the power to establish or change the location
of any branch or branches of the Association to any other location permitted
under applicable law without the approval of the shareholders, subject to
approval by the Office of the Comptroller of the Currency. The Board of
Directors shall have the power to establish or change the location of any
nonbranch office or facility of the Association without the approval of the
shareholders.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
<PAGE>
NINTH. The Board of Directors of this Association, or any shareholders owning,
in the aggregate, not less than 20 percent of the stock of this Association, may
call a special meeting of shareholders at any time. Unless otherwise provided by
the Bylaws or the laws of the United States, or waived by shareholders, a notice
of the time, place, and purpose of every annual and special meeting of the
shareholders shall be given by first-class mail, postage prepaid, mailed at
least 10, and no more than 60, days prior to the date of the meeting to each
shareholder of record at his/her address as shown upon the books of this
Association. Unless otherwise provided by the Bylaws, any action requiring
approval of shareholders must be effected at a duly called annual or special
meeting.
TENTH. The Association shall provide indemnification as set forth below:
Every person who is or was a Director, officer or employee of the Association or
of any other corporation which he served as a Director, officer or employee at
the request of the Association as part of his regularly assigned duties may be
indemnified by the Association in accordance with the provisions of this Article
against all liability (including, without limitation, judgments, fines,
penalties, and settlements) and all reasonable expenses (including, without
limitation, attorneys' fees and investigative expenses) that may be incurred or
paid by him in connection with any claim, action, suit or proceeding, whether
civil, criminal or administrative (all referred to hereafter in this Article as
"Claims") or in connection with any appeal relating thereto in which he may
become involved as a party or otherwise or with which he may be threatened by
reason of his being or having been a Director, officer or employee of the
Association or such other corporation, or by reason of any action taken or
omitted by him in his capacity as such Director, officer or employee, whether or
not he continues to be such at the time such liability or expenses are incurred;
provided that nothing contained in this Article shall be construed to permit
indemnification of any such person who is adjudged guilty of, or liable for,
willful misconduct, gross neglect of duty or criminal acts, unless, at the time
such indemnification is sought, such indemnification in such instance is
permissible under applicable law and regulations, including published rulings of
the Comptroller of the Currency or other appropriate supervisory or regulatory
authority; and provided further that there shall be no indemnification of
Directors, officers, or employees against expenses, penalties, or other payments
incurred in an administrative proceeding or action instituted by an appropriate
regulatory agency which proceeding or action results in a final order assessing
civil money penalties or requiring affirmative action by an individual or
individuals in the form of payments to the Association.
Every person who may be indemnified under the provisions of this Article and who
has been wholly successful on the merits with respect to any Claim shall be
entitled to indemnification as of right. Except as provided in the preceding
sentence, any indemnification under this Article shall be at the sole discretion
of the Board of Directors and shall be made only if the Board of Directors or
the Executive Committee acting by a quorum consisting of Directors who are not
parties to such Claim shall find or if independent legal counsel (who may be the
regular counsel of the Association) selected by the Board of Directors or
Executive Committee whether or not a disinterested quorum exists shall render
their opinion that in view of all of the circumstances then surrounding the
Claim, such indemnification is equitable and in the best interests of the
Association. Among the circumstances to be taken into consideration in arriving
at such a finding or opinion is the existence or non-existence of a contract of
insurance or indemnity under which the Association would be wholly or partially
reimbursed for such indemnification, but the existence or non-existence of such
insurance is not the sole circumstance to be considered nor shall it be wholly
determinative of whether such indemnification shall be
<PAGE>
made. In addition to such finding or opinion, no indemnification under this
Article shall be made unless the Board of Directors or the Executive Committee
acting by a quorum consisting of Directors who are not parties to such Claim
shall find or if independent legal counsel (who may be the regular counsel of
the Association) selected by the Board of Directors or Executive Committee
whether or not a disinterested quorum exists shall render their opinion that the
Directors, officer or employee acted in good faith in what he reasonably
believed to be the best interests of the Association or such other corporation
and further in the case of any criminal action or proceeding, that the Director,
officer or employee reasonably believed his conduct to be lawful. Determination
of any Claim by judgment adverse to a Director, officer or employee by
settlement with or without Court approval or conviction upon a plea of guilty or
of nolo contendere or its equivalent shall not create a presumption that a
Director, officer or employee failed to meet the standards of conduct set forth
in this Article. Expenses incurred with respect to any Claim may be advanced by
the Association prior to the final disposition thereof upon receipt of an
undertaking satisfactory to the Association by or on behalf of the recipient to
repay such amount unless it is ultimately determined that he is entitled to
indemnification under this Article.
The rights of indemnification provided in this Article shall be in addition to
any rights to which any Director, officer or employee may otherwise be entitled
by contract or as a matter of law. Every person who shall act as a Director,
officer or employee of this Association shall be conclusively presumed to be
doing so in reliance upon the right of indemnification provided for in this
Article.
ELEVENTH. These Articles of Association may be amended at any regular or special
meeting of the shareholders by the affirmative vote of the holders of a majority
of the stock of this Association, unless the vote of the holders of a greater
amount of stock is required by law, and in that case by the vote of the holders
of such greater amount. The Association's Board of Directors may propose one or
more amendments to the Articles of Association for submission to the
shareholders.
<PAGE>
EXHIBIT 2
A COPY OF THE CERTIFICATE OF AUTHORITY OF THE
TRUSTEE TO COMMENCE BUSINESS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter No.
16235) is a National Banking Association formed under the laws of the United
States and is authorized thereunder to transact the business of banking on the
date of this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
15th day of September, 1999.
/s/ John D. Hawke, Jr.
----------------------
Comptroller of the Currency
<PAGE>
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE TRUSTEE
TO EXERCISE CORPORATE TRUST POWERS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter No.
16235) was granted, under the hand and seal of the Comptroller, the right to act
in all fiduciary capacities authorized under the provisions of the Act of
Congress approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a, and that the
authority so granted remains in full force and effect on the date of this
Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
15th day of September, 1999.
/s/ John D. Hawke, Jr.
----------------------
Comptroller of the Currency
EXHIBIT 4
A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
BY-LAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
<PAGE>
SECTION 1.01. ANNUAL MEETING. The regular annual meeting of the shareholders of
the Bank for the election of Directors and for the transaction of such business
as may properly come before the meeting shall be held at its main office, or
other convenient place duly authorized by the Board of Directors, on the same
day upon which any regular or special Board meeting is held from and including
the first Monday of January to, and including, the fourth Monday of February of
each year, or on the next succeeding banking day, if the day fixed falls on a
legal holiday. If from any cause, an election of Directors is not made on the
day fixed for the regular meeting of the shareholders or, in the event of a
legal holiday, on the next succeeding banking day, the Board of Directors shall
order the election to be held on some subsequent day, as soon thereafter as
practicable, according to the provisions of law; and notice thereof shall be
given in the manner herein provided for the annual meeting. Notice of such
annual meeting shall be given by or under the direction of the Secretary, or
such other officer as may be designated by the Chief Executive Officer, by
first-class mail, postage prepaid, to all shareholders of record of the Bank at
their respective addresses as shown upon the books of the Bank mailed not less
than ten days prior to the date fixed for such meeting.
SECTION 1.02. SPECIAL MEETINGS. A special meeting of the shareholders of the
Bank may be called at any time by the Board of Directors or by any three or more
shareholders owning, in the aggregate, not less than ten percent of the stock of
the Bank. Notice of any special meeting of the shareholders called by the Board
of Directors, stating the time, place and purpose of the meeting, shall be given
by or under the direction of the Secretary, or such other officer as is
designated by the Chief Executive Officer, by first-class mail, postage prepaid,
to all shareholders of record of the Bank at their respective addresses as shown
upon the books of the Bank mailed not less than ten days prior to the date fixed
for such meeting. Any special meeting of shareholders shall be conducted and its
proceedings recorded in the manner prescribed in these By-Laws for annual
meetings of shareholders.
SECTION 1.03. SECRETARY OF MEETING OF SHAREHOLDERS. The Board of Directors may
designate a person to be the secretary of the meeting of shareholders. In the
absence of a presiding officer, as designated by these By-Laws, the Board of
Directors may designate a person to act as the presiding officer. In the event
the Board of Directors fails to designate a person to preside at a meeting of
shareholders and a secretary of such meeting, the shareholders present or
represented shall elect a person to preside and a person to serve as secretary
of the meeting. The secretary of the meeting of shareholders shall cause the
returns made by the judges of election and other proceedings to be recorded in
the minute books of the Bank. The presiding officer shall notify the
Directors-elect of their election and to meet forthwith for the organization of
the new Board of Directors. The minutes of the meeting shall be signed by the
presiding officer and the secretary designated for the meeting.
SECTION 1.04. JUDGES OF ELECTION. The Board of Directors may appoint as many as
three shareholders to be judges of the election, who shall hold and conduct the
same, and who shall, after the election has been held, notify, in writing over
their signatures, the secretary of the meeting of shareholders of the result
thereof and the names of the Directors elected; provided, however, that upon
failure for any reason of any judge or judges of election, so appointed by the
Directors, to serve, the presiding officer of the meeting shall appoint other
shareholders or their proxies to fill the vacancies. The judges of election, at
the request of the chairman of the meeting, shall act as tellers of any other
<PAGE>
vote by ballot taken at such meeting, and shall notify, in writing over their
signature, the secretary of the Board of Directors of the result thereof.
SECTION 1.05. PROXIES. In all elections of Directors, each shareholder of
record, who is qualified to vote under the provisions of Federal Law, shall have
the right to vote the number of shares of record in such shareholder's name for
as many persons as there are Directors to be elected, or to cumulate such shares
as provided by Federal Law. In deciding all other questions at meetings of
shareholders, each shareholder shall be entitled to one vote on each share of
stock of record in such shareholder's name. Shareholders may vote by proxy duly
authorized in writing. All proxies used at the annual meeting shall be secured
for that meeting only, or any adjournment thereof, and shall be dated, if not
dated by the shareholder, as of the date of the receipt thereof. No officer or
employee of this Bank may act as proxy.
SECTION 1.06. QUORUM. Holders of record of a majority of the shares of the
capital stock of the Bank, eligible to be voted, present either in person or by
proxy, shall constitute a quorum for the transaction of business at any meeting
of shareholders, but shareholders present at any meeting and constituting less
than a quorum may, without further notice, adjourn the meeting from time to time
until a quorum is obtained. A majority of the votes cast shall decide every
question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
DIRECTORS
SECTION 2.01. QUALIFICATIONS. Each Director shall have the qualifications
prescribed by law. No person elected as a Director may exercise any of the
powers of office until such Director has taken the oath of such office.
SECTION 2.02. VACANCIES. Directors of the Bank shall hold office for one year or
until their successors are elected and qualified. Any vacancy in the Board shall
be filled by appointment of the remaining Directors, and any Director so
appointed shall hold office until the next election.
SECTION 2.03. ORGANIZATION MEETING. The Directors elected by the shareholders
shall meet for organization of the new Board of Directors at the time and place
fixed by the presiding officer of the annual meeting. If at the time fixed for
such meeting there is no quorum present, the Directors in attendance may adjourn
from time to time until a quorum is obtained. A majority of the number of
Directors elected by the shareholders shall constitute a quorum for the
transaction of business.
SECTION 2.04. REGULAR MEETINGS. The regular meetings of the Board of Directors
shall be held at such date, time and place as the Board may previously
designate, or should the Board fail to so designate, at such date, time and
place as the Chairman of the Board, Chief Executive Officer, or President may
fix. Whenever a quorum is not present, the Directors in attendance shall adjourn
the meeting to a time not later than the date fixed by the By-Laws for the next
succeeding regular meeting of the Board. Members of the Board of Directors may
participate in such meetings through use of conference telephone or
<PAGE>
similar communications equipment, so long as all members participating in such
meetings can hear one another.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the Board of Directors shall
be held at the call of the Chairman of the Board, Chief Executive Officer, or
President, or at the request of two or more Directors. Any special meeting may
be held at such place and at such time as may be fixed in the call. Written or
oral notice shall be given to each Director not later than the day next
preceding the day on which the special meeting is to be held, which notice may
be waived in writing. The presence of a Director at any meeting of the Board of
Directors shall be deemed a waiver of notice thereof by such Director. Whenever
a quorum is not present, the Directors in attendance shall adjourn the special
meeting from day to day until a quorum is obtained. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.06. QUORUM. A majority of the Directors shall constitute a quorum at
any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as herein
defined, but at least one-third and not less than two of the authorized number
of Directors are present at a meeting of the Directors, business of the Bank may
be transacted and matters before the Board approved or disapproved by the
unanimous vote of the Directors present.
SECTION 2.07. COMPENSATION. Each member of the Board of Directors shall receive
such fees for attendance at Board and Board committee meetings and such fees for
service as a Director, irrespective of meeting attendance, as from time to time
are fixed by resolution of the Board; provided, however, that payment hereunder
shall not be made to a Director for meetings attended and/or Board service which
are not for the Bank's sole benefit and which are concurrent and duplicative
with meetings attended or Board service for an affiliate of the Bank for which
the Director receives payment; and provided further that fees hereunder shall
not be paid in the case of any Director in the regular employment of the Bank or
of one of its affiliates. Each member of the Board of Directors, whether or not
such Director is in the regular employment of the Bank or of one of its
affiliates, shall be reimbursed for travel expenses incident to attendance at
Board and Board committee meetings.
SECTION 2.08. EXECUTIVE COMMITTEE. There may be a standing committee of the
Board of Directors known as the Executive Committee which shall possess and
exercise, when the Board is not in session, all the powers of the Board that may
lawfully be delegated. The Executive Committee shall consist of at least three
Board members, one of whom shall be the Chairman of the Board, Chief Executive
Officer or the President. The other members of the Executive Committee shall be
appointed by the Chairman of the Board, the Chief Executive Officer, or the
President, with the approval of the Board, and who shall continue as members of
the Executive Committee until their successors are appointed, provided, however,
that any member of the Executive Committee may be removed by the Board upon a
majority vote thereof at any regular or special meeting of the Board. The
Chairman, Chief Executive Officer, or President shall fill any vacancy in the
Executive Committee by the appointment of another Director, subject to the
approval of
<PAGE>
the Board of Directors. The Executive Committee shall meet at the call of the
Chairman, Chief Executive Officer, or President or any two members thereof at
such time or times and place as may be designated. In the event of the absence
of any member or members of the Executive Committee, the presiding member may
appoint a member or members of the Board to fill the place or places of such
absent member or members to serve during such absence. Two members of the
Executive Committee shall constitute a quorum. When neither the Chairman of the
Board, the Chief Executive Officer, nor President are present, the Executive
Committee shall appoint a presiding officer. The Executive Committee shall
report its proceedings and the action taken by it to the Board of Directors.
SECTION 2.09. OTHER COMMITTEES. The Board of Directors may appoint such special
committees from time to time as are in its judgment necessary in the interest of
the Bank.
ARTICLE III
OFFICERS, MANAGEMENT STAFF AND EMPLOYEES
SECTION 3.01. OFFICERS AND MANAGEMENT STAFF. (a) The executive officers of the
Bank shall include a Chairman of the Board, Chief Executive Officer, President,
Chief Financial Officer, Secretary, Security Officer, and may include one or
more Senior Managing Directors or Managing Directors. The Chairman of the Board,
Chief Executive Officer, President, any Senior Managing Director, any Managing
Director, Chief Financial Officer, Secretary, and Security Officer shall be
elected by the Board. The Chairman of the Board, Chief Executive Officer, and
the President shall be elected by the Board from their own number. Such officers
as the Board shall elect from their own number shall hold office from the date
of their election as officers until the organization meeting of the Board of
Directors following the next annual meeting of shareholders, provided, however,
that such officers may be relieved of their duties at any time by action of the
Board of Directors, in which event all the powers incident to their office shall
immediately terminate. The Chairman of the Board, Chief Executive Officer, or
the President shall preside at all meetings of shareholders and meetings of the
Board of Directors.
(b) The management staff of the Bank shall include officers elected by the
Board, officers appointed by the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and such other persons in the employment of the Bank
who, pursuant to authorization by a duly authorized officer of the Bank, perform
management functions and have management responsibilities. Any two or more
offices may be held by the same person except that no person shall hold the
office of Chairman of the Board, Chief Executive Officer and/or President and at
the same time also hold the office of Secretary.
(c) Except as provided in the case of the elected officers who are members of
the Board, all officers and employees, whether elected or appointed, shall hold
office at the pleasure of the Board. Except as otherwise limited by law or these
By-Laws, the Board assigns to the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and/or each of their respective designees the authority
to control all personnel, including elected and appointed officers and employees
of the Bank, to employ or direct the employment of such officers and
<PAGE>
employees as he or she may deem necessary, including the fixing of salaries and
the dismissal of such officers and employees at pleasure, and to define and
prescribe the duties and responsibilities of all officers and employees of the
Bank, subject to such further limitations and directions as he or she may from
time to time deem appropriate.
(d) The Chairman of the Board, the Chief Executive Officer, the President, any
Senior Managing Director, any Managing Director, the Chief Financial Officer,
and any other officer of the Bank, to the extent that such officer is authorized
in writing by the Chairman of the Board, the Chief Executive Officer, the
President, any Senior Managing Director, any Managing Director, or the Chief
Financial Officer may appoint persons other than officers who are in employment
of the Bank to serve in management positions and in connection therewith, the
appointing officer may assign such title, salary, responsibilities and functions
as are deemed appropriate, provided, however, that nothing contained herein
shall be construed as placing any limitation on the authority of the Chairman of
the Board, the Chief Executive Officer, the President, any Senior Managing
Director, any Managing Director, or the Chief Financial Officer as provided in
this and other sections of these By-Laws.
(e) The Senior Managing Directors and the Managing Directors of the Bank shall
have general and active authority over the management of the business of the
Bank, shall see that all orders and resolutions of the Board of Directors are
carried into effect, and shall do or cause to be done all things necessary or
proper to carry on the business of the Bank in accordance with provisions of
applicable law and regulations. Each Senior Managing Director and Managing
Director shall perform all duties incident to his or her office and such other
and further duties, as may from time to time be required by the Chief Executive
Officer, the President, the Board of Directors, or the shareholders. The
specification of authority in these By-Laws wherever and to whomever granted
shall not be construed to limit in any manner the general powers of delegation
granted to a Senior Managing Director or a Managing Director in conducting the
business of the Bank. In the absence of a Senior Managing Director or a Managing
Director, such officer as is designated by the Senior Managing Director or the
Managing Director shall be vested with all the powers and perform all the duties
of the Senior Managing Director or the Managing Director as defined by these
By-Laws.
(f) Each Managing Director who is assigned oversight of one or more trust
service offices shall appoint a management committee known as the Investment
Management and Trust Committee consisting of the Managing Director of the trust
service offices and at least three other members who shall be capable and
experienced officers of the Bank appointed from time to time by the Managing
Director and who shall continue as members of the Investment Management and
Trust Committee until their successors are appointed, provided, however, that
any member of the Investment Management and Trust Committee may be removed by
the Managing Director as provided in this and other sections of these By-Laws.
The Managing Director shall fill any vacancy in the Investment Management and
Trust Committee by the appointment of another capable and experienced officer of
the Bank. Each Investment Management and Trust Committee shall meet at such
date, time and place as the Managing Director shall fix. In the event of the
absence of any member or members of the Investment Management and Trust
Committee, the Managing Director may, in his or her discretion, appoint another
officer of the Bank to fill the place or places of such absent member or members
to serve during such absence. A majority of each Investment Management and Trust
Committee shall constitute a quorum. Each Investment
<PAGE>
Management and Trust Committee shall carry out the policies of the Bank, as
adopted by the Board of Directors, which shall be formulated and executed in
accordance with State and Federal Law, Regulations of the Comptroller of the
Currency, and sound fiduciary principles. In carrying out the policies of the
Bank, each Investment Management and Trust Committee is hereby authorized to
establish management teams whose duties and responsibilities shall be
specifically set forth in the policies of the Bank. Each such management team
shall report such proceedings and the actions taken thereby to the Investment
Management and Trust Committee. Each Managing Director shall then report such
proceedings and the actions taken thereby to the Board of Directors.
SECTION 3.02. POWERS AND DUTIES OF MANAGEMENT STAFF. Pursuant to the fiduciary
powers granted to this Bank under the provisions of Federal Law and Regulations
of the Comptroller of the Currency, the Chairman of the Board, the Chief
Executive Officer, the President, the Senior Managing Directors, the Managing
Directors, the Chief Financial Officer, and those officers so designated and
authorized by the Chairman of the Board, the Chief Executive Officer, the
President, the Senior Managing Directors, the Managing Directors, or the Chief
Financial Officer are authorized for and on behalf of the Bank, and to the
extent permitted by law, to make loans and discounts; to purchase or acquire
drafts, notes, stocks, bonds, and other securities for investment of funds held
by the Bank; to execute and purchase acceptances; to appoint, empower and direct
all necessary agents and attorneys; to sign and give any notice required to be
given; to demand payment and/or to declare due for any default any debt or
obligation due or payable to the Bank upon demand or authorized to be declared
due; to foreclose any mortgages; to exercise any option, privilege or election
to forfeit, terminate, extend or renew any lease; to authorize and direct any
proceedings for the collection of any money or for the enforcement of any right
or obligation; to adjust, settle and compromise all claims of every kind and
description in favor of or against the Bank, and to give receipts, releases and
discharges therefor; to borrow money and in connection therewith to make,
execute and deliver notes, bonds or other evidences of indebtedness; to pledge
or hypothecate any securities or any stocks, bonds, notes or any property real
or personal held or owned by the Bank, or to rediscount any notes or other
obligations held or owned by the Bank, whenever in his or her judgment it is
reasonably necessary for the operation of the Bank; and in furtherance of and in
addition to the powers hereinabove set forth to do all such acts and to take all
such proceedings as in his or her judgment are necessary and incidental to the
operation of the Bank.
SECTION 3.03. SECRETARY. The Secretary or such other officers as may be
designated by the Chief Executive Officer shall have supervision and control of
the records of the Bank and, subject to the direction of the Chief Executive
Officer, shall undertake other duties and functions usually performed by a
corporate secretary. Other officers may be designated by the Secretary as
Assistant Secretary to perform the duties of the Secretary.
SECTION 3.04. EXECUTION OF DOCUMENTS. Any member of the Bank's management staff
or any employee of the Bank designated as an officer on the Bank's payroll
system is hereby authorized for and on behalf of the Bank to sell, assign,
lease, mortgage, transfer, deliver and convey any real or personal property,
including shares of stock, bonds, notes, certificates of indebtedness (including
the assignment and redemption of registered United States obligations) and all
other forms of intangible property now or hereafter owned by or standing in the
name of the Bank, or its nominee, or held by the Bank as collateral security,
<PAGE>
or standing in the name of the Bank, or its nominee, in any fiduciary capacity
or in the name of any principal for whom this Bank may now or hereafter be
acting under a power of attorney or as agent, and to execute and deliver such
partial releases from any discharges or assignments of mortgages and assignments
or surrender of insurance policies, deeds, contracts, assignments or other
papers or documents as may be appropriate in the circumstances now or hereafter
held by the Bank in its own name, in a fiduciary capacity, or owned by any
principal for whom this Bank may now or hereafter be acting under a power of
attorney or as agent; provided, however, that, when necessary, the signature of
any such person shall be attested or witnessed in each case by another officer
of the Bank. Any member of the Bank's management staff or any employee of the
Bank designated as an officer on the Bank's payroll system is hereby authorized
for and on behalf of the Bank to execute any indemnity and fidelity bonds, trust
agreements, proxies or other papers or documents of like or different character
necessary, desirable or incidental to the appointment of the Bank in any
fiduciary capacity, the conduct of its business in any fiduciary capacity, or
the conduct of its other banking business; to sign and issue checks, drafts,
orders for the payment of money and certificates of deposit; to sign and endorse
bills of exchange, to sign and countersign foreign and domestic letters of
credit, to receive and receipt for payments of principal, interest, dividends,
rents, fees and payments of every kind and description paid to the Bank, to sign
receipts for money or other property acquired by or entrusted to the Bank, to
guarantee the genuineness of signatures on assignments of stocks, bonds or other
securities, to sign certifications of checks, to endorse and deliver checks,
drafts, warrants, bills, notes, certificates of deposit and acceptances in all
business transactions of the Bank; also to foreclose any mortgage, to execute
and deliver receipts for any money or property; also to sign stock certificates
for and on behalf of this Bank as transfer agent or registrar, and to
authenticate bonds, debentures, land or lease trust certificates or other forms
of security issued pursuant to any indenture under which this Bank now or
hereafter is acting as trustee or in any other fiduciary capacity; to execute
and deliver various forms of documents or agreements necessary to effectuate
certain investment strategies for various fiduciary or custody customers of the
Bank, including, without limitation, exchange funds, options, both listed and
over-the-counter, commodities trading, futures trading, hedge funds, limited
partnerships, venture capital funds, swap or collar transactions and other
similar investment vehicles for which the Bank now or in the future may deem
appropriate for investment of fiduciary customers or in which non-fiduciary
customers may direct investment by the Bank.
Without limitation on the foregoing, the Chief Executive Officer, Chairman of
the Board, or President of the Bank shall have the authority from time to time
to appoint officers of the Bank as Vice President for the sole purpose of
executing releases or other documents incidental to the conduct of the Bank's
business in any fiduciary capacity where required by state law or the governing
document. In addition, other persons in the employment of the Bank or its
affiliates may be authorized by the Chief Executive Officer, Chairman of the
Board, President, Senior Managing Directors, Managing Directors, or Chief
Financial Officer to perform acts and to execute the documents described in the
paragraph above, subject, however, to such limitations and conditions as are
contained in the authorization given to such person.
<PAGE>
SECTION 3.05. PERFORMANCE BOND. All officers and employees of the Bank shall be
bonded for the honest and faithful performance of their duties for such amount
as may be prescribed by the Board of Directors.
ARTICLE IV
STOCKS AND STOCK CERTIFICATES
SECTION 4.01. STOCK CERTIFICATES. The shares of stock of the Bank shall be
evidenced by certificates which shall bear the signature of the Chairman of the
Board, the Chief Executive Officer, or the President (which signature may be
engraved, printed or impressed), and shall be signed manually by the Secretary,
or any other officer appointed by the Chief Executive Officer for that purpose.
In case any such officer who has signed or whose facsimile signature has been
placed upon such certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Bank with the same effect as if
such officer had not ceased to be such at the time of its issue. Each such
certificate shall bear the corporate seal of the Bank, shall recite on its face
that stock represented thereby is transferable only upon the books of the Bank
when properly endorsed and shall recite such other information as is required by
law and deemed appropriate by the Board. The corporate seal may be facsimile
engraved or printed.
SECTION 4.02. STOCK ISSUE AND TRANSFER. The shares of stock of the Bank shall be
transferable only upon the stock transfer books of the Bank and, except as
hereinafter provided, no transfer shall be made or new certificates issued
except upon the surrender for cancellation of the certificate or certificates
previously issued therefor. In the case of the loss, theft, or destruction of
any certificate, a new certificate may be issued in place of such certificate
upon the furnishing of an affidavit setting forth the circumstances of such
loss, theft, or destruction and indemnity satisfactory to the Chairman of the
Board, the Chief Executive Officer, or the President. The Board of Directors or
the Chairman of the Board, Chief Executive Officer, or the President may
authorize the issuance of a new certificate therefor without the furnishing of
indemnity. Stock transfer books, in which all transfers of stock shall be
recorded, shall be provided. The stock transfer books may be closed for a
reasonable period and under such conditions as the Board of Directors may at any
time determine, for any meeting of shareholders, the payment of dividends or any
other lawful purpose. In lieu of closing the transfer books, the Board of
Directors may, in its discretion, fix a record date and hour constituting a
reasonable period prior to the day designated for the holding of any meeting of
the shareholders or the day appointed for the payment of any dividend, or for
any other purpose at the time as of which shareholders entitled to notice of and
to vote at any such meeting or to receive such dividend or to be treated as
shareholders for such other purpose shall be determined, and only shareholders
of record at such time shall be entitled to notice of or to vote at such meeting
or to receive such dividends or to be treated as shareholders for such other
purpose.
ARTICLE V
MISCELLANEOUS PROVISIONS
<PAGE>
SECTION 5.01. SEAL. The seal of the Bank shall be circular in form with "SEAL"
in the center, and the name "BANK ONE TRUST COMPANY, NA" located clockwise
around the upper half of the seal.
SECTION 5.02. MINUTE BOOK. The organization papers of this Bank, the Articles of
Association, the returns of judges of elections, the By-Laws and any amendments
thereto, the proceedings of all regular and special meetings of the shareholders
and of the Board of Directors, and reports of the committees of the Board of
Directors shall be recorded in the minute books of the Bank. The minutes of each
such meeting shall be signed by the presiding officer and attested by the
secretary of the meeting.
SECTION 5.03. CORPORATE POWERS. The corporate existence of the Bank shall
continue until terminated in accordance with the laws of the United States. The
purpose of the Bank shall be to carry on the general business of a commercial
bank trust department and to engage in such activities as are necessary,
incident, or related to such business. The Articles of Association of the Bank
shall not be amended, or any other provision added elsewhere in the Articles
expanding the powers of the Bank, without the prior approval of the Comptroller
of the Currency.
SECTION 5.04. AMENDMENT OF BY-LAWS. The By-Laws may be amended, altered or
repealed, at any regular or special meeting of the Board of Directors, by a vote
of a majority of the Directors.
As amended April 24, 1991 Section 3.01 (Officers and Management Staff)
Section 3.02 (Chief Executive Officer)
Section 3.03 (Powers and Duties of Officers and
Management Staff)
Section 3.05 (Execution of Documents)
As amended January 27, 1995 Section 2.04 (Regular Meetings)
Section 2.05 (Special Meetings)
Section 3.01(f) (Officers and Management Staff)
Section 3.03(e) (Powers and Duties of Officers
and Management Staff)
Section 5.01 (Seal)
Amended and restated in its entirety effective May 1, 1996
As amended August 1, 1996 Section 2.09 (Trust Examining Committee)
Section 2.10 (Other Committees)
As amended October 16, 1997 Section 3.01 (Officers and Management Staff)
Section 3.02 (Powers and Duties of Officers and
Management Staff)
Section 3.04 (Execution of Documents)
<PAGE>
As amended January 1, 1998 Section 1.01 (Annual Meeting)
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
April 4, 2000
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an indenture State Street Corporation
and Bank One Trust Company, National Association, as Trustee, 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,
Bank One Trust Company, National Association
By: /s/ Sandra L. Caruba
Sandra L. Caruba
Vice President
<PAGE>
EXHIBIT 7
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/99 State #: 391581 FFIEC 032
Address: 100 Broad Street Vendor ID: D Cert #: 21377 Page RC-1
City, State Zip: Columbus, OH 43271 Transit #: 04400003
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in thousands C300
------
RCON BIL MIL THOU
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCON
a. Noninterest-bearing balances and currency and coin(1) ........... 0081 123,692 1.a
b. Interest-bearing balances(2) .................................... 0071 17,687 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 5,860 2.b
3. Federal funds sold and securities purchased under agreements to
resell ............................................................. 1350 364,813 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCON
RC-C) .............................................................. 2122 58,020 4.a
b. LESS: Allowance for loan and lease losses ....................... 3123 10 4.b
c. LESS: Allocated transfer risk reserve ........................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCON
reserve (item 4.a minus 4.b and 4.c) ............................ 2125 58,010 4.d
5. Trading assets (from Schedule RD-D) ................................ 3545 0 5.
6. Premises and fixed assets (including capitalized leases) ........... 2145 22,547 6.
7. Other real estate owned (from Schedule RC-M) ....................... 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) ..................................... 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding ....... 2155 0 9.
10. Intangible assets (from Schedule RC-M) ............................. 2143 27,151 10.
11. Other assets (from Schedule RC-F) .................................. 2160 141,759 11.
12. Total assets (sum of items 1 through 11) ........................... 2170 761,519 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> <C> <C> <C> <C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/99 State #: 391581 FFIEC 032
Address: 100 East Broad Street Vendor ID: D Cert #" 21377 Page RC-2
City, State Zip: Columbus, OH 43271 Transit #: 04400003
</TABLE>
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part 1) ........................................... 2200 589,846 13.a
(1) Noninterest-bearing(1) ............................................ 6631 517,140 13.a1
(2) Interest-bearing .................................................. 6636 72,706 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)
(1) Noninterest bearing
(2) Interest-bearing
14. Federal funds purchased and securities sold under agreements
to repurchase: ........................................................... RCFD
2800 0 14
15. a. Demand notes issued to the U.S. Treasury .............................. RCON
2840 0 15.a
b. Trading Liabilities(from Sechedule RC-D) .............................. RCFD
3548 0 15.b
16. Other borrowed money: RCON
a. With original maturity of one year or less ............................ 2332 0 16.a
b. With original maturity of more than one year .......................... A547 0 16.b
c. With original maturity of more than three years ....................... A548 0 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding .................. 2920 0 18.
19. Subordinated notes and debentures ........................................ 3200 0 19.
20. Other liabilities (from Schedule RC-G) ................................... 2930 63,244 20.
21. Total liabilities (sum of items 13 through 20) ........................... 2948 653,090 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ............................ 3838 0 23.
24. Common stock ............................................................. 3230 800 24.
25. Surplus (exclude all surplus related to preferred stock) ................. 3839 45,157 25.
26. a. Undivided profits and capital reserves ................................ 3632 62,458 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities ............................................................ 8434 14 26.b
c. Accumulated net gains (losses) on cash flow hedges .................... 4336 0 26.c
27. Cumulative foreign currency translation adjustments
28. Total equity capital (sum of items 23 through 27) ........................ 3210 108,429 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) .................................... 3300 761,519 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.
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)
----------------------------
Bank One Trust Company, National Association
(Exact name of trustee as specified in its charter)
A National Banking Association 31-0838515
(I.R.S. employer
identification number)
100 East Broad Street, Columbus, Ohio 43271-0181
(Address of principal executive offices) (Zip Code)
Bank One Trust Company, N.A.
One North State Street, 9th Floor
Chicago, Illinois 60602
Attn: Sandra L. Caruba, Vice President and Senior Counsel, (312) 336-9436
(Name, address and telephone number of agent for service)
-----------------------------
STATE STREET CAPITAL TRUST II
(Exact name of obligor as specified in its charter)
Delaware 13-7147835
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
225 Franklin Street 02110
Boston, Massachusetts (ZIP Code)
(Address of principal executive offices)
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 certificate 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.
<PAGE>
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.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, National Association, 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 State of Illinois, on the 4th day of April,
2000.
Bank One Trust Company, National Association,
Trustee
By /s/ Sandra L. Caruba
Sandra L. Caruba
Vice President
<PAGE>
EXHIBIT 1
A COPY OF THE ARTICLES OF ASSOCIATION OF THE
TRUSTEE NOW IN EFFECT
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
of
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
FIRST. The title of this Association shall be BANK ONE TRUST COMPANY, NATIONAL
ASSOCIATION.
SECOND. The main office of the Association shall be in the City of Columbus,
County of Franklin, State of Ohio.
The business of the Association will be limited to the fiduciary powers and the
support of activities incidental to the exercise of those powers. The
Association will not expand or alter its business beyond that stated in this
article without the prior approval of the Comptroller of the Currency.
THIRD. The Board of Directors of this Association shall consist of not less than
five nor more than twenty-five persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full Board of
Directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director shall own common or preferred stock of
the Association, or of a holding company owning the Association, with an
aggregate par, fair market or equity value of not less than $1,000, as of either
(i) the date of purchase, (ii) the date the person became a director, or (iii)
the date of that person's most recent election to the Board of Directors,
whichever is more recent. Any combination of common or preferred stock of the
Association or holding company may be used.
Any vacancy in the Board of Directors may be filled by action of a majority of
the remaining directors between meetings of shareholders. The Board of Directors
may not increase the number of directors between meetings of shareholders to a
number which: (1) exceeds by more than two the number of directors last elected
by shareholders where the number was 15 or less; or (2) exceeds by more than
four the number of directors last elected by shareholders where the number was
16 or more, but in no event shall the number of directors exceed 25.
Terms of directors, including directors selected to fill vacancies, shall expire
at the next regular meeting of shareholders at which directors are elected,
unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the Board of Directors, without voting power or
power of final decision in matters concerning the business of the Association,
may be appointed by resolution of a majority of the full Board of Directors, or
by resolution of shareholders at any annual or special meeting. Honorary or
advisory directors shall not be counted to
<PAGE>
determine the number of directors of the Association or the presence of a quorum
in connection with any board action, and shall not be required to own qualifying
shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It shall
be held at the main office or any other convenient place the Board of Directors
may designate, on the day of each year specified therefor in the Bylaws or, if
that day falls on a legal holiday in the state in which the Association is
located, on the next following banking day. If no election is held on the day
fixed or in the event of a legal holiday on the following banking day, an
election may be held on any subsequent day within 60 days of the day fixed, to
be designated by the Board of Directors or, if the directors fail to fix the
day, by shareholders representing two-thirds of the shares issued and
outstanding. In all cases at least 10 days advance notice of the meeting shall
be given to the shareholders by first class mail.
In all elections of directors, the number of votes each common shareholder may
cast will be determined by multiplying the number of shares such shareholder
owns by the number of directors to be elected. Those votes may be cumulated and
cast for a single candidate or may be distributed among two or more candidates
in the manner selected by the shareholder. On all other questions, each common
shareholder shall be entitled to one vote for each share of stock held by such
shareholder. If the issuance of preferred stock with voting rights has been
authorized by a vote of shareholders owning a majority of the common stock of
the association, preferred shareholders will have cumulative voting rights and
will be included within the same class as common shareholders, for purposes of
elections of directors.
A director may resign at any time by delivering written notice to the Board of
Directors, its chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of the
affirmative requirements for qualification, or for cause, provided, however,
that a director may not be removed if the number of votes sufficient to elect
him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of this Association shall be
eighty thousand shares of common stock of the par value of ten dollars ($10.00)
each; but said capital stock may be increased or decreased from time to time,
according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time determine and at such
price as the Board of Directors may from time to time fix. Unless otherwise
specified in the Articles of Association or required by law, (1) all matters
requiring shareholder action, including amendments to the Articles of
Association, must be approved by shareholders owning a majority voting interest
in the outstanding voting stock, and (2) each shareholder shall be entitled to
one vote per share.
<PAGE>
Unless otherwise specified in the Articles of Association or required by law,
all shares of voting stock shall be voted together as a class on any matters
requiring shareholder approval. If a proposed amendment would affect two or more
classes or series in the same or a substantially similar way, all the classes or
series so affected must vote together as a single voting group on the proposed
amendment.
Shares of the same class or series may be issued as a dividend on a pro rata
basis and without consideration. Shares of another class or series may be issued
as share dividends in respect of a class or series of stock if approved by a
majority of the votes entitled to be cast by the class or series to be issued
unless there are no outstanding shares of the class or series to be issued.
Unless otherwise provided by the Board of Directors, the record date for
determining shareholders entitled to a share dividend shall be the date the
Board of Directors authorizes the share dividend.
Unless otherwise provided in the Bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close of
business on the day before the first notice is mailed or otherwise sent to the
shareholders, provided that in no event may a record date be more than 70 days
before the meeting.
If a shareholder is entitled to fractional shares pursuant to preemptive rights,
a stock dividend, consolidation or merger, reverse stock split or otherwise, the
Association may: (a) issue fractional shares or; (b) in lieu of the issuance of
fractional shares, issue script or warrants entitling the holder to receive a
full share upon surrendering enough script or warrants to equal a full share;
(c) if there is an established and active market in the Association's stock,
make reasonable arrangements to provide the shareholder with an opportunity to
realize a fair price through sale of the fraction, or purchase of the additional
fraction required for a full share; (d) remit the cash equivalent of the
fraction to the shareholder; or (e) sell full shares representing all the
fractions at public auction or to the highest bidder after having solicited and
received sealed bids from at least three licensed stock brokers, and distribute
the proceeds pro rata to shareholders who otherwise would be entitled to the
fractional shares. The holder of a fractional share is entitled to exercise the
rights for shareholder, including the right to vote, to receive dividends, and
to participate in the assets of the Association upon liquidation, in proportion
to the fractional interest. The holder of script or warrants is not entitled to
any of these rights unless the script or warrants explicitly provide for such
rights. The script or warrants may be subject to such additional conditions as:
(1) that the script or warrants will become void if not exchanged for full
shares before a specified date; and (2) that the shares for which the script or
warrants are exchangeable may be sold at the option of the Association and the
proceeds paid to scriptholders.
The Association, at any time and from time to time, may authorize and issue debt
obligations, whether or not subordinated, without the approval of the
shareholders. Obligations classified as debt, whether or not subordinated, which
may be issued by the Association without the approval of shareholders, do not
carry voting rights on any issue, including an increase or decrease in the
aggregate number of the securities, or the exchange or reclassification of all
or part of securities into securities of another class or series.
SIXTH. The Board of Directors shall appoint one of its members president of this
Association, and one of its members chairperson of the board and shall have the
power to appoint one or more vice presidents, a secretary who shall keep minutes
of the directors' and shareholders' meetings and be responsible for
authenticating the records of the Association, and such other officers and
employees as may be required to transact the
<PAGE>
business of this Association. A duly appointed officer may appoint one or more
officers or assistant officers if authorized by the Board of Directors in
accordance with the Bylaws. The Board of Directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of the
Association.
(2) Delegate the performance of its duties, but not the responsibility for its
duties, to the officers, employees, and agents of the Association.
(3) Fix the compensation and enter into employment contracts with its officers
and employees upon reasonable terms and conditions consistent with
applicable law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and to fix the penalty thereof.
(6) Ratify written policies authorized by the Association's management or
committees of the board.
(7) Regulate the manner in which any increase or decrease of the capital of
the Association shall be made, provided that nothing herein shall restrict
the power of shareholders to increase or decrease the capital of the
association in accordance with law, and nothing shall raise or lower from
two-thirds the percentage for shareholder approval to increase or reduce
the capital.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial Bylaws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of the
Association.
(10) Amend or repeal Bylaws, except to the extent that the Articles of
Association reserve this power in whole or in part to shareholders.
(11) Make contracts.
(12) Generally perform all acts that are legal for a Board of Directors to
perform.
SEVENTH. The Board of Directors shall have the power to change the location of
the main office of this Association to any other place within the limits of the
City of Columbus, State of Ohio, without the approval of the shareholders; and
shall have the power to change the location of the main office of this
Association to any other place outside the limits of the City of Columbus, State
of Ohio, but not more than thirty miles beyond such limits, with the affirmative
vote of shareholders owning two-thirds of the stock of the Association, subject
to receipt of a certificate of approval from the Comptroller of the Currency.
The Board of Directors shall have the power to establish or change the location
of any branch or branches of the Association to any other location permitted
under applicable law without the approval of the shareholders, subject to
approval by the Office of the Comptroller of the Currency. The Board of
Directors shall have the power to establish or change the location of any
nonbranch office or facility of the Association without the approval of the
shareholders.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
<PAGE>
NINTH. The Board of Directors of this Association, or any shareholders owning,
in the aggregate, not less than 20 percent of the stock of this Association, may
call a special meeting of shareholders at any time. Unless otherwise provided by
the Bylaws or the laws of the United States, or waived by shareholders, a notice
of the time, place, and purpose of every annual and special meeting of the
shareholders shall be given by first-class mail, postage prepaid, mailed at
least 10, and no more than 60, days prior to the date of the meeting to each
shareholder of record at his/her address as shown upon the books of this
Association. Unless otherwise provided by the Bylaws, any action requiring
approval of shareholders must be effected at a duly called annual or special
meeting.
TENTH. The Association shall provide indemnification as set forth below:
Every person who is or was a Director, officer or employee of the Association or
of any other corporation which he served as a Director, officer or employee at
the request of the Association as part of his regularly assigned duties may be
indemnified by the Association in accordance with the provisions of this Article
against all liability (including, without limitation, judgments, fines,
penalties, and settlements) and all reasonable expenses (including, without
limitation, attorneys' fees and investigative expenses) that may be incurred or
paid by him in connection with any claim, action, suit or proceeding, whether
civil, criminal or administrative (all referred to hereafter in this Article as
"Claims") or in connection with any appeal relating thereto in which he may
become involved as a party or otherwise or with which he may be threatened by
reason of his being or having been a Director, officer or employee of the
Association or such other corporation, or by reason of any action taken or
omitted by him in his capacity as such Director, officer or employee, whether or
not he continues to be such at the time such liability or expenses are incurred;
provided that nothing contained in this Article shall be construed to permit
indemnification of any such person who is adjudged guilty of, or liable for,
willful misconduct, gross neglect of duty or criminal acts, unless, at the time
such indemnification is sought, such indemnification in such instance is
permissible under applicable law and regulations, including published rulings of
the Comptroller of the Currency or other appropriate supervisory or regulatory
authority; and provided further that there shall be no indemnification of
Directors, officers, or employees against expenses, penalties, or other payments
incurred in an administrative proceeding or action instituted by an appropriate
regulatory agency which proceeding or action results in a final order assessing
civil money penalties or requiring affirmative action by an individual or
individuals in the form of payments to the Association.
Every person who may be indemnified under the provisions of this Article and who
has been wholly successful on the merits with respect to any Claim shall be
entitled to indemnification as of right. Except as provided in the preceding
sentence, any indemnification under this Article shall be at the sole discretion
of the Board of Directors and shall be made only if the Board of Directors or
the Executive Committee acting by a quorum consisting of Directors who are not
parties to such Claim shall find or if independent legal counsel (who may be the
regular counsel of the Association) selected by the Board of Directors or
Executive Committee whether or not a disinterested quorum exists shall render
their opinion that in view of all of the circumstances then surrounding the
Claim, such indemnification is equitable and in the best interests of the
Association. Among the circumstances to be taken into consideration in arriving
at such a finding or opinion is the existence or non-existence of a contract of
insurance or indemnity under which the Association would be wholly or partially
reimbursed for such indemnification, but the existence or non-existence of such
insurance is not the sole circumstance to be considered nor shall it be wholly
determinative of whether such indemnification shall be
<PAGE>
made. In addition to such finding or opinion, no indemnification under this
Article shall be made unless the Board of Directors or the Executive Committee
acting by a quorum consisting of Directors who are not parties to such Claim
shall find or if independent legal counsel (who may be the regular counsel of
the Association) selected by the Board of Directors or Executive Committee
whether or not a disinterested quorum exists shall render their opinion that the
Directors, officer or employee acted in good faith in what he reasonably
believed to be the best interests of the Association or such other corporation
and further in the case of any criminal action or proceeding, that the Director,
officer or employee reasonably believed his conduct to be lawful. Determination
of any Claim by judgment adverse to a Director, officer or employee by
settlement with or without Court approval or conviction upon a plea of guilty or
of nolo contendere or its equivalent shall not create a presumption that a
Director, officer or employee failed to meet the standards of conduct set forth
in this Article. Expenses incurred with respect to any Claim may be advanced by
the Association prior to the final disposition thereof upon receipt of an
undertaking satisfactory to the Association by or on behalf of the recipient to
repay such amount unless it is ultimately determined that he is entitled to
indemnification under this Article.
The rights of indemnification provided in this Article shall be in addition to
any rights to which any Director, officer or employee may otherwise be entitled
by contract or as a matter of law. Every person who shall act as a Director,
officer or employee of this Association shall be conclusively presumed to be
doing so in reliance upon the right of indemnification provided for in this
Article.
ELEVENTH. These Articles of Association may be amended at any regular or special
meeting of the shareholders by the affirmative vote of the holders of a majority
of the stock of this Association, unless the vote of the holders of a greater
amount of stock is required by law, and in that case by the vote of the holders
of such greater amount. The Association's Board of Directors may propose one or
more amendments to the Articles of Association for submission to the
shareholders.
<PAGE>
EXHIBIT 2
A COPY OF THE CERTIFICATE OF AUTHORITY OF THE
TRUSTEE TO COMMENCE BUSINESS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter No.
16235) is a National Banking Association formed under the laws of the United
States and is authorized thereunder to transact the business of banking on the
date of this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
15th day of September, 1999.
/s/ John D. Hawke, Jr.
----------------------
Comptroller of the Currency
<PAGE>
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE TRUSTEE
TO EXERCISE CORPORATE TRUST POWERS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter No.
16235) was granted, under the hand and seal of the Comptroller, the right to act
in all fiduciary capacities authorized under the provisions of the Act of
Congress approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a, and that the
authority so granted remains in full force and effect on the date of this
Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
15th day of September, 1999.
/s/ John D. Hawke, Jr.
----------------------
Comptroller of the Currency
EXHIBIT 4
A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
BY-LAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
<PAGE>
SECTION 1.01. ANNUAL MEETING. The regular annual meeting of the shareholders of
the Bank for the election of Directors and for the transaction of such business
as may properly come before the meeting shall be held at its main office, or
other convenient place duly authorized by the Board of Directors, on the same
day upon which any regular or special Board meeting is held from and including
the first Monday of January to, and including, the fourth Monday of February of
each year, or on the next succeeding banking day, if the day fixed falls on a
legal holiday. If from any cause, an election of Directors is not made on the
day fixed for the regular meeting of the shareholders or, in the event of a
legal holiday, on the next succeeding banking day, the Board of Directors shall
order the election to be held on some subsequent day, as soon thereafter as
practicable, according to the provisions of law; and notice thereof shall be
given in the manner herein provided for the annual meeting. Notice of such
annual meeting shall be given by or under the direction of the Secretary, or
such other officer as may be designated by the Chief Executive Officer, by
first-class mail, postage prepaid, to all shareholders of record of the Bank at
their respective addresses as shown upon the books of the Bank mailed not less
than ten days prior to the date fixed for such meeting.
SECTION 1.02. SPECIAL MEETINGS. A special meeting of the shareholders of the
Bank may be called at any time by the Board of Directors or by any three or more
shareholders owning, in the aggregate, not less than ten percent of the stock of
the Bank. Notice of any special meeting of the shareholders called by the Board
of Directors, stating the time, place and purpose of the meeting, shall be given
by or under the direction of the Secretary, or such other officer as is
designated by the Chief Executive Officer, by first-class mail, postage prepaid,
to all shareholders of record of the Bank at their respective addresses as shown
upon the books of the Bank mailed not less than ten days prior to the date fixed
for such meeting. Any special meeting of shareholders shall be conducted and its
proceedings recorded in the manner prescribed in these By-Laws for annual
meetings of shareholders.
SECTION 1.03. SECRETARY OF MEETING OF SHAREHOLDERS. The Board of Directors may
designate a person to be the secretary of the meeting of shareholders. In the
absence of a presiding officer, as designated by these By-Laws, the Board of
Directors may designate a person to act as the presiding officer. In the event
the Board of Directors fails to designate a person to preside at a meeting of
shareholders and a secretary of such meeting, the shareholders present or
represented shall elect a person to preside and a person to serve as secretary
of the meeting. The secretary of the meeting of shareholders shall cause the
returns made by the judges of election and other proceedings to be recorded in
the minute books of the Bank. The presiding officer shall notify the
Directors-elect of their election and to meet forthwith for the organization of
the new Board of Directors. The minutes of the meeting shall be signed by the
presiding officer and the secretary designated for the meeting.
SECTION 1.04. JUDGES OF ELECTION. The Board of Directors may appoint as many as
three shareholders to be judges of the election, who shall hold and conduct the
same, and who shall, after the election has been held, notify, in writing over
their signatures, the secretary of the meeting of shareholders of the result
thereof and the names of the Directors elected; provided, however, that upon
failure for any reason of any judge or judges of election, so appointed by the
Directors, to serve, the presiding officer of the meeting shall appoint other
shareholders or their proxies to fill the vacancies. The judges of election, at
the request of the chairman of the meeting, shall act as tellers of any other
<PAGE>
vote by ballot taken at such meeting, and shall notify, in writing over their
signature, the secretary of the Board of Directors of the result thereof.
SECTION 1.05. PROXIES. In all elections of Directors, each shareholder of
record, who is qualified to vote under the provisions of Federal Law, shall have
the right to vote the number of shares of record in such shareholder's name for
as many persons as there are Directors to be elected, or to cumulate such shares
as provided by Federal Law. In deciding all other questions at meetings of
shareholders, each shareholder shall be entitled to one vote on each share of
stock of record in such shareholder's name. Shareholders may vote by proxy duly
authorized in writing. All proxies used at the annual meeting shall be secured
for that meeting only, or any adjournment thereof, and shall be dated, if not
dated by the shareholder, as of the date of the receipt thereof. No officer or
employee of this Bank may act as proxy.
SECTION 1.06. QUORUM. Holders of record of a majority of the shares of the
capital stock of the Bank, eligible to be voted, present either in person or by
proxy, shall constitute a quorum for the transaction of business at any meeting
of shareholders, but shareholders present at any meeting and constituting less
than a quorum may, without further notice, adjourn the meeting from time to time
until a quorum is obtained. A majority of the votes cast shall decide every
question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
DIRECTORS
SECTION 2.01. QUALIFICATIONS. Each Director shall have the qualifications
prescribed by law. No person elected as a Director may exercise any of the
powers of office until such Director has taken the oath of such office.
SECTION 2.02. VACANCIES. Directors of the Bank shall hold office for one year or
until their successors are elected and qualified. Any vacancy in the Board shall
be filled by appointment of the remaining Directors, and any Director so
appointed shall hold office until the next election.
SECTION 2.03. ORGANIZATION MEETING. The Directors elected by the shareholders
shall meet for organization of the new Board of Directors at the time and place
fixed by the presiding officer of the annual meeting. If at the time fixed for
such meeting there is no quorum present, the Directors in attendance may adjourn
from time to time until a quorum is obtained. A majority of the number of
Directors elected by the shareholders shall constitute a quorum for the
transaction of business.
SECTION 2.04. REGULAR MEETINGS. The regular meetings of the Board of Directors
shall be held at such date, time and place as the Board may previously
designate, or should the Board fail to so designate, at such date, time and
place as the Chairman of the Board, Chief Executive Officer, or President may
fix. Whenever a quorum is not present, the Directors in attendance shall adjourn
the meeting to a time not later than the date fixed by the By-Laws for the next
succeeding regular meeting of the Board. Members of the Board of Directors may
participate in such meetings through use of conference telephone or
<PAGE>
similar communications equipment, so long as all members participating in such
meetings can hear one another.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the Board of Directors shall
be held at the call of the Chairman of the Board, Chief Executive Officer, or
President, or at the request of two or more Directors. Any special meeting may
be held at such place and at such time as may be fixed in the call. Written or
oral notice shall be given to each Director not later than the day next
preceding the day on which the special meeting is to be held, which notice may
be waived in writing. The presence of a Director at any meeting of the Board of
Directors shall be deemed a waiver of notice thereof by such Director. Whenever
a quorum is not present, the Directors in attendance shall adjourn the special
meeting from day to day until a quorum is obtained. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.06. QUORUM. A majority of the Directors shall constitute a quorum at
any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as herein
defined, but at least one-third and not less than two of the authorized number
of Directors are present at a meeting of the Directors, business of the Bank may
be transacted and matters before the Board approved or disapproved by the
unanimous vote of the Directors present.
SECTION 2.07. COMPENSATION. Each member of the Board of Directors shall receive
such fees for attendance at Board and Board committee meetings and such fees for
service as a Director, irrespective of meeting attendance, as from time to time
are fixed by resolution of the Board; provided, however, that payment hereunder
shall not be made to a Director for meetings attended and/or Board service which
are not for the Bank's sole benefit and which are concurrent and duplicative
with meetings attended or Board service for an affiliate of the Bank for which
the Director receives payment; and provided further that fees hereunder shall
not be paid in the case of any Director in the regular employment of the Bank or
of one of its affiliates. Each member of the Board of Directors, whether or not
such Director is in the regular employment of the Bank or of one of its
affiliates, shall be reimbursed for travel expenses incident to attendance at
Board and Board committee meetings.
SECTION 2.08. EXECUTIVE COMMITTEE. There may be a standing committee of the
Board of Directors known as the Executive Committee which shall possess and
exercise, when the Board is not in session, all the powers of the Board that may
lawfully be delegated. The Executive Committee shall consist of at least three
Board members, one of whom shall be the Chairman of the Board, Chief Executive
Officer or the President. The other members of the Executive Committee shall be
appointed by the Chairman of the Board, the Chief Executive Officer, or the
President, with the approval of the Board, and who shall continue as members of
the Executive Committee until their successors are appointed, provided, however,
that any member of the Executive Committee may be removed by the Board upon a
majority vote thereof at any regular or special meeting of the Board. The
Chairman, Chief Executive Officer, or President shall fill any vacancy in the
Executive Committee by the appointment of another Director, subject to the
approval of
<PAGE>
the Board of Directors. The Executive Committee shall meet at the call of the
Chairman, Chief Executive Officer, or President or any two members thereof at
such time or times and place as may be designated. In the event of the absence
of any member or members of the Executive Committee, the presiding member may
appoint a member or members of the Board to fill the place or places of such
absent member or members to serve during such absence. Two members of the
Executive Committee shall constitute a quorum. When neither the Chairman of the
Board, the Chief Executive Officer, nor President are present, the Executive
Committee shall appoint a presiding officer. The Executive Committee shall
report its proceedings and the action taken by it to the Board of Directors.
SECTION 2.09. OTHER COMMITTEES. The Board of Directors may appoint such special
committees from time to time as are in its judgment necessary in the interest of
the Bank.
ARTICLE III
OFFICERS, MANAGEMENT STAFF AND EMPLOYEES
SECTION 3.01. OFFICERS AND MANAGEMENT STAFF. (a) The executive officers of the
Bank shall include a Chairman of the Board, Chief Executive Officer, President,
Chief Financial Officer, Secretary, Security Officer, and may include one or
more Senior Managing Directors or Managing Directors. The Chairman of the Board,
Chief Executive Officer, President, any Senior Managing Director, any Managing
Director, Chief Financial Officer, Secretary, and Security Officer shall be
elected by the Board. The Chairman of the Board, Chief Executive Officer, and
the President shall be elected by the Board from their own number. Such officers
as the Board shall elect from their own number shall hold office from the date
of their election as officers until the organization meeting of the Board of
Directors following the next annual meeting of shareholders, provided, however,
that such officers may be relieved of their duties at any time by action of the
Board of Directors, in which event all the powers incident to their office shall
immediately terminate. The Chairman of the Board, Chief Executive Officer, or
the President shall preside at all meetings of shareholders and meetings of the
Board of Directors.
(b) The management staff of the Bank shall include officers elected by the
Board, officers appointed by the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and such other persons in the employment of the Bank
who, pursuant to authorization by a duly authorized officer of the Bank, perform
management functions and have management responsibilities. Any two or more
offices may be held by the same person except that no person shall hold the
office of Chairman of the Board, Chief Executive Officer and/or President and at
the same time also hold the office of Secretary.
(c) Except as provided in the case of the elected officers who are members of
the Board, all officers and employees, whether elected or appointed, shall hold
office at the pleasure of the Board. Except as otherwise limited by law or these
By-Laws, the Board assigns to the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and/or each of their respective designees the authority
to control all personnel, including elected and appointed officers and employees
of the Bank, to employ or direct the employment of such officers and
<PAGE>
employees as he or she may deem necessary, including the fixing of salaries and
the dismissal of such officers and employees at pleasure, and to define and
prescribe the duties and responsibilities of all officers and employees of the
Bank, subject to such further limitations and directions as he or she may from
time to time deem appropriate.
(d) The Chairman of the Board, the Chief Executive Officer, the President, any
Senior Managing Director, any Managing Director, the Chief Financial Officer,
and any other officer of the Bank, to the extent that such officer is authorized
in writing by the Chairman of the Board, the Chief Executive Officer, the
President, any Senior Managing Director, any Managing Director, or the Chief
Financial Officer may appoint persons other than officers who are in employment
of the Bank to serve in management positions and in connection therewith, the
appointing officer may assign such title, salary, responsibilities and functions
as are deemed appropriate, provided, however, that nothing contained herein
shall be construed as placing any limitation on the authority of the Chairman of
the Board, the Chief Executive Officer, the President, any Senior Managing
Director, any Managing Director, or the Chief Financial Officer as provided in
this and other sections of these By-Laws.
(e) The Senior Managing Directors and the Managing Directors of the Bank shall
have general and active authority over the management of the business of the
Bank, shall see that all orders and resolutions of the Board of Directors are
carried into effect, and shall do or cause to be done all things necessary or
proper to carry on the business of the Bank in accordance with provisions of
applicable law and regulations. Each Senior Managing Director and Managing
Director shall perform all duties incident to his or her office and such other
and further duties, as may from time to time be required by the Chief Executive
Officer, the President, the Board of Directors, or the shareholders. The
specification of authority in these By-Laws wherever and to whomever granted
shall not be construed to limit in any manner the general powers of delegation
granted to a Senior Managing Director or a Managing Director in conducting the
business of the Bank. In the absence of a Senior Managing Director or a Managing
Director, such officer as is designated by the Senior Managing Director or the
Managing Director shall be vested with all the powers and perform all the duties
of the Senior Managing Director or the Managing Director as defined by these
By-Laws.
(f) Each Managing Director who is assigned oversight of one or more trust
service offices shall appoint a management committee known as the Investment
Management and Trust Committee consisting of the Managing Director of the trust
service offices and at least three other members who shall be capable and
experienced officers of the Bank appointed from time to time by the Managing
Director and who shall continue as members of the Investment Management and
Trust Committee until their successors are appointed, provided, however, that
any member of the Investment Management and Trust Committee may be removed by
the Managing Director as provided in this and other sections of these By-Laws.
The Managing Director shall fill any vacancy in the Investment Management and
Trust Committee by the appointment of another capable and experienced officer of
the Bank. Each Investment Management and Trust Committee shall meet at such
date, time and place as the Managing Director shall fix. In the event of the
absence of any member or members of the Investment Management and Trust
Committee, the Managing Director may, in his or her discretion, appoint another
officer of the Bank to fill the place or places of such absent member or members
to serve during such absence. A majority of each Investment Management and Trust
Committee shall constitute a quorum. Each Investment
<PAGE>
Management and Trust Committee shall carry out the policies of the Bank, as
adopted by the Board of Directors, which shall be formulated and executed in
accordance with State and Federal Law, Regulations of the Comptroller of the
Currency, and sound fiduciary principles. In carrying out the policies of the
Bank, each Investment Management and Trust Committee is hereby authorized to
establish management teams whose duties and responsibilities shall be
specifically set forth in the policies of the Bank. Each such management team
shall report such proceedings and the actions taken thereby to the Investment
Management and Trust Committee. Each Managing Director shall then report such
proceedings and the actions taken thereby to the Board of Directors.
SECTION 3.02. POWERS AND DUTIES OF MANAGEMENT STAFF. Pursuant to the fiduciary
powers granted to this Bank under the provisions of Federal Law and Regulations
of the Comptroller of the Currency, the Chairman of the Board, the Chief
Executive Officer, the President, the Senior Managing Directors, the Managing
Directors, the Chief Financial Officer, and those officers so designated and
authorized by the Chairman of the Board, the Chief Executive Officer, the
President, the Senior Managing Directors, the Managing Directors, or the Chief
Financial Officer are authorized for and on behalf of the Bank, and to the
extent permitted by law, to make loans and discounts; to purchase or acquire
drafts, notes, stocks, bonds, and other securities for investment of funds held
by the Bank; to execute and purchase acceptances; to appoint, empower and direct
all necessary agents and attorneys; to sign and give any notice required to be
given; to demand payment and/or to declare due for any default any debt or
obligation due or payable to the Bank upon demand or authorized to be declared
due; to foreclose any mortgages; to exercise any option, privilege or election
to forfeit, terminate, extend or renew any lease; to authorize and direct any
proceedings for the collection of any money or for the enforcement of any right
or obligation; to adjust, settle and compromise all claims of every kind and
description in favor of or against the Bank, and to give receipts, releases and
discharges therefor; to borrow money and in connection therewith to make,
execute and deliver notes, bonds or other evidences of indebtedness; to pledge
or hypothecate any securities or any stocks, bonds, notes or any property real
or personal held or owned by the Bank, or to rediscount any notes or other
obligations held or owned by the Bank, whenever in his or her judgment it is
reasonably necessary for the operation of the Bank; and in furtherance of and in
addition to the powers hereinabove set forth to do all such acts and to take all
such proceedings as in his or her judgment are necessary and incidental to the
operation of the Bank.
SECTION 3.03. SECRETARY. The Secretary or such other officers as may be
designated by the Chief Executive Officer shall have supervision and control of
the records of the Bank and, subject to the direction of the Chief Executive
Officer, shall undertake other duties and functions usually performed by a
corporate secretary. Other officers may be designated by the Secretary as
Assistant Secretary to perform the duties of the Secretary.
SECTION 3.04. EXECUTION OF DOCUMENTS. Any member of the Bank's management staff
or any employee of the Bank designated as an officer on the Bank's payroll
system is hereby authorized for and on behalf of the Bank to sell, assign,
lease, mortgage, transfer, deliver and convey any real or personal property,
including shares of stock, bonds, notes, certificates of indebtedness (including
the assignment and redemption of registered United States obligations) and all
other forms of intangible property now or hereafter owned by or standing in the
name of the Bank, or its nominee, or held by the Bank as collateral security,
<PAGE>
or standing in the name of the Bank, or its nominee, in any fiduciary capacity
or in the name of any principal for whom this Bank may now or hereafter be
acting under a power of attorney or as agent, and to execute and deliver such
partial releases from any discharges or assignments of mortgages and assignments
or surrender of insurance policies, deeds, contracts, assignments or other
papers or documents as may be appropriate in the circumstances now or hereafter
held by the Bank in its own name, in a fiduciary capacity, or owned by any
principal for whom this Bank may now or hereafter be acting under a power of
attorney or as agent; provided, however, that, when necessary, the signature of
any such person shall be attested or witnessed in each case by another officer
of the Bank. Any member of the Bank's management staff or any employee of the
Bank designated as an officer on the Bank's payroll system is hereby authorized
for and on behalf of the Bank to execute any indemnity and fidelity bonds, trust
agreements, proxies or other papers or documents of like or different character
necessary, desirable or incidental to the appointment of the Bank in any
fiduciary capacity, the conduct of its business in any fiduciary capacity, or
the conduct of its other banking business; to sign and issue checks, drafts,
orders for the payment of money and certificates of deposit; to sign and endorse
bills of exchange, to sign and countersign foreign and domestic letters of
credit, to receive and receipt for payments of principal, interest, dividends,
rents, fees and payments of every kind and description paid to the Bank, to sign
receipts for money or other property acquired by or entrusted to the Bank, to
guarantee the genuineness of signatures on assignments of stocks, bonds or other
securities, to sign certifications of checks, to endorse and deliver checks,
drafts, warrants, bills, notes, certificates of deposit and acceptances in all
business transactions of the Bank; also to foreclose any mortgage, to execute
and deliver receipts for any money or property; also to sign stock certificates
for and on behalf of this Bank as transfer agent or registrar, and to
authenticate bonds, debentures, land or lease trust certificates or other forms
of security issued pursuant to any indenture under which this Bank now or
hereafter is acting as trustee or in any other fiduciary capacity; to execute
and deliver various forms of documents or agreements necessary to effectuate
certain investment strategies for various fiduciary or custody customers of the
Bank, including, without limitation, exchange funds, options, both listed and
over-the-counter, commodities trading, futures trading, hedge funds, limited
partnerships, venture capital funds, swap or collar transactions and other
similar investment vehicles for which the Bank now or in the future may deem
appropriate for investment of fiduciary customers or in which non-fiduciary
customers may direct investment by the Bank.
Without limitation on the foregoing, the Chief Executive Officer, Chairman of
the Board, or President of the Bank shall have the authority from time to time
to appoint officers of the Bank as Vice President for the sole purpose of
executing releases or other documents incidental to the conduct of the Bank's
business in any fiduciary capacity where required by state law or the governing
document. In addition, other persons in the employment of the Bank or its
affiliates may be authorized by the Chief Executive Officer, Chairman of the
Board, President, Senior Managing Directors, Managing Directors, or Chief
Financial Officer to perform acts and to execute the documents described in the
paragraph above, subject, however, to such limitations and conditions as are
contained in the authorization given to such person.
<PAGE>
SECTION 3.05. PERFORMANCE BOND. All officers and employees of the Bank shall be
bonded for the honest and faithful performance of their duties for such amount
as may be prescribed by the Board of Directors.
ARTICLE IV
STOCKS AND STOCK CERTIFICATES
SECTION 4.01. STOCK CERTIFICATES. The shares of stock of the Bank shall be
evidenced by certificates which shall bear the signature of the Chairman of the
Board, the Chief Executive Officer, or the President (which signature may be
engraved, printed or impressed), and shall be signed manually by the Secretary,
or any other officer appointed by the Chief Executive Officer for that purpose.
In case any such officer who has signed or whose facsimile signature has been
placed upon such certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Bank with the same effect as if
such officer had not ceased to be such at the time of its issue. Each such
certificate shall bear the corporate seal of the Bank, shall recite on its face
that stock represented thereby is transferable only upon the books of the Bank
when properly endorsed and shall recite such other information as is required by
law and deemed appropriate by the Board. The corporate seal may be facsimile
engraved or printed.
SECTION 4.02. STOCK ISSUE AND TRANSFER. The shares of stock of the Bank shall be
transferable only upon the stock transfer books of the Bank and, except as
hereinafter provided, no transfer shall be made or new certificates issued
except upon the surrender for cancellation of the certificate or certificates
previously issued therefor. In the case of the loss, theft, or destruction of
any certificate, a new certificate may be issued in place of such certificate
upon the furnishing of an affidavit setting forth the circumstances of such
loss, theft, or destruction and indemnity satisfactory to the Chairman of the
Board, the Chief Executive Officer, or the President. The Board of Directors or
the Chairman of the Board, Chief Executive Officer, or the President may
authorize the issuance of a new certificate therefor without the furnishing of
indemnity. Stock transfer books, in which all transfers of stock shall be
recorded, shall be provided. The stock transfer books may be closed for a
reasonable period and under such conditions as the Board of Directors may at any
time determine, for any meeting of shareholders, the payment of dividends or any
other lawful purpose. In lieu of closing the transfer books, the Board of
Directors may, in its discretion, fix a record date and hour constituting a
reasonable period prior to the day designated for the holding of any meeting of
the shareholders or the day appointed for the payment of any dividend, or for
any other purpose at the time as of which shareholders entitled to notice of and
to vote at any such meeting or to receive such dividend or to be treated as
shareholders for such other purpose shall be determined, and only shareholders
of record at such time shall be entitled to notice of or to vote at such meeting
or to receive such dividends or to be treated as shareholders for such other
purpose.
ARTICLE V
MISCELLANEOUS PROVISIONS
<PAGE>
SECTION 5.01. SEAL. The seal of the Bank shall be circular in form with "SEAL"
in the center, and the name "BANK ONE TRUST COMPANY, NA" located clockwise
around the upper half of the seal.
SECTION 5.02. MINUTE BOOK. The organization papers of this Bank, the Articles of
Association, the returns of judges of elections, the By-Laws and any amendments
thereto, the proceedings of all regular and special meetings of the shareholders
and of the Board of Directors, and reports of the committees of the Board of
Directors shall be recorded in the minute books of the Bank. The minutes of each
such meeting shall be signed by the presiding officer and attested by the
secretary of the meeting.
SECTION 5.03. CORPORATE POWERS. The corporate existence of the Bank shall
continue until terminated in accordance with the laws of the United States. The
purpose of the Bank shall be to carry on the general business of a commercial
bank trust department and to engage in such activities as are necessary,
incident, or related to such business. The Articles of Association of the Bank
shall not be amended, or any other provision added elsewhere in the Articles
expanding the powers of the Bank, without the prior approval of the Comptroller
of the Currency.
SECTION 5.04. AMENDMENT OF BY-LAWS. The By-Laws may be amended, altered or
repealed, at any regular or special meeting of the Board of Directors, by a vote
of a majority of the Directors.
As amended April 24, 1991 Section 3.01 (Officers and Management Staff)
Section 3.02 (Chief Executive Officer)
Section 3.03 (Powers and Duties of Officers and
Management Staff)
Section 3.05 (Execution of Documents)
As amended January 27, 1995 Section 2.04 (Regular Meetings)
Section 2.05 (Special Meetings)
Section 3.01(f) (Officers and Management Staff)
Section 3.03(e) (Powers and Duties of Officers
and Management Staff)
Section 5.01 (Seal)
Amended and restated in its entirety effective May 1, 1996
As amended August 1, 1996 Section 2.09 (Trust Examining Committee)
Section 2.10 (Other Committees)
As amended October 16, 1997 Section 3.01 (Officers and Management Staff)
Section 3.02 (Powers and Duties of Officers and
Management Staff)
Section 3.04 (Execution of Documents)
<PAGE>
As amended January 1, 1998 Section 1.01 (Annual Meeting)
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
April 4, 2000
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an amended and restated declaration of
trust between State Street Capital Trust II and Bank One Trust Company, National
Association, as Trustee, 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,
Bank One Trust Company, National Association
By: /s/ Sandra L. Caruba
Sandra L. Caruba
Vice President
<PAGE>
EXHIBIT 7
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/99 State #: 391581 FFIEC 032
Address: 100 Broad Street Vendor ID: D Cert #: 21377 Page RC-1
City, State Zip: Columbus, OH 43271 Transit #: 04400003
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in thousands C300
------
RCON BIL MIL THOU
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCON
a. Noninterest-bearing balances and currency and coin(1) ........... 0081 123,692 1.a
b. Interest-bearing balances(2) .................................... 0071 17,687 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 5,860 2.b
3. Federal funds sold and securities purchased under agreements to
resell ............................................................. 1350 364,813 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCON
RC-C) .............................................................. 2122 58,020 4.a
b. LESS: Allowance for loan and lease losses ....................... 3123 10 4.b
c. LESS: Allocated transfer risk reserve ........................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCON
reserve (item 4.a minus 4.b and 4.c) ............................ 2125 58,010 4.d
5. Trading assets (from Schedule RD-D) ................................ 3545 0 5.
6. Premises and fixed assets (including capitalized leases) ........... 2145 22,547 6.
7. Other real estate owned (from Schedule RC-M) ....................... 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) ..................................... 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding ....... 2155 0 9.
10. Intangible assets (from Schedule RC-M) ............................. 2143 27,151 10.
11. Other assets (from Schedule RC-F) .................................. 2160 141,759 11.
12. Total assets (sum of items 1 through 11) ........................... 2170 761,519 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> <C> <C> <C> <C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/99 State #: 391581 FFIEC 032
Address: 100 East Broad Street Vendor ID: D Cert #" 21377 Page RC-2
City, State Zip: Columbus, OH 43271 Transit #: 04400003
</TABLE>
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part 1) ........................................... 2200 589,846 13.a
(1) Noninterest-bearing(1) ............................................ 6631 517,140 13.a1
(2) Interest-bearing .................................................. 6636 72,706 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)
(1) Noninterest bearing
(2) Interest-bearing
14. Federal funds purchased and securities sold under agreements
to repurchase: ........................................................... RCFD
2800 0 14
15. a. Demand notes issued to the U.S. Treasury .............................. RCON
2840 0 15.a
b. Trading Liabilities(from Sechedule RC-D) .............................. RCFD
3548 0 15.b
16. Other borrowed money: RCON
a. With original maturity of one year or less ............................ 2332 0 16.a
b. With original maturity of more than one year .......................... A547 0 16.b
c. With original maturity of more than three years ....................... A548 0 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding .................. 2920 0 18.
19. Subordinated notes and debentures ........................................ 3200 0 19.
20. Other liabilities (from Schedule RC-G) ................................... 2930 63,244 20.
21. Total liabilities (sum of items 13 through 20) ........................... 2948 653,090 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ............................ 3838 0 23.
24. Common stock ............................................................. 3230 800 24.
25. Surplus (exclude all surplus related to preferred stock) ................. 3839 45,157 25.
26. a. Undivided profits and capital reserves ................................ 3632 62,458 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities ............................................................ 8434 14 26.b
c. Accumulated net gains (losses) on cash flow hedges .................... 4336 0 26.c
27. Cumulative foreign currency translation adjustments
28. Total equity capital (sum of items 23 through 27) ........................ 3210 108,429 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) .................................... 3300 761,519 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.
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)
----------------------------
Bank One Trust Company, National Association
(Exact name of trustee as specified in its charter)
A National Banking Association 31-0838515
(I.R.S. employer
identification number)
100 East Broad Street, Columbus, Ohio 43271-0181
(Address of principal executive offices) (Zip Code)
Bank One Trust Company, N.A.
One North State Street, 9th Floor
Chicago, Illinois 60602
Attn: Sandra L. Caruba, Vice President and Senior Counsel, (312) 336-9436
(Name, address and telephone number of agent for service)
-----------------------------
STATE STREET CAPITAL TRUST III
(Exact name of obligor as specified in its charter)
Delaware 13-7147836
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
225 Franklin Street 02110
Boston, Massachusetts (ZIP Code)
(Address of principal executive offices)
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 certificate 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.
<PAGE>
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.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, National Association, 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 State of Illinois, on the 4th day of April,
2000.
Bank One Trust Company, National Association,
Trustee
By /s/ Sandra L. Caruba
Sandra L. Caruba
Vice President
<PAGE>
EXHIBIT 1
A COPY OF THE ARTICLES OF ASSOCIATION OF THE
TRUSTEE NOW IN EFFECT
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
of
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
FIRST. The title of this Association shall be BANK ONE TRUST COMPANY, NATIONAL
ASSOCIATION.
SECOND. The main office of the Association shall be in the City of Columbus,
County of Franklin, State of Ohio.
The business of the Association will be limited to the fiduciary powers and the
support of activities incidental to the exercise of those powers. The
Association will not expand or alter its business beyond that stated in this
article without the prior approval of the Comptroller of the Currency.
THIRD. The Board of Directors of this Association shall consist of not less than
five nor more than twenty-five persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full Board of
Directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director shall own common or preferred stock of
the Association, or of a holding company owning the Association, with an
aggregate par, fair market or equity value of not less than $1,000, as of either
(i) the date of purchase, (ii) the date the person became a director, or (iii)
the date of that person's most recent election to the Board of Directors,
whichever is more recent. Any combination of common or preferred stock of the
Association or holding company may be used.
Any vacancy in the Board of Directors may be filled by action of a majority of
the remaining directors between meetings of shareholders. The Board of Directors
may not increase the number of directors between meetings of shareholders to a
number which: (1) exceeds by more than two the number of directors last elected
by shareholders where the number was 15 or less; or (2) exceeds by more than
four the number of directors last elected by shareholders where the number was
16 or more, but in no event shall the number of directors exceed 25.
Terms of directors, including directors selected to fill vacancies, shall expire
at the next regular meeting of shareholders at which directors are elected,
unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the Board of Directors, without voting power or
power of final decision in matters concerning the business of the Association,
may be appointed by resolution of a majority of the full Board of Directors, or
by resolution of shareholders at any annual or special meeting. Honorary or
advisory directors shall not be counted to
<PAGE>
determine the number of directors of the Association or the presence of a quorum
in connection with any board action, and shall not be required to own qualifying
shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It shall
be held at the main office or any other convenient place the Board of Directors
may designate, on the day of each year specified therefor in the Bylaws or, if
that day falls on a legal holiday in the state in which the Association is
located, on the next following banking day. If no election is held on the day
fixed or in the event of a legal holiday on the following banking day, an
election may be held on any subsequent day within 60 days of the day fixed, to
be designated by the Board of Directors or, if the directors fail to fix the
day, by shareholders representing two-thirds of the shares issued and
outstanding. In all cases at least 10 days advance notice of the meeting shall
be given to the shareholders by first class mail.
In all elections of directors, the number of votes each common shareholder may
cast will be determined by multiplying the number of shares such shareholder
owns by the number of directors to be elected. Those votes may be cumulated and
cast for a single candidate or may be distributed among two or more candidates
in the manner selected by the shareholder. On all other questions, each common
shareholder shall be entitled to one vote for each share of stock held by such
shareholder. If the issuance of preferred stock with voting rights has been
authorized by a vote of shareholders owning a majority of the common stock of
the association, preferred shareholders will have cumulative voting rights and
will be included within the same class as common shareholders, for purposes of
elections of directors.
A director may resign at any time by delivering written notice to the Board of
Directors, its chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of the
affirmative requirements for qualification, or for cause, provided, however,
that a director may not be removed if the number of votes sufficient to elect
him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of this Association shall be
eighty thousand shares of common stock of the par value of ten dollars ($10.00)
each; but said capital stock may be increased or decreased from time to time,
according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time determine and at such
price as the Board of Directors may from time to time fix. Unless otherwise
specified in the Articles of Association or required by law, (1) all matters
requiring shareholder action, including amendments to the Articles of
Association, must be approved by shareholders owning a majority voting interest
in the outstanding voting stock, and (2) each shareholder shall be entitled to
one vote per share.
<PAGE>
Unless otherwise specified in the Articles of Association or required by law,
all shares of voting stock shall be voted together as a class on any matters
requiring shareholder approval. If a proposed amendment would affect two or more
classes or series in the same or a substantially similar way, all the classes or
series so affected must vote together as a single voting group on the proposed
amendment.
Shares of the same class or series may be issued as a dividend on a pro rata
basis and without consideration. Shares of another class or series may be issued
as share dividends in respect of a class or series of stock if approved by a
majority of the votes entitled to be cast by the class or series to be issued
unless there are no outstanding shares of the class or series to be issued.
Unless otherwise provided by the Board of Directors, the record date for
determining shareholders entitled to a share dividend shall be the date the
Board of Directors authorizes the share dividend.
Unless otherwise provided in the Bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close of
business on the day before the first notice is mailed or otherwise sent to the
shareholders, provided that in no event may a record date be more than 70 days
before the meeting.
If a shareholder is entitled to fractional shares pursuant to preemptive rights,
a stock dividend, consolidation or merger, reverse stock split or otherwise, the
Association may: (a) issue fractional shares or; (b) in lieu of the issuance of
fractional shares, issue script or warrants entitling the holder to receive a
full share upon surrendering enough script or warrants to equal a full share;
(c) if there is an established and active market in the Association's stock,
make reasonable arrangements to provide the shareholder with an opportunity to
realize a fair price through sale of the fraction, or purchase of the additional
fraction required for a full share; (d) remit the cash equivalent of the
fraction to the shareholder; or (e) sell full shares representing all the
fractions at public auction or to the highest bidder after having solicited and
received sealed bids from at least three licensed stock brokers, and distribute
the proceeds pro rata to shareholders who otherwise would be entitled to the
fractional shares. The holder of a fractional share is entitled to exercise the
rights for shareholder, including the right to vote, to receive dividends, and
to participate in the assets of the Association upon liquidation, in proportion
to the fractional interest. The holder of script or warrants is not entitled to
any of these rights unless the script or warrants explicitly provide for such
rights. The script or warrants may be subject to such additional conditions as:
(1) that the script or warrants will become void if not exchanged for full
shares before a specified date; and (2) that the shares for which the script or
warrants are exchangeable may be sold at the option of the Association and the
proceeds paid to scriptholders.
The Association, at any time and from time to time, may authorize and issue debt
obligations, whether or not subordinated, without the approval of the
shareholders. Obligations classified as debt, whether or not subordinated, which
may be issued by the Association without the approval of shareholders, do not
carry voting rights on any issue, including an increase or decrease in the
aggregate number of the securities, or the exchange or reclassification of all
or part of securities into securities of another class or series.
SIXTH. The Board of Directors shall appoint one of its members president of this
Association, and one of its members chairperson of the board and shall have the
power to appoint one or more vice presidents, a secretary who shall keep minutes
of the directors' and shareholders' meetings and be responsible for
authenticating the records of the Association, and such other officers and
employees as may be required to transact the
<PAGE>
business of this Association. A duly appointed officer may appoint one or more
officers or assistant officers if authorized by the Board of Directors in
accordance with the Bylaws. The Board of Directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of the
Association.
(2) Delegate the performance of its duties, but not the responsibility for its
duties, to the officers, employees, and agents of the Association.
(3) Fix the compensation and enter into employment contracts with its officers
and employees upon reasonable terms and conditions consistent with
applicable law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and to fix the penalty thereof.
(6) Ratify written policies authorized by the Association's management or
committees of the board.
(7) Regulate the manner in which any increase or decrease of the capital of
the Association shall be made, provided that nothing herein shall restrict
the power of shareholders to increase or decrease the capital of the
association in accordance with law, and nothing shall raise or lower from
two-thirds the percentage for shareholder approval to increase or reduce
the capital.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial Bylaws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of the
Association.
(10) Amend or repeal Bylaws, except to the extent that the Articles of
Association reserve this power in whole or in part to shareholders.
(11) Make contracts.
(12) Generally perform all acts that are legal for a Board of Directors to
perform.
SEVENTH. The Board of Directors shall have the power to change the location of
the main office of this Association to any other place within the limits of the
City of Columbus, State of Ohio, without the approval of the shareholders; and
shall have the power to change the location of the main office of this
Association to any other place outside the limits of the City of Columbus, State
of Ohio, but not more than thirty miles beyond such limits, with the affirmative
vote of shareholders owning two-thirds of the stock of the Association, subject
to receipt of a certificate of approval from the Comptroller of the Currency.
The Board of Directors shall have the power to establish or change the location
of any branch or branches of the Association to any other location permitted
under applicable law without the approval of the shareholders, subject to
approval by the Office of the Comptroller of the Currency. The Board of
Directors shall have the power to establish or change the location of any
nonbranch office or facility of the Association without the approval of the
shareholders.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
<PAGE>
NINTH. The Board of Directors of this Association, or any shareholders owning,
in the aggregate, not less than 20 percent of the stock of this Association, may
call a special meeting of shareholders at any time. Unless otherwise provided by
the Bylaws or the laws of the United States, or waived by shareholders, a notice
of the time, place, and purpose of every annual and special meeting of the
shareholders shall be given by first-class mail, postage prepaid, mailed at
least 10, and no more than 60, days prior to the date of the meeting to each
shareholder of record at his/her address as shown upon the books of this
Association. Unless otherwise provided by the Bylaws, any action requiring
approval of shareholders must be effected at a duly called annual or special
meeting.
TENTH. The Association shall provide indemnification as set forth below:
Every person who is or was a Director, officer or employee of the Association or
of any other corporation which he served as a Director, officer or employee at
the request of the Association as part of his regularly assigned duties may be
indemnified by the Association in accordance with the provisions of this Article
against all liability (including, without limitation, judgments, fines,
penalties, and settlements) and all reasonable expenses (including, without
limitation, attorneys' fees and investigative expenses) that may be incurred or
paid by him in connection with any claim, action, suit or proceeding, whether
civil, criminal or administrative (all referred to hereafter in this Article as
"Claims") or in connection with any appeal relating thereto in which he may
become involved as a party or otherwise or with which he may be threatened by
reason of his being or having been a Director, officer or employee of the
Association or such other corporation, or by reason of any action taken or
omitted by him in his capacity as such Director, officer or employee, whether or
not he continues to be such at the time such liability or expenses are incurred;
provided that nothing contained in this Article shall be construed to permit
indemnification of any such person who is adjudged guilty of, or liable for,
willful misconduct, gross neglect of duty or criminal acts, unless, at the time
such indemnification is sought, such indemnification in such instance is
permissible under applicable law and regulations, including published rulings of
the Comptroller of the Currency or other appropriate supervisory or regulatory
authority; and provided further that there shall be no indemnification of
Directors, officers, or employees against expenses, penalties, or other payments
incurred in an administrative proceeding or action instituted by an appropriate
regulatory agency which proceeding or action results in a final order assessing
civil money penalties or requiring affirmative action by an individual or
individuals in the form of payments to the Association.
Every person who may be indemnified under the provisions of this Article and who
has been wholly successful on the merits with respect to any Claim shall be
entitled to indemnification as of right. Except as provided in the preceding
sentence, any indemnification under this Article shall be at the sole discretion
of the Board of Directors and shall be made only if the Board of Directors or
the Executive Committee acting by a quorum consisting of Directors who are not
parties to such Claim shall find or if independent legal counsel (who may be the
regular counsel of the Association) selected by the Board of Directors or
Executive Committee whether or not a disinterested quorum exists shall render
their opinion that in view of all of the circumstances then surrounding the
Claim, such indemnification is equitable and in the best interests of the
Association. Among the circumstances to be taken into consideration in arriving
at such a finding or opinion is the existence or non-existence of a contract of
insurance or indemnity under which the Association would be wholly or partially
reimbursed for such indemnification, but the existence or non-existence of such
insurance is not the sole circumstance to be considered nor shall it be wholly
determinative of whether such indemnification shall be
<PAGE>
made. In addition to such finding or opinion, no indemnification under this
Article shall be made unless the Board of Directors or the Executive Committee
acting by a quorum consisting of Directors who are not parties to such Claim
shall find or if independent legal counsel (who may be the regular counsel of
the Association) selected by the Board of Directors or Executive Committee
whether or not a disinterested quorum exists shall render their opinion that the
Directors, officer or employee acted in good faith in what he reasonably
believed to be the best interests of the Association or such other corporation
and further in the case of any criminal action or proceeding, that the Director,
officer or employee reasonably believed his conduct to be lawful. Determination
of any Claim by judgment adverse to a Director, officer or employee by
settlement with or without Court approval or conviction upon a plea of guilty or
of nolo contendere or its equivalent shall not create a presumption that a
Director, officer or employee failed to meet the standards of conduct set forth
in this Article. Expenses incurred with respect to any Claim may be advanced by
the Association prior to the final disposition thereof upon receipt of an
undertaking satisfactory to the Association by or on behalf of the recipient to
repay such amount unless it is ultimately determined that he is entitled to
indemnification under this Article.
The rights of indemnification provided in this Article shall be in addition to
any rights to which any Director, officer or employee may otherwise be entitled
by contract or as a matter of law. Every person who shall act as a Director,
officer or employee of this Association shall be conclusively presumed to be
doing so in reliance upon the right of indemnification provided for in this
Article.
ELEVENTH. These Articles of Association may be amended at any regular or special
meeting of the shareholders by the affirmative vote of the holders of a majority
of the stock of this Association, unless the vote of the holders of a greater
amount of stock is required by law, and in that case by the vote of the holders
of such greater amount. The Association's Board of Directors may propose one or
more amendments to the Articles of Association for submission to the
shareholders.
<PAGE>
EXHIBIT 2
A COPY OF THE CERTIFICATE OF AUTHORITY OF THE
TRUSTEE TO COMMENCE BUSINESS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter No.
16235) is a National Banking Association formed under the laws of the United
States and is authorized thereunder to transact the business of banking on the
date of this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
15th day of September, 1999.
/s/ John D. Hawke, Jr.
----------------------
Comptroller of the Currency
<PAGE>
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE TRUSTEE
TO EXERCISE CORPORATE TRUST POWERS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter No.
16235) was granted, under the hand and seal of the Comptroller, the right to act
in all fiduciary capacities authorized under the provisions of the Act of
Congress approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a, and that the
authority so granted remains in full force and effect on the date of this
Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
15th day of September, 1999.
/s/ John D. Hawke, Jr.
----------------------
Comptroller of the Currency
EXHIBIT 4
A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
BY-LAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
<PAGE>
SECTION 1.01. ANNUAL MEETING. The regular annual meeting of the shareholders of
the Bank for the election of Directors and for the transaction of such business
as may properly come before the meeting shall be held at its main office, or
other convenient place duly authorized by the Board of Directors, on the same
day upon which any regular or special Board meeting is held from and including
the first Monday of January to, and including, the fourth Monday of February of
each year, or on the next succeeding banking day, if the day fixed falls on a
legal holiday. If from any cause, an election of Directors is not made on the
day fixed for the regular meeting of the shareholders or, in the event of a
legal holiday, on the next succeeding banking day, the Board of Directors shall
order the election to be held on some subsequent day, as soon thereafter as
practicable, according to the provisions of law; and notice thereof shall be
given in the manner herein provided for the annual meeting. Notice of such
annual meeting shall be given by or under the direction of the Secretary, or
such other officer as may be designated by the Chief Executive Officer, by
first-class mail, postage prepaid, to all shareholders of record of the Bank at
their respective addresses as shown upon the books of the Bank mailed not less
than ten days prior to the date fixed for such meeting.
SECTION 1.02. SPECIAL MEETINGS. A special meeting of the shareholders of the
Bank may be called at any time by the Board of Directors or by any three or more
shareholders owning, in the aggregate, not less than ten percent of the stock of
the Bank. Notice of any special meeting of the shareholders called by the Board
of Directors, stating the time, place and purpose of the meeting, shall be given
by or under the direction of the Secretary, or such other officer as is
designated by the Chief Executive Officer, by first-class mail, postage prepaid,
to all shareholders of record of the Bank at their respective addresses as shown
upon the books of the Bank mailed not less than ten days prior to the date fixed
for such meeting. Any special meeting of shareholders shall be conducted and its
proceedings recorded in the manner prescribed in these By-Laws for annual
meetings of shareholders.
SECTION 1.03. SECRETARY OF MEETING OF SHAREHOLDERS. The Board of Directors may
designate a person to be the secretary of the meeting of shareholders. In the
absence of a presiding officer, as designated by these By-Laws, the Board of
Directors may designate a person to act as the presiding officer. In the event
the Board of Directors fails to designate a person to preside at a meeting of
shareholders and a secretary of such meeting, the shareholders present or
represented shall elect a person to preside and a person to serve as secretary
of the meeting. The secretary of the meeting of shareholders shall cause the
returns made by the judges of election and other proceedings to be recorded in
the minute books of the Bank. The presiding officer shall notify the
Directors-elect of their election and to meet forthwith for the organization of
the new Board of Directors. The minutes of the meeting shall be signed by the
presiding officer and the secretary designated for the meeting.
SECTION 1.04. JUDGES OF ELECTION. The Board of Directors may appoint as many as
three shareholders to be judges of the election, who shall hold and conduct the
same, and who shall, after the election has been held, notify, in writing over
their signatures, the secretary of the meeting of shareholders of the result
thereof and the names of the Directors elected; provided, however, that upon
failure for any reason of any judge or judges of election, so appointed by the
Directors, to serve, the presiding officer of the meeting shall appoint other
shareholders or their proxies to fill the vacancies. The judges of election, at
the request of the chairman of the meeting, shall act as tellers of any other
<PAGE>
vote by ballot taken at such meeting, and shall notify, in writing over their
signature, the secretary of the Board of Directors of the result thereof.
SECTION 1.05. PROXIES. In all elections of Directors, each shareholder of
record, who is qualified to vote under the provisions of Federal Law, shall have
the right to vote the number of shares of record in such shareholder's name for
as many persons as there are Directors to be elected, or to cumulate such shares
as provided by Federal Law. In deciding all other questions at meetings of
shareholders, each shareholder shall be entitled to one vote on each share of
stock of record in such shareholder's name. Shareholders may vote by proxy duly
authorized in writing. All proxies used at the annual meeting shall be secured
for that meeting only, or any adjournment thereof, and shall be dated, if not
dated by the shareholder, as of the date of the receipt thereof. No officer or
employee of this Bank may act as proxy.
SECTION 1.06. QUORUM. Holders of record of a majority of the shares of the
capital stock of the Bank, eligible to be voted, present either in person or by
proxy, shall constitute a quorum for the transaction of business at any meeting
of shareholders, but shareholders present at any meeting and constituting less
than a quorum may, without further notice, adjourn the meeting from time to time
until a quorum is obtained. A majority of the votes cast shall decide every
question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
DIRECTORS
SECTION 2.01. QUALIFICATIONS. Each Director shall have the qualifications
prescribed by law. No person elected as a Director may exercise any of the
powers of office until such Director has taken the oath of such office.
SECTION 2.02. VACANCIES. Directors of the Bank shall hold office for one year or
until their successors are elected and qualified. Any vacancy in the Board shall
be filled by appointment of the remaining Directors, and any Director so
appointed shall hold office until the next election.
SECTION 2.03. ORGANIZATION MEETING. The Directors elected by the shareholders
shall meet for organization of the new Board of Directors at the time and place
fixed by the presiding officer of the annual meeting. If at the time fixed for
such meeting there is no quorum present, the Directors in attendance may adjourn
from time to time until a quorum is obtained. A majority of the number of
Directors elected by the shareholders shall constitute a quorum for the
transaction of business.
SECTION 2.04. REGULAR MEETINGS. The regular meetings of the Board of Directors
shall be held at such date, time and place as the Board may previously
designate, or should the Board fail to so designate, at such date, time and
place as the Chairman of the Board, Chief Executive Officer, or President may
fix. Whenever a quorum is not present, the Directors in attendance shall adjourn
the meeting to a time not later than the date fixed by the By-Laws for the next
succeeding regular meeting of the Board. Members of the Board of Directors may
participate in such meetings through use of conference telephone or
<PAGE>
similar communications equipment, so long as all members participating in such
meetings can hear one another.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the Board of Directors shall
be held at the call of the Chairman of the Board, Chief Executive Officer, or
President, or at the request of two or more Directors. Any special meeting may
be held at such place and at such time as may be fixed in the call. Written or
oral notice shall be given to each Director not later than the day next
preceding the day on which the special meeting is to be held, which notice may
be waived in writing. The presence of a Director at any meeting of the Board of
Directors shall be deemed a waiver of notice thereof by such Director. Whenever
a quorum is not present, the Directors in attendance shall adjourn the special
meeting from day to day until a quorum is obtained. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.06. QUORUM. A majority of the Directors shall constitute a quorum at
any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as herein
defined, but at least one-third and not less than two of the authorized number
of Directors are present at a meeting of the Directors, business of the Bank may
be transacted and matters before the Board approved or disapproved by the
unanimous vote of the Directors present.
SECTION 2.07. COMPENSATION. Each member of the Board of Directors shall receive
such fees for attendance at Board and Board committee meetings and such fees for
service as a Director, irrespective of meeting attendance, as from time to time
are fixed by resolution of the Board; provided, however, that payment hereunder
shall not be made to a Director for meetings attended and/or Board service which
are not for the Bank's sole benefit and which are concurrent and duplicative
with meetings attended or Board service for an affiliate of the Bank for which
the Director receives payment; and provided further that fees hereunder shall
not be paid in the case of any Director in the regular employment of the Bank or
of one of its affiliates. Each member of the Board of Directors, whether or not
such Director is in the regular employment of the Bank or of one of its
affiliates, shall be reimbursed for travel expenses incident to attendance at
Board and Board committee meetings.
SECTION 2.08. EXECUTIVE COMMITTEE. There may be a standing committee of the
Board of Directors known as the Executive Committee which shall possess and
exercise, when the Board is not in session, all the powers of the Board that may
lawfully be delegated. The Executive Committee shall consist of at least three
Board members, one of whom shall be the Chairman of the Board, Chief Executive
Officer or the President. The other members of the Executive Committee shall be
appointed by the Chairman of the Board, the Chief Executive Officer, or the
President, with the approval of the Board, and who shall continue as members of
the Executive Committee until their successors are appointed, provided, however,
that any member of the Executive Committee may be removed by the Board upon a
majority vote thereof at any regular or special meeting of the Board. The
Chairman, Chief Executive Officer, or President shall fill any vacancy in the
Executive Committee by the appointment of another Director, subject to the
approval of
<PAGE>
the Board of Directors. The Executive Committee shall meet at the call of the
Chairman, Chief Executive Officer, or President or any two members thereof at
such time or times and place as may be designated. In the event of the absence
of any member or members of the Executive Committee, the presiding member may
appoint a member or members of the Board to fill the place or places of such
absent member or members to serve during such absence. Two members of the
Executive Committee shall constitute a quorum. When neither the Chairman of the
Board, the Chief Executive Officer, nor President are present, the Executive
Committee shall appoint a presiding officer. The Executive Committee shall
report its proceedings and the action taken by it to the Board of Directors.
SECTION 2.09. OTHER COMMITTEES. The Board of Directors may appoint such special
committees from time to time as are in its judgment necessary in the interest of
the Bank.
ARTICLE III
OFFICERS, MANAGEMENT STAFF AND EMPLOYEES
SECTION 3.01. OFFICERS AND MANAGEMENT STAFF. (a) The executive officers of the
Bank shall include a Chairman of the Board, Chief Executive Officer, President,
Chief Financial Officer, Secretary, Security Officer, and may include one or
more Senior Managing Directors or Managing Directors. The Chairman of the Board,
Chief Executive Officer, President, any Senior Managing Director, any Managing
Director, Chief Financial Officer, Secretary, and Security Officer shall be
elected by the Board. The Chairman of the Board, Chief Executive Officer, and
the President shall be elected by the Board from their own number. Such officers
as the Board shall elect from their own number shall hold office from the date
of their election as officers until the organization meeting of the Board of
Directors following the next annual meeting of shareholders, provided, however,
that such officers may be relieved of their duties at any time by action of the
Board of Directors, in which event all the powers incident to their office shall
immediately terminate. The Chairman of the Board, Chief Executive Officer, or
the President shall preside at all meetings of shareholders and meetings of the
Board of Directors.
(b) The management staff of the Bank shall include officers elected by the
Board, officers appointed by the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and such other persons in the employment of the Bank
who, pursuant to authorization by a duly authorized officer of the Bank, perform
management functions and have management responsibilities. Any two or more
offices may be held by the same person except that no person shall hold the
office of Chairman of the Board, Chief Executive Officer and/or President and at
the same time also hold the office of Secretary.
(c) Except as provided in the case of the elected officers who are members of
the Board, all officers and employees, whether elected or appointed, shall hold
office at the pleasure of the Board. Except as otherwise limited by law or these
By-Laws, the Board assigns to the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and/or each of their respective designees the authority
to control all personnel, including elected and appointed officers and employees
of the Bank, to employ or direct the employment of such officers and
<PAGE>
employees as he or she may deem necessary, including the fixing of salaries and
the dismissal of such officers and employees at pleasure, and to define and
prescribe the duties and responsibilities of all officers and employees of the
Bank, subject to such further limitations and directions as he or she may from
time to time deem appropriate.
(d) The Chairman of the Board, the Chief Executive Officer, the President, any
Senior Managing Director, any Managing Director, the Chief Financial Officer,
and any other officer of the Bank, to the extent that such officer is authorized
in writing by the Chairman of the Board, the Chief Executive Officer, the
President, any Senior Managing Director, any Managing Director, or the Chief
Financial Officer may appoint persons other than officers who are in employment
of the Bank to serve in management positions and in connection therewith, the
appointing officer may assign such title, salary, responsibilities and functions
as are deemed appropriate, provided, however, that nothing contained herein
shall be construed as placing any limitation on the authority of the Chairman of
the Board, the Chief Executive Officer, the President, any Senior Managing
Director, any Managing Director, or the Chief Financial Officer as provided in
this and other sections of these By-Laws.
(e) The Senior Managing Directors and the Managing Directors of the Bank shall
have general and active authority over the management of the business of the
Bank, shall see that all orders and resolutions of the Board of Directors are
carried into effect, and shall do or cause to be done all things necessary or
proper to carry on the business of the Bank in accordance with provisions of
applicable law and regulations. Each Senior Managing Director and Managing
Director shall perform all duties incident to his or her office and such other
and further duties, as may from time to time be required by the Chief Executive
Officer, the President, the Board of Directors, or the shareholders. The
specification of authority in these By-Laws wherever and to whomever granted
shall not be construed to limit in any manner the general powers of delegation
granted to a Senior Managing Director or a Managing Director in conducting the
business of the Bank. In the absence of a Senior Managing Director or a Managing
Director, such officer as is designated by the Senior Managing Director or the
Managing Director shall be vested with all the powers and perform all the duties
of the Senior Managing Director or the Managing Director as defined by these
By-Laws.
(f) Each Managing Director who is assigned oversight of one or more trust
service offices shall appoint a management committee known as the Investment
Management and Trust Committee consisting of the Managing Director of the trust
service offices and at least three other members who shall be capable and
experienced officers of the Bank appointed from time to time by the Managing
Director and who shall continue as members of the Investment Management and
Trust Committee until their successors are appointed, provided, however, that
any member of the Investment Management and Trust Committee may be removed by
the Managing Director as provided in this and other sections of these By-Laws.
The Managing Director shall fill any vacancy in the Investment Management and
Trust Committee by the appointment of another capable and experienced officer of
the Bank. Each Investment Management and Trust Committee shall meet at such
date, time and place as the Managing Director shall fix. In the event of the
absence of any member or members of the Investment Management and Trust
Committee, the Managing Director may, in his or her discretion, appoint another
officer of the Bank to fill the place or places of such absent member or members
to serve during such absence. A majority of each Investment Management and Trust
Committee shall constitute a quorum. Each Investment
<PAGE>
Management and Trust Committee shall carry out the policies of the Bank, as
adopted by the Board of Directors, which shall be formulated and executed in
accordance with State and Federal Law, Regulations of the Comptroller of the
Currency, and sound fiduciary principles. In carrying out the policies of the
Bank, each Investment Management and Trust Committee is hereby authorized to
establish management teams whose duties and responsibilities shall be
specifically set forth in the policies of the Bank. Each such management team
shall report such proceedings and the actions taken thereby to the Investment
Management and Trust Committee. Each Managing Director shall then report such
proceedings and the actions taken thereby to the Board of Directors.
SECTION 3.02. POWERS AND DUTIES OF MANAGEMENT STAFF. Pursuant to the fiduciary
powers granted to this Bank under the provisions of Federal Law and Regulations
of the Comptroller of the Currency, the Chairman of the Board, the Chief
Executive Officer, the President, the Senior Managing Directors, the Managing
Directors, the Chief Financial Officer, and those officers so designated and
authorized by the Chairman of the Board, the Chief Executive Officer, the
President, the Senior Managing Directors, the Managing Directors, or the Chief
Financial Officer are authorized for and on behalf of the Bank, and to the
extent permitted by law, to make loans and discounts; to purchase or acquire
drafts, notes, stocks, bonds, and other securities for investment of funds held
by the Bank; to execute and purchase acceptances; to appoint, empower and direct
all necessary agents and attorneys; to sign and give any notice required to be
given; to demand payment and/or to declare due for any default any debt or
obligation due or payable to the Bank upon demand or authorized to be declared
due; to foreclose any mortgages; to exercise any option, privilege or election
to forfeit, terminate, extend or renew any lease; to authorize and direct any
proceedings for the collection of any money or for the enforcement of any right
or obligation; to adjust, settle and compromise all claims of every kind and
description in favor of or against the Bank, and to give receipts, releases and
discharges therefor; to borrow money and in connection therewith to make,
execute and deliver notes, bonds or other evidences of indebtedness; to pledge
or hypothecate any securities or any stocks, bonds, notes or any property real
or personal held or owned by the Bank, or to rediscount any notes or other
obligations held or owned by the Bank, whenever in his or her judgment it is
reasonably necessary for the operation of the Bank; and in furtherance of and in
addition to the powers hereinabove set forth to do all such acts and to take all
such proceedings as in his or her judgment are necessary and incidental to the
operation of the Bank.
SECTION 3.03. SECRETARY. The Secretary or such other officers as may be
designated by the Chief Executive Officer shall have supervision and control of
the records of the Bank and, subject to the direction of the Chief Executive
Officer, shall undertake other duties and functions usually performed by a
corporate secretary. Other officers may be designated by the Secretary as
Assistant Secretary to perform the duties of the Secretary.
SECTION 3.04. EXECUTION OF DOCUMENTS. Any member of the Bank's management staff
or any employee of the Bank designated as an officer on the Bank's payroll
system is hereby authorized for and on behalf of the Bank to sell, assign,
lease, mortgage, transfer, deliver and convey any real or personal property,
including shares of stock, bonds, notes, certificates of indebtedness (including
the assignment and redemption of registered United States obligations) and all
other forms of intangible property now or hereafter owned by or standing in the
name of the Bank, or its nominee, or held by the Bank as collateral security,
<PAGE>
or standing in the name of the Bank, or its nominee, in any fiduciary capacity
or in the name of any principal for whom this Bank may now or hereafter be
acting under a power of attorney or as agent, and to execute and deliver such
partial releases from any discharges or assignments of mortgages and assignments
or surrender of insurance policies, deeds, contracts, assignments or other
papers or documents as may be appropriate in the circumstances now or hereafter
held by the Bank in its own name, in a fiduciary capacity, or owned by any
principal for whom this Bank may now or hereafter be acting under a power of
attorney or as agent; provided, however, that, when necessary, the signature of
any such person shall be attested or witnessed in each case by another officer
of the Bank. Any member of the Bank's management staff or any employee of the
Bank designated as an officer on the Bank's payroll system is hereby authorized
for and on behalf of the Bank to execute any indemnity and fidelity bonds, trust
agreements, proxies or other papers or documents of like or different character
necessary, desirable or incidental to the appointment of the Bank in any
fiduciary capacity, the conduct of its business in any fiduciary capacity, or
the conduct of its other banking business; to sign and issue checks, drafts,
orders for the payment of money and certificates of deposit; to sign and endorse
bills of exchange, to sign and countersign foreign and domestic letters of
credit, to receive and receipt for payments of principal, interest, dividends,
rents, fees and payments of every kind and description paid to the Bank, to sign
receipts for money or other property acquired by or entrusted to the Bank, to
guarantee the genuineness of signatures on assignments of stocks, bonds or other
securities, to sign certifications of checks, to endorse and deliver checks,
drafts, warrants, bills, notes, certificates of deposit and acceptances in all
business transactions of the Bank; also to foreclose any mortgage, to execute
and deliver receipts for any money or property; also to sign stock certificates
for and on behalf of this Bank as transfer agent or registrar, and to
authenticate bonds, debentures, land or lease trust certificates or other forms
of security issued pursuant to any indenture under which this Bank now or
hereafter is acting as trustee or in any other fiduciary capacity; to execute
and deliver various forms of documents or agreements necessary to effectuate
certain investment strategies for various fiduciary or custody customers of the
Bank, including, without limitation, exchange funds, options, both listed and
over-the-counter, commodities trading, futures trading, hedge funds, limited
partnerships, venture capital funds, swap or collar transactions and other
similar investment vehicles for which the Bank now or in the future may deem
appropriate for investment of fiduciary customers or in which non-fiduciary
customers may direct investment by the Bank.
Without limitation on the foregoing, the Chief Executive Officer, Chairman of
the Board, or President of the Bank shall have the authority from time to time
to appoint officers of the Bank as Vice President for the sole purpose of
executing releases or other documents incidental to the conduct of the Bank's
business in any fiduciary capacity where required by state law or the governing
document. In addition, other persons in the employment of the Bank or its
affiliates may be authorized by the Chief Executive Officer, Chairman of the
Board, President, Senior Managing Directors, Managing Directors, or Chief
Financial Officer to perform acts and to execute the documents described in the
paragraph above, subject, however, to such limitations and conditions as are
contained in the authorization given to such person.
<PAGE>
SECTION 3.05. PERFORMANCE BOND. All officers and employees of the Bank shall be
bonded for the honest and faithful performance of their duties for such amount
as may be prescribed by the Board of Directors.
ARTICLE IV
STOCKS AND STOCK CERTIFICATES
SECTION 4.01. STOCK CERTIFICATES. The shares of stock of the Bank shall be
evidenced by certificates which shall bear the signature of the Chairman of the
Board, the Chief Executive Officer, or the President (which signature may be
engraved, printed or impressed), and shall be signed manually by the Secretary,
or any other officer appointed by the Chief Executive Officer for that purpose.
In case any such officer who has signed or whose facsimile signature has been
placed upon such certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Bank with the same effect as if
such officer had not ceased to be such at the time of its issue. Each such
certificate shall bear the corporate seal of the Bank, shall recite on its face
that stock represented thereby is transferable only upon the books of the Bank
when properly endorsed and shall recite such other information as is required by
law and deemed appropriate by the Board. The corporate seal may be facsimile
engraved or printed.
SECTION 4.02. STOCK ISSUE AND TRANSFER. The shares of stock of the Bank shall be
transferable only upon the stock transfer books of the Bank and, except as
hereinafter provided, no transfer shall be made or new certificates issued
except upon the surrender for cancellation of the certificate or certificates
previously issued therefor. In the case of the loss, theft, or destruction of
any certificate, a new certificate may be issued in place of such certificate
upon the furnishing of an affidavit setting forth the circumstances of such
loss, theft, or destruction and indemnity satisfactory to the Chairman of the
Board, the Chief Executive Officer, or the President. The Board of Directors or
the Chairman of the Board, Chief Executive Officer, or the President may
authorize the issuance of a new certificate therefor without the furnishing of
indemnity. Stock transfer books, in which all transfers of stock shall be
recorded, shall be provided. The stock transfer books may be closed for a
reasonable period and under such conditions as the Board of Directors may at any
time determine, for any meeting of shareholders, the payment of dividends or any
other lawful purpose. In lieu of closing the transfer books, the Board of
Directors may, in its discretion, fix a record date and hour constituting a
reasonable period prior to the day designated for the holding of any meeting of
the shareholders or the day appointed for the payment of any dividend, or for
any other purpose at the time as of which shareholders entitled to notice of and
to vote at any such meeting or to receive such dividend or to be treated as
shareholders for such other purpose shall be determined, and only shareholders
of record at such time shall be entitled to notice of or to vote at such meeting
or to receive such dividends or to be treated as shareholders for such other
purpose.
ARTICLE V
MISCELLANEOUS PROVISIONS
<PAGE>
SECTION 5.01. SEAL. The seal of the Bank shall be circular in form with "SEAL"
in the center, and the name "BANK ONE TRUST COMPANY, NA" located clockwise
around the upper half of the seal.
SECTION 5.02. MINUTE BOOK. The organization papers of this Bank, the Articles of
Association, the returns of judges of elections, the By-Laws and any amendments
thereto, the proceedings of all regular and special meetings of the shareholders
and of the Board of Directors, and reports of the committees of the Board of
Directors shall be recorded in the minute books of the Bank. The minutes of each
such meeting shall be signed by the presiding officer and attested by the
secretary of the meeting.
SECTION 5.03. CORPORATE POWERS. The corporate existence of the Bank shall
continue until terminated in accordance with the laws of the United States. The
purpose of the Bank shall be to carry on the general business of a commercial
bank trust department and to engage in such activities as are necessary,
incident, or related to such business. The Articles of Association of the Bank
shall not be amended, or any other provision added elsewhere in the Articles
expanding the powers of the Bank, without the prior approval of the Comptroller
of the Currency.
SECTION 5.04. AMENDMENT OF BY-LAWS. The By-Laws may be amended, altered or
repealed, at any regular or special meeting of the Board of Directors, by a vote
of a majority of the Directors.
As amended April 24, 1991 Section 3.01 (Officers and Management Staff)
Section 3.02 (Chief Executive Officer)
Section 3.03 (Powers and Duties of Officers and
Management Staff)
Section 3.05 (Execution of Documents)
As amended January 27, 1995 Section 2.04 (Regular Meetings)
Section 2.05 (Special Meetings)
Section 3.01(f) (Officers and Management Staff)
Section 3.03(e) (Powers and Duties of Officers
and Management Staff)
Section 5.01 (Seal)
Amended and restated in its entirety effective May 1, 1996
As amended August 1, 1996 Section 2.09 (Trust Examining Committee)
Section 2.10 (Other Committees)
As amended October 16, 1997 Section 3.01 (Officers and Management Staff)
Section 3.02 (Powers and Duties of Officers and
Management Staff)
Section 3.04 (Execution of Documents)
<PAGE>
As amended January 1, 1998 Section 1.01 (Annual Meeting)
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
April 4, 2000
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an amended and restated declaration of
trust between State Street Capital Trust III and Bank One Trust Company,
National Association, as Trustee, 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,
Bank One Trust Company, National Association
By: /s/ Sandra L. Caruba
Sandra L. Caruba
Vice President
<PAGE>
EXHIBIT 7
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/99 State #: 391581 FFIEC 032
Address: 100 Broad Street Vendor ID: D Cert #: 21377 Page RC-1
City, State Zip: Columbus, OH 43271 Transit #: 04400003
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in thousands C300
------
RCON BIL MIL THOU
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCON
a. Noninterest-bearing balances and currency and coin(1) ........... 0081 123,692 1.a
b. Interest-bearing balances(2) .................................... 0071 17,687 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 5,860 2.b
3. Federal funds sold and securities purchased under agreements to
resell ............................................................. 1350 364,813 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCON
RC-C) .............................................................. 2122 58,020 4.a
b. LESS: Allowance for loan and lease losses ....................... 3123 10 4.b
c. LESS: Allocated transfer risk reserve ........................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCON
reserve (item 4.a minus 4.b and 4.c) ............................ 2125 58,010 4.d
5. Trading assets (from Schedule RD-D) ................................ 3545 0 5.
6. Premises and fixed assets (including capitalized leases) ........... 2145 22,547 6.
7. Other real estate owned (from Schedule RC-M) ....................... 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) ..................................... 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding ....... 2155 0 9.
10. Intangible assets (from Schedule RC-M) ............................. 2143 27,151 10.
11. Other assets (from Schedule RC-F) .................................. 2160 141,759 11.
12. Total assets (sum of items 1 through 11) ........................... 2170 761,519 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> <C> <C> <C> <C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/99 State #: 391581 FFIEC 032
Address: 100 East Broad Street Vendor ID: D Cert #" 21377 Page RC-2
City, State Zip: Columbus, OH 43271 Transit #: 04400003
</TABLE>
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part 1) ........................................... 2200 589,846 13.a
(1) Noninterest-bearing(1) ............................................ 6631 517,140 13.a1
(2) Interest-bearing .................................................. 6636 72,706 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)
(1) Noninterest bearing
(2) Interest-bearing
14. Federal funds purchased and securities sold under agreements
to repurchase: ........................................................... RCFD
2800 0 14
15. a. Demand notes issued to the U.S. Treasury .............................. RCON
2840 0 15.a
b. Trading Liabilities(from Sechedule RC-D) .............................. RCFD
3548 0 15.b
16. Other borrowed money: RCON
a. With original maturity of one year or less ............................ 2332 0 16.a
b. With original maturity of more than one year .......................... A547 0 16.b
c. With original maturity of more than three years ....................... A548 0 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding .................. 2920 0 18.
19. Subordinated notes and debentures ........................................ 3200 0 19.
20. Other liabilities (from Schedule RC-G) ................................... 2930 63,244 20.
21. Total liabilities (sum of items 13 through 20) ........................... 2948 653,090 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ............................ 3838 0 23.
24. Common stock ............................................................. 3230 800 24.
25. Surplus (exclude all surplus related to preferred stock) ................. 3839 45,157 25.
26. a. Undivided profits and capital reserves ................................ 3632 62,458 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities ............................................................ 8434 14 26.b
c. Accumulated net gains (losses) on cash flow hedges .................... 4336 0 26.c
27. Cumulative foreign currency translation adjustments
28. Total equity capital (sum of items 23 through 27) ........................ 3210 108,429 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) .................................... 3300 761,519 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.
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)
----------------------------
Bank One Trust Company, National Association
(Exact name of trustee as specified in its charter)
A National Banking Association 31-0838515
(I.R.S. employer
identification number)
100 East Broad Street, Columbus, Ohio 43271-0181
(Address of principal executive offices) (Zip Code)
Bank One Trust Company, N.A.
One North State Street, 9th Floor
Chicago, Illinois 60602
Attn: Sandra L. Caruba, Vice President and Senior Counsel, (312) 336-9436
(Name, address and telephone number of agent for service)
-----------------------------
STATE STREET CAPITAL TRUST IV
(Exact name of obligor as specified in its charter)
Delaware [applied for]
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
225 Franklin Street 02110
Boston, Massachusetts (ZIP Code)
(Address of principal executive offices)
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 certificate 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.
<PAGE>
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.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, National Association, 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 State of Illinois, on the 4th day of April,
2000.
Bank One Trust Company, National Association,
Trustee
By /s/ Sandra L. Caruba
Sandra L. Caruba
Vice President
<PAGE>
EXHIBIT 1
A COPY OF THE ARTICLES OF ASSOCIATION OF THE
TRUSTEE NOW IN EFFECT
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
of
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
FIRST. The title of this Association shall be BANK ONE TRUST COMPANY, NATIONAL
ASSOCIATION.
SECOND. The main office of the Association shall be in the City of Columbus,
County of Franklin, State of Ohio.
The business of the Association will be limited to the fiduciary powers and the
support of activities incidental to the exercise of those powers. The
Association will not expand or alter its business beyond that stated in this
article without the prior approval of the Comptroller of the Currency.
THIRD. The Board of Directors of this Association shall consist of not less than
five nor more than twenty-five persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full Board of
Directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director shall own common or preferred stock of
the Association, or of a holding company owning the Association, with an
aggregate par, fair market or equity value of not less than $1,000, as of either
(i) the date of purchase, (ii) the date the person became a director, or (iii)
the date of that person's most recent election to the Board of Directors,
whichever is more recent. Any combination of common or preferred stock of the
Association or holding company may be used.
Any vacancy in the Board of Directors may be filled by action of a majority of
the remaining directors between meetings of shareholders. The Board of Directors
may not increase the number of directors between meetings of shareholders to a
number which: (1) exceeds by more than two the number of directors last elected
by shareholders where the number was 15 or less; or (2) exceeds by more than
four the number of directors last elected by shareholders where the number was
16 or more, but in no event shall the number of directors exceed 25.
Terms of directors, including directors selected to fill vacancies, shall expire
at the next regular meeting of shareholders at which directors are elected,
unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the Board of Directors, without voting power or
power of final decision in matters concerning the business of the Association,
may be appointed by resolution of a majority of the full Board of Directors, or
by resolution of shareholders at any annual or special meeting. Honorary or
advisory directors shall not be counted to
<PAGE>
determine the number of directors of the Association or the presence of a quorum
in connection with any board action, and shall not be required to own qualifying
shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It shall
be held at the main office or any other convenient place the Board of Directors
may designate, on the day of each year specified therefor in the Bylaws or, if
that day falls on a legal holiday in the state in which the Association is
located, on the next following banking day. If no election is held on the day
fixed or in the event of a legal holiday on the following banking day, an
election may be held on any subsequent day within 60 days of the day fixed, to
be designated by the Board of Directors or, if the directors fail to fix the
day, by shareholders representing two-thirds of the shares issued and
outstanding. In all cases at least 10 days advance notice of the meeting shall
be given to the shareholders by first class mail.
In all elections of directors, the number of votes each common shareholder may
cast will be determined by multiplying the number of shares such shareholder
owns by the number of directors to be elected. Those votes may be cumulated and
cast for a single candidate or may be distributed among two or more candidates
in the manner selected by the shareholder. On all other questions, each common
shareholder shall be entitled to one vote for each share of stock held by such
shareholder. If the issuance of preferred stock with voting rights has been
authorized by a vote of shareholders owning a majority of the common stock of
the association, preferred shareholders will have cumulative voting rights and
will be included within the same class as common shareholders, for purposes of
elections of directors.
A director may resign at any time by delivering written notice to the Board of
Directors, its chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of the
affirmative requirements for qualification, or for cause, provided, however,
that a director may not be removed if the number of votes sufficient to elect
him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of this Association shall be
eighty thousand shares of common stock of the par value of ten dollars ($10.00)
each; but said capital stock may be increased or decreased from time to time,
according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time determine and at such
price as the Board of Directors may from time to time fix. Unless otherwise
specified in the Articles of Association or required by law, (1) all matters
requiring shareholder action, including amendments to the Articles of
Association, must be approved by shareholders owning a majority voting interest
in the outstanding voting stock, and (2) each shareholder shall be entitled to
one vote per share.
<PAGE>
Unless otherwise specified in the Articles of Association or required by law,
all shares of voting stock shall be voted together as a class on any matters
requiring shareholder approval. If a proposed amendment would affect two or more
classes or series in the same or a substantially similar way, all the classes or
series so affected must vote together as a single voting group on the proposed
amendment.
Shares of the same class or series may be issued as a dividend on a pro rata
basis and without consideration. Shares of another class or series may be issued
as share dividends in respect of a class or series of stock if approved by a
majority of the votes entitled to be cast by the class or series to be issued
unless there are no outstanding shares of the class or series to be issued.
Unless otherwise provided by the Board of Directors, the record date for
determining shareholders entitled to a share dividend shall be the date the
Board of Directors authorizes the share dividend.
Unless otherwise provided in the Bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close of
business on the day before the first notice is mailed or otherwise sent to the
shareholders, provided that in no event may a record date be more than 70 days
before the meeting.
If a shareholder is entitled to fractional shares pursuant to preemptive rights,
a stock dividend, consolidation or merger, reverse stock split or otherwise, the
Association may: (a) issue fractional shares or; (b) in lieu of the issuance of
fractional shares, issue script or warrants entitling the holder to receive a
full share upon surrendering enough script or warrants to equal a full share;
(c) if there is an established and active market in the Association's stock,
make reasonable arrangements to provide the shareholder with an opportunity to
realize a fair price through sale of the fraction, or purchase of the additional
fraction required for a full share; (d) remit the cash equivalent of the
fraction to the shareholder; or (e) sell full shares representing all the
fractions at public auction or to the highest bidder after having solicited and
received sealed bids from at least three licensed stock brokers, and distribute
the proceeds pro rata to shareholders who otherwise would be entitled to the
fractional shares. The holder of a fractional share is entitled to exercise the
rights for shareholder, including the right to vote, to receive dividends, and
to participate in the assets of the Association upon liquidation, in proportion
to the fractional interest. The holder of script or warrants is not entitled to
any of these rights unless the script or warrants explicitly provide for such
rights. The script or warrants may be subject to such additional conditions as:
(1) that the script or warrants will become void if not exchanged for full
shares before a specified date; and (2) that the shares for which the script or
warrants are exchangeable may be sold at the option of the Association and the
proceeds paid to scriptholders.
The Association, at any time and from time to time, may authorize and issue debt
obligations, whether or not subordinated, without the approval of the
shareholders. Obligations classified as debt, whether or not subordinated, which
may be issued by the Association without the approval of shareholders, do not
carry voting rights on any issue, including an increase or decrease in the
aggregate number of the securities, or the exchange or reclassification of all
or part of securities into securities of another class or series.
SIXTH. The Board of Directors shall appoint one of its members president of this
Association, and one of its members chairperson of the board and shall have the
power to appoint one or more vice presidents, a secretary who shall keep minutes
of the directors' and shareholders' meetings and be responsible for
authenticating the records of the Association, and such other officers and
employees as may be required to transact the
<PAGE>
business of this Association. A duly appointed officer may appoint one or more
officers or assistant officers if authorized by the Board of Directors in
accordance with the Bylaws. The Board of Directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of the
Association.
(2) Delegate the performance of its duties, but not the responsibility for its
duties, to the officers, employees, and agents of the Association.
(3) Fix the compensation and enter into employment contracts with its officers
and employees upon reasonable terms and conditions consistent with
applicable law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and to fix the penalty thereof.
(6) Ratify written policies authorized by the Association's management or
committees of the board.
(7) Regulate the manner in which any increase or decrease of the capital of
the Association shall be made, provided that nothing herein shall restrict
the power of shareholders to increase or decrease the capital of the
association in accordance with law, and nothing shall raise or lower from
two-thirds the percentage for shareholder approval to increase or reduce
the capital.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial Bylaws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of the
Association.
(10) Amend or repeal Bylaws, except to the extent that the Articles of
Association reserve this power in whole or in part to shareholders.
(11) Make contracts.
(12) Generally perform all acts that are legal for a Board of Directors to
perform.
SEVENTH. The Board of Directors shall have the power to change the location of
the main office of this Association to any other place within the limits of the
City of Columbus, State of Ohio, without the approval of the shareholders; and
shall have the power to change the location of the main office of this
Association to any other place outside the limits of the City of Columbus, State
of Ohio, but not more than thirty miles beyond such limits, with the affirmative
vote of shareholders owning two-thirds of the stock of the Association, subject
to receipt of a certificate of approval from the Comptroller of the Currency.
The Board of Directors shall have the power to establish or change the location
of any branch or branches of the Association to any other location permitted
under applicable law without the approval of the shareholders, subject to
approval by the Office of the Comptroller of the Currency. The Board of
Directors shall have the power to establish or change the location of any
nonbranch office or facility of the Association without the approval of the
shareholders.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
<PAGE>
NINTH. The Board of Directors of this Association, or any shareholders owning,
in the aggregate, not less than 20 percent of the stock of this Association, may
call a special meeting of shareholders at any time. Unless otherwise provided by
the Bylaws or the laws of the United States, or waived by shareholders, a notice
of the time, place, and purpose of every annual and special meeting of the
shareholders shall be given by first-class mail, postage prepaid, mailed at
least 10, and no more than 60, days prior to the date of the meeting to each
shareholder of record at his/her address as shown upon the books of this
Association. Unless otherwise provided by the Bylaws, any action requiring
approval of shareholders must be effected at a duly called annual or special
meeting.
TENTH. The Association shall provide indemnification as set forth below:
Every person who is or was a Director, officer or employee of the Association or
of any other corporation which he served as a Director, officer or employee at
the request of the Association as part of his regularly assigned duties may be
indemnified by the Association in accordance with the provisions of this Article
against all liability (including, without limitation, judgments, fines,
penalties, and settlements) and all reasonable expenses (including, without
limitation, attorneys' fees and investigative expenses) that may be incurred or
paid by him in connection with any claim, action, suit or proceeding, whether
civil, criminal or administrative (all referred to hereafter in this Article as
"Claims") or in connection with any appeal relating thereto in which he may
become involved as a party or otherwise or with which he may be threatened by
reason of his being or having been a Director, officer or employee of the
Association or such other corporation, or by reason of any action taken or
omitted by him in his capacity as such Director, officer or employee, whether or
not he continues to be such at the time such liability or expenses are incurred;
provided that nothing contained in this Article shall be construed to permit
indemnification of any such person who is adjudged guilty of, or liable for,
willful misconduct, gross neglect of duty or criminal acts, unless, at the time
such indemnification is sought, such indemnification in such instance is
permissible under applicable law and regulations, including published rulings of
the Comptroller of the Currency or other appropriate supervisory or regulatory
authority; and provided further that there shall be no indemnification of
Directors, officers, or employees against expenses, penalties, or other payments
incurred in an administrative proceeding or action instituted by an appropriate
regulatory agency which proceeding or action results in a final order assessing
civil money penalties or requiring affirmative action by an individual or
individuals in the form of payments to the Association.
Every person who may be indemnified under the provisions of this Article and who
has been wholly successful on the merits with respect to any Claim shall be
entitled to indemnification as of right. Except as provided in the preceding
sentence, any indemnification under this Article shall be at the sole discretion
of the Board of Directors and shall be made only if the Board of Directors or
the Executive Committee acting by a quorum consisting of Directors who are not
parties to such Claim shall find or if independent legal counsel (who may be the
regular counsel of the Association) selected by the Board of Directors or
Executive Committee whether or not a disinterested quorum exists shall render
their opinion that in view of all of the circumstances then surrounding the
Claim, such indemnification is equitable and in the best interests of the
Association. Among the circumstances to be taken into consideration in arriving
at such a finding or opinion is the existence or non-existence of a contract of
insurance or indemnity under which the Association would be wholly or partially
reimbursed for such indemnification, but the existence or non-existence of such
insurance is not the sole circumstance to be considered nor shall it be wholly
determinative of whether such indemnification shall be
<PAGE>
made. In addition to such finding or opinion, no indemnification under this
Article shall be made unless the Board of Directors or the Executive Committee
acting by a quorum consisting of Directors who are not parties to such Claim
shall find or if independent legal counsel (who may be the regular counsel of
the Association) selected by the Board of Directors or Executive Committee
whether or not a disinterested quorum exists shall render their opinion that the
Directors, officer or employee acted in good faith in what he reasonably
believed to be the best interests of the Association or such other corporation
and further in the case of any criminal action or proceeding, that the Director,
officer or employee reasonably believed his conduct to be lawful. Determination
of any Claim by judgment adverse to a Director, officer or employee by
settlement with or without Court approval or conviction upon a plea of guilty or
of nolo contendere or its equivalent shall not create a presumption that a
Director, officer or employee failed to meet the standards of conduct set forth
in this Article. Expenses incurred with respect to any Claim may be advanced by
the Association prior to the final disposition thereof upon receipt of an
undertaking satisfactory to the Association by or on behalf of the recipient to
repay such amount unless it is ultimately determined that he is entitled to
indemnification under this Article.
The rights of indemnification provided in this Article shall be in addition to
any rights to which any Director, officer or employee may otherwise be entitled
by contract or as a matter of law. Every person who shall act as a Director,
officer or employee of this Association shall be conclusively presumed to be
doing so in reliance upon the right of indemnification provided for in this
Article.
ELEVENTH. These Articles of Association may be amended at any regular or special
meeting of the shareholders by the affirmative vote of the holders of a majority
of the stock of this Association, unless the vote of the holders of a greater
amount of stock is required by law, and in that case by the vote of the holders
of such greater amount. The Association's Board of Directors may propose one or
more amendments to the Articles of Association for submission to the
shareholders.
<PAGE>
EXHIBIT 2
A COPY OF THE CERTIFICATE OF AUTHORITY OF THE
TRUSTEE TO COMMENCE BUSINESS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter No.
16235) is a National Banking Association formed under the laws of the United
States and is authorized thereunder to transact the business of banking on the
date of this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
15th day of September, 1999.
/s/ John D. Hawke, Jr.
----------------------
Comptroller of the Currency
<PAGE>
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE TRUSTEE
TO EXERCISE CORPORATE TRUST POWERS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter No.
16235) was granted, under the hand and seal of the Comptroller, the right to act
in all fiduciary capacities authorized under the provisions of the Act of
Congress approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a, and that the
authority so granted remains in full force and effect on the date of this
Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
15th day of September, 1999.
/s/ John D. Hawke, Jr.
----------------------
Comptroller of the Currency
EXHIBIT 4
A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
BY-LAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
<PAGE>
SECTION 1.01. ANNUAL MEETING. The regular annual meeting of the shareholders of
the Bank for the election of Directors and for the transaction of such business
as may properly come before the meeting shall be held at its main office, or
other convenient place duly authorized by the Board of Directors, on the same
day upon which any regular or special Board meeting is held from and including
the first Monday of January to, and including, the fourth Monday of February of
each year, or on the next succeeding banking day, if the day fixed falls on a
legal holiday. If from any cause, an election of Directors is not made on the
day fixed for the regular meeting of the shareholders or, in the event of a
legal holiday, on the next succeeding banking day, the Board of Directors shall
order the election to be held on some subsequent day, as soon thereafter as
practicable, according to the provisions of law; and notice thereof shall be
given in the manner herein provided for the annual meeting. Notice of such
annual meeting shall be given by or under the direction of the Secretary, or
such other officer as may be designated by the Chief Executive Officer, by
first-class mail, postage prepaid, to all shareholders of record of the Bank at
their respective addresses as shown upon the books of the Bank mailed not less
than ten days prior to the date fixed for such meeting.
SECTION 1.02. SPECIAL MEETINGS. A special meeting of the shareholders of the
Bank may be called at any time by the Board of Directors or by any three or more
shareholders owning, in the aggregate, not less than ten percent of the stock of
the Bank. Notice of any special meeting of the shareholders called by the Board
of Directors, stating the time, place and purpose of the meeting, shall be given
by or under the direction of the Secretary, or such other officer as is
designated by the Chief Executive Officer, by first-class mail, postage prepaid,
to all shareholders of record of the Bank at their respective addresses as shown
upon the books of the Bank mailed not less than ten days prior to the date fixed
for such meeting. Any special meeting of shareholders shall be conducted and its
proceedings recorded in the manner prescribed in these By-Laws for annual
meetings of shareholders.
SECTION 1.03. SECRETARY OF MEETING OF SHAREHOLDERS. The Board of Directors may
designate a person to be the secretary of the meeting of shareholders. In the
absence of a presiding officer, as designated by these By-Laws, the Board of
Directors may designate a person to act as the presiding officer. In the event
the Board of Directors fails to designate a person to preside at a meeting of
shareholders and a secretary of such meeting, the shareholders present or
represented shall elect a person to preside and a person to serve as secretary
of the meeting. The secretary of the meeting of shareholders shall cause the
returns made by the judges of election and other proceedings to be recorded in
the minute books of the Bank. The presiding officer shall notify the
Directors-elect of their election and to meet forthwith for the organization of
the new Board of Directors. The minutes of the meeting shall be signed by the
presiding officer and the secretary designated for the meeting.
SECTION 1.04. JUDGES OF ELECTION. The Board of Directors may appoint as many as
three shareholders to be judges of the election, who shall hold and conduct the
same, and who shall, after the election has been held, notify, in writing over
their signatures, the secretary of the meeting of shareholders of the result
thereof and the names of the Directors elected; provided, however, that upon
failure for any reason of any judge or judges of election, so appointed by the
Directors, to serve, the presiding officer of the meeting shall appoint other
shareholders or their proxies to fill the vacancies. The judges of election, at
the request of the chairman of the meeting, shall act as tellers of any other
<PAGE>
vote by ballot taken at such meeting, and shall notify, in writing over their
signature, the secretary of the Board of Directors of the result thereof.
SECTION 1.05. PROXIES. In all elections of Directors, each shareholder of
record, who is qualified to vote under the provisions of Federal Law, shall have
the right to vote the number of shares of record in such shareholder's name for
as many persons as there are Directors to be elected, or to cumulate such shares
as provided by Federal Law. In deciding all other questions at meetings of
shareholders, each shareholder shall be entitled to one vote on each share of
stock of record in such shareholder's name. Shareholders may vote by proxy duly
authorized in writing. All proxies used at the annual meeting shall be secured
for that meeting only, or any adjournment thereof, and shall be dated, if not
dated by the shareholder, as of the date of the receipt thereof. No officer or
employee of this Bank may act as proxy.
SECTION 1.06. QUORUM. Holders of record of a majority of the shares of the
capital stock of the Bank, eligible to be voted, present either in person or by
proxy, shall constitute a quorum for the transaction of business at any meeting
of shareholders, but shareholders present at any meeting and constituting less
than a quorum may, without further notice, adjourn the meeting from time to time
until a quorum is obtained. A majority of the votes cast shall decide every
question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
DIRECTORS
SECTION 2.01. QUALIFICATIONS. Each Director shall have the qualifications
prescribed by law. No person elected as a Director may exercise any of the
powers of office until such Director has taken the oath of such office.
SECTION 2.02. VACANCIES. Directors of the Bank shall hold office for one year or
until their successors are elected and qualified. Any vacancy in the Board shall
be filled by appointment of the remaining Directors, and any Director so
appointed shall hold office until the next election.
SECTION 2.03. ORGANIZATION MEETING. The Directors elected by the shareholders
shall meet for organization of the new Board of Directors at the time and place
fixed by the presiding officer of the annual meeting. If at the time fixed for
such meeting there is no quorum present, the Directors in attendance may adjourn
from time to time until a quorum is obtained. A majority of the number of
Directors elected by the shareholders shall constitute a quorum for the
transaction of business.
SECTION 2.04. REGULAR MEETINGS. The regular meetings of the Board of Directors
shall be held at such date, time and place as the Board may previously
designate, or should the Board fail to so designate, at such date, time and
place as the Chairman of the Board, Chief Executive Officer, or President may
fix. Whenever a quorum is not present, the Directors in attendance shall adjourn
the meeting to a time not later than the date fixed by the By-Laws for the next
succeeding regular meeting of the Board. Members of the Board of Directors may
participate in such meetings through use of conference telephone or
<PAGE>
similar communications equipment, so long as all members participating in such
meetings can hear one another.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the Board of Directors shall
be held at the call of the Chairman of the Board, Chief Executive Officer, or
President, or at the request of two or more Directors. Any special meeting may
be held at such place and at such time as may be fixed in the call. Written or
oral notice shall be given to each Director not later than the day next
preceding the day on which the special meeting is to be held, which notice may
be waived in writing. The presence of a Director at any meeting of the Board of
Directors shall be deemed a waiver of notice thereof by such Director. Whenever
a quorum is not present, the Directors in attendance shall adjourn the special
meeting from day to day until a quorum is obtained. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.06. QUORUM. A majority of the Directors shall constitute a quorum at
any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as herein
defined, but at least one-third and not less than two of the authorized number
of Directors are present at a meeting of the Directors, business of the Bank may
be transacted and matters before the Board approved or disapproved by the
unanimous vote of the Directors present.
SECTION 2.07. COMPENSATION. Each member of the Board of Directors shall receive
such fees for attendance at Board and Board committee meetings and such fees for
service as a Director, irrespective of meeting attendance, as from time to time
are fixed by resolution of the Board; provided, however, that payment hereunder
shall not be made to a Director for meetings attended and/or Board service which
are not for the Bank's sole benefit and which are concurrent and duplicative
with meetings attended or Board service for an affiliate of the Bank for which
the Director receives payment; and provided further that fees hereunder shall
not be paid in the case of any Director in the regular employment of the Bank or
of one of its affiliates. Each member of the Board of Directors, whether or not
such Director is in the regular employment of the Bank or of one of its
affiliates, shall be reimbursed for travel expenses incident to attendance at
Board and Board committee meetings.
SECTION 2.08. EXECUTIVE COMMITTEE. There may be a standing committee of the
Board of Directors known as the Executive Committee which shall possess and
exercise, when the Board is not in session, all the powers of the Board that may
lawfully be delegated. The Executive Committee shall consist of at least three
Board members, one of whom shall be the Chairman of the Board, Chief Executive
Officer or the President. The other members of the Executive Committee shall be
appointed by the Chairman of the Board, the Chief Executive Officer, or the
President, with the approval of the Board, and who shall continue as members of
the Executive Committee until their successors are appointed, provided, however,
that any member of the Executive Committee may be removed by the Board upon a
majority vote thereof at any regular or special meeting of the Board. The
Chairman, Chief Executive Officer, or President shall fill any vacancy in the
Executive Committee by the appointment of another Director, subject to the
approval of
<PAGE>
the Board of Directors. The Executive Committee shall meet at the call of the
Chairman, Chief Executive Officer, or President or any two members thereof at
such time or times and place as may be designated. In the event of the absence
of any member or members of the Executive Committee, the presiding member may
appoint a member or members of the Board to fill the place or places of such
absent member or members to serve during such absence. Two members of the
Executive Committee shall constitute a quorum. When neither the Chairman of the
Board, the Chief Executive Officer, nor President are present, the Executive
Committee shall appoint a presiding officer. The Executive Committee shall
report its proceedings and the action taken by it to the Board of Directors.
SECTION 2.09. OTHER COMMITTEES. The Board of Directors may appoint such special
committees from time to time as are in its judgment necessary in the interest of
the Bank.
ARTICLE III
OFFICERS, MANAGEMENT STAFF AND EMPLOYEES
SECTION 3.01. OFFICERS AND MANAGEMENT STAFF. (a) The executive officers of the
Bank shall include a Chairman of the Board, Chief Executive Officer, President,
Chief Financial Officer, Secretary, Security Officer, and may include one or
more Senior Managing Directors or Managing Directors. The Chairman of the Board,
Chief Executive Officer, President, any Senior Managing Director, any Managing
Director, Chief Financial Officer, Secretary, and Security Officer shall be
elected by the Board. The Chairman of the Board, Chief Executive Officer, and
the President shall be elected by the Board from their own number. Such officers
as the Board shall elect from their own number shall hold office from the date
of their election as officers until the organization meeting of the Board of
Directors following the next annual meeting of shareholders, provided, however,
that such officers may be relieved of their duties at any time by action of the
Board of Directors, in which event all the powers incident to their office shall
immediately terminate. The Chairman of the Board, Chief Executive Officer, or
the President shall preside at all meetings of shareholders and meetings of the
Board of Directors.
(b) The management staff of the Bank shall include officers elected by the
Board, officers appointed by the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and such other persons in the employment of the Bank
who, pursuant to authorization by a duly authorized officer of the Bank, perform
management functions and have management responsibilities. Any two or more
offices may be held by the same person except that no person shall hold the
office of Chairman of the Board, Chief Executive Officer and/or President and at
the same time also hold the office of Secretary.
(c) Except as provided in the case of the elected officers who are members of
the Board, all officers and employees, whether elected or appointed, shall hold
office at the pleasure of the Board. Except as otherwise limited by law or these
By-Laws, the Board assigns to the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and/or each of their respective designees the authority
to control all personnel, including elected and appointed officers and employees
of the Bank, to employ or direct the employment of such officers and
<PAGE>
employees as he or she may deem necessary, including the fixing of salaries and
the dismissal of such officers and employees at pleasure, and to define and
prescribe the duties and responsibilities of all officers and employees of the
Bank, subject to such further limitations and directions as he or she may from
time to time deem appropriate.
(d) The Chairman of the Board, the Chief Executive Officer, the President, any
Senior Managing Director, any Managing Director, the Chief Financial Officer,
and any other officer of the Bank, to the extent that such officer is authorized
in writing by the Chairman of the Board, the Chief Executive Officer, the
President, any Senior Managing Director, any Managing Director, or the Chief
Financial Officer may appoint persons other than officers who are in employment
of the Bank to serve in management positions and in connection therewith, the
appointing officer may assign such title, salary, responsibilities and functions
as are deemed appropriate, provided, however, that nothing contained herein
shall be construed as placing any limitation on the authority of the Chairman of
the Board, the Chief Executive Officer, the President, any Senior Managing
Director, any Managing Director, or the Chief Financial Officer as provided in
this and other sections of these By-Laws.
(e) The Senior Managing Directors and the Managing Directors of the Bank shall
have general and active authority over the management of the business of the
Bank, shall see that all orders and resolutions of the Board of Directors are
carried into effect, and shall do or cause to be done all things necessary or
proper to carry on the business of the Bank in accordance with provisions of
applicable law and regulations. Each Senior Managing Director and Managing
Director shall perform all duties incident to his or her office and such other
and further duties, as may from time to time be required by the Chief Executive
Officer, the President, the Board of Directors, or the shareholders. The
specification of authority in these By-Laws wherever and to whomever granted
shall not be construed to limit in any manner the general powers of delegation
granted to a Senior Managing Director or a Managing Director in conducting the
business of the Bank. In the absence of a Senior Managing Director or a Managing
Director, such officer as is designated by the Senior Managing Director or the
Managing Director shall be vested with all the powers and perform all the duties
of the Senior Managing Director or the Managing Director as defined by these
By-Laws.
(f) Each Managing Director who is assigned oversight of one or more trust
service offices shall appoint a management committee known as the Investment
Management and Trust Committee consisting of the Managing Director of the trust
service offices and at least three other members who shall be capable and
experienced officers of the Bank appointed from time to time by the Managing
Director and who shall continue as members of the Investment Management and
Trust Committee until their successors are appointed, provided, however, that
any member of the Investment Management and Trust Committee may be removed by
the Managing Director as provided in this and other sections of these By-Laws.
The Managing Director shall fill any vacancy in the Investment Management and
Trust Committee by the appointment of another capable and experienced officer of
the Bank. Each Investment Management and Trust Committee shall meet at such
date, time and place as the Managing Director shall fix. In the event of the
absence of any member or members of the Investment Management and Trust
Committee, the Managing Director may, in his or her discretion, appoint another
officer of the Bank to fill the place or places of such absent member or members
to serve during such absence. A majority of each Investment Management and Trust
Committee shall constitute a quorum. Each Investment
<PAGE>
Management and Trust Committee shall carry out the policies of the Bank, as
adopted by the Board of Directors, which shall be formulated and executed in
accordance with State and Federal Law, Regulations of the Comptroller of the
Currency, and sound fiduciary principles. In carrying out the policies of the
Bank, each Investment Management and Trust Committee is hereby authorized to
establish management teams whose duties and responsibilities shall be
specifically set forth in the policies of the Bank. Each such management team
shall report such proceedings and the actions taken thereby to the Investment
Management and Trust Committee. Each Managing Director shall then report such
proceedings and the actions taken thereby to the Board of Directors.
SECTION 3.02. POWERS AND DUTIES OF MANAGEMENT STAFF. Pursuant to the fiduciary
powers granted to this Bank under the provisions of Federal Law and Regulations
of the Comptroller of the Currency, the Chairman of the Board, the Chief
Executive Officer, the President, the Senior Managing Directors, the Managing
Directors, the Chief Financial Officer, and those officers so designated and
authorized by the Chairman of the Board, the Chief Executive Officer, the
President, the Senior Managing Directors, the Managing Directors, or the Chief
Financial Officer are authorized for and on behalf of the Bank, and to the
extent permitted by law, to make loans and discounts; to purchase or acquire
drafts, notes, stocks, bonds, and other securities for investment of funds held
by the Bank; to execute and purchase acceptances; to appoint, empower and direct
all necessary agents and attorneys; to sign and give any notice required to be
given; to demand payment and/or to declare due for any default any debt or
obligation due or payable to the Bank upon demand or authorized to be declared
due; to foreclose any mortgages; to exercise any option, privilege or election
to forfeit, terminate, extend or renew any lease; to authorize and direct any
proceedings for the collection of any money or for the enforcement of any right
or obligation; to adjust, settle and compromise all claims of every kind and
description in favor of or against the Bank, and to give receipts, releases and
discharges therefor; to borrow money and in connection therewith to make,
execute and deliver notes, bonds or other evidences of indebtedness; to pledge
or hypothecate any securities or any stocks, bonds, notes or any property real
or personal held or owned by the Bank, or to rediscount any notes or other
obligations held or owned by the Bank, whenever in his or her judgment it is
reasonably necessary for the operation of the Bank; and in furtherance of and in
addition to the powers hereinabove set forth to do all such acts and to take all
such proceedings as in his or her judgment are necessary and incidental to the
operation of the Bank.
SECTION 3.03. SECRETARY. The Secretary or such other officers as may be
designated by the Chief Executive Officer shall have supervision and control of
the records of the Bank and, subject to the direction of the Chief Executive
Officer, shall undertake other duties and functions usually performed by a
corporate secretary. Other officers may be designated by the Secretary as
Assistant Secretary to perform the duties of the Secretary.
SECTION 3.04. EXECUTION OF DOCUMENTS. Any member of the Bank's management staff
or any employee of the Bank designated as an officer on the Bank's payroll
system is hereby authorized for and on behalf of the Bank to sell, assign,
lease, mortgage, transfer, deliver and convey any real or personal property,
including shares of stock, bonds, notes, certificates of indebtedness (including
the assignment and redemption of registered United States obligations) and all
other forms of intangible property now or hereafter owned by or standing in the
name of the Bank, or its nominee, or held by the Bank as collateral security,
<PAGE>
or standing in the name of the Bank, or its nominee, in any fiduciary capacity
or in the name of any principal for whom this Bank may now or hereafter be
acting under a power of attorney or as agent, and to execute and deliver such
partial releases from any discharges or assignments of mortgages and assignments
or surrender of insurance policies, deeds, contracts, assignments or other
papers or documents as may be appropriate in the circumstances now or hereafter
held by the Bank in its own name, in a fiduciary capacity, or owned by any
principal for whom this Bank may now or hereafter be acting under a power of
attorney or as agent; provided, however, that, when necessary, the signature of
any such person shall be attested or witnessed in each case by another officer
of the Bank. Any member of the Bank's management staff or any employee of the
Bank designated as an officer on the Bank's payroll system is hereby authorized
for and on behalf of the Bank to execute any indemnity and fidelity bonds, trust
agreements, proxies or other papers or documents of like or different character
necessary, desirable or incidental to the appointment of the Bank in any
fiduciary capacity, the conduct of its business in any fiduciary capacity, or
the conduct of its other banking business; to sign and issue checks, drafts,
orders for the payment of money and certificates of deposit; to sign and endorse
bills of exchange, to sign and countersign foreign and domestic letters of
credit, to receive and receipt for payments of principal, interest, dividends,
rents, fees and payments of every kind and description paid to the Bank, to sign
receipts for money or other property acquired by or entrusted to the Bank, to
guarantee the genuineness of signatures on assignments of stocks, bonds or other
securities, to sign certifications of checks, to endorse and deliver checks,
drafts, warrants, bills, notes, certificates of deposit and acceptances in all
business transactions of the Bank; also to foreclose any mortgage, to execute
and deliver receipts for any money or property; also to sign stock certificates
for and on behalf of this Bank as transfer agent or registrar, and to
authenticate bonds, debentures, land or lease trust certificates or other forms
of security issued pursuant to any indenture under which this Bank now or
hereafter is acting as trustee or in any other fiduciary capacity; to execute
and deliver various forms of documents or agreements necessary to effectuate
certain investment strategies for various fiduciary or custody customers of the
Bank, including, without limitation, exchange funds, options, both listed and
over-the-counter, commodities trading, futures trading, hedge funds, limited
partnerships, venture capital funds, swap or collar transactions and other
similar investment vehicles for which the Bank now or in the future may deem
appropriate for investment of fiduciary customers or in which non-fiduciary
customers may direct investment by the Bank.
Without limitation on the foregoing, the Chief Executive Officer, Chairman of
the Board, or President of the Bank shall have the authority from time to time
to appoint officers of the Bank as Vice President for the sole purpose of
executing releases or other documents incidental to the conduct of the Bank's
business in any fiduciary capacity where required by state law or the governing
document. In addition, other persons in the employment of the Bank or its
affiliates may be authorized by the Chief Executive Officer, Chairman of the
Board, President, Senior Managing Directors, Managing Directors, or Chief
Financial Officer to perform acts and to execute the documents described in the
paragraph above, subject, however, to such limitations and conditions as are
contained in the authorization given to such person.
<PAGE>
SECTION 3.05. PERFORMANCE BOND. All officers and employees of the Bank shall be
bonded for the honest and faithful performance of their duties for such amount
as may be prescribed by the Board of Directors.
ARTICLE IV
STOCKS AND STOCK CERTIFICATES
SECTION 4.01. STOCK CERTIFICATES. The shares of stock of the Bank shall be
evidenced by certificates which shall bear the signature of the Chairman of the
Board, the Chief Executive Officer, or the President (which signature may be
engraved, printed or impressed), and shall be signed manually by the Secretary,
or any other officer appointed by the Chief Executive Officer for that purpose.
In case any such officer who has signed or whose facsimile signature has been
placed upon such certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Bank with the same effect as if
such officer had not ceased to be such at the time of its issue. Each such
certificate shall bear the corporate seal of the Bank, shall recite on its face
that stock represented thereby is transferable only upon the books of the Bank
when properly endorsed and shall recite such other information as is required by
law and deemed appropriate by the Board. The corporate seal may be facsimile
engraved or printed.
SECTION 4.02. STOCK ISSUE AND TRANSFER. The shares of stock of the Bank shall be
transferable only upon the stock transfer books of the Bank and, except as
hereinafter provided, no transfer shall be made or new certificates issued
except upon the surrender for cancellation of the certificate or certificates
previously issued therefor. In the case of the loss, theft, or destruction of
any certificate, a new certificate may be issued in place of such certificate
upon the furnishing of an affidavit setting forth the circumstances of such
loss, theft, or destruction and indemnity satisfactory to the Chairman of the
Board, the Chief Executive Officer, or the President. The Board of Directors or
the Chairman of the Board, Chief Executive Officer, or the President may
authorize the issuance of a new certificate therefor without the furnishing of
indemnity. Stock transfer books, in which all transfers of stock shall be
recorded, shall be provided. The stock transfer books may be closed for a
reasonable period and under such conditions as the Board of Directors may at any
time determine, for any meeting of shareholders, the payment of dividends or any
other lawful purpose. In lieu of closing the transfer books, the Board of
Directors may, in its discretion, fix a record date and hour constituting a
reasonable period prior to the day designated for the holding of any meeting of
the shareholders or the day appointed for the payment of any dividend, or for
any other purpose at the time as of which shareholders entitled to notice of and
to vote at any such meeting or to receive such dividend or to be treated as
shareholders for such other purpose shall be determined, and only shareholders
of record at such time shall be entitled to notice of or to vote at such meeting
or to receive such dividends or to be treated as shareholders for such other
purpose.
ARTICLE V
MISCELLANEOUS PROVISIONS
<PAGE>
SECTION 5.01. SEAL. The seal of the Bank shall be circular in form with "SEAL"
in the center, and the name "BANK ONE TRUST COMPANY, NA" located clockwise
around the upper half of the seal.
SECTION 5.02. MINUTE BOOK. The organization papers of this Bank, the Articles of
Association, the returns of judges of elections, the By-Laws and any amendments
thereto, the proceedings of all regular and special meetings of the shareholders
and of the Board of Directors, and reports of the committees of the Board of
Directors shall be recorded in the minute books of the Bank. The minutes of each
such meeting shall be signed by the presiding officer and attested by the
secretary of the meeting.
SECTION 5.03. CORPORATE POWERS. The corporate existence of the Bank shall
continue until terminated in accordance with the laws of the United States. The
purpose of the Bank shall be to carry on the general business of a commercial
bank trust department and to engage in such activities as are necessary,
incident, or related to such business. The Articles of Association of the Bank
shall not be amended, or any other provision added elsewhere in the Articles
expanding the powers of the Bank, without the prior approval of the Comptroller
of the Currency.
SECTION 5.04. AMENDMENT OF BY-LAWS. The By-Laws may be amended, altered or
repealed, at any regular or special meeting of the Board of Directors, by a vote
of a majority of the Directors.
As amended April 24, 1991 Section 3.01 (Officers and Management Staff)
Section 3.02 (Chief Executive Officer)
Section 3.03 (Powers and Duties of Officers and
Management Staff)
Section 3.05 (Execution of Documents)
As amended January 27, 1995 Section 2.04 (Regular Meetings)
Section 2.05 (Special Meetings)
Section 3.01(f) (Officers and Management Staff)
Section 3.03(e) (Powers and Duties of Officers
and Management Staff)
Section 5.01 (Seal)
Amended and restated in its entirety effective May 1, 1996
As amended August 1, 1996 Section 2.09 (Trust Examining Committee)
Section 2.10 (Other Committees)
As amended October 16, 1997 Section 3.01 (Officers and Management Staff)
Section 3.02 (Powers and Duties of Officers and
Management Staff)
Section 3.04 (Execution of Documents)
<PAGE>
As amended January 1, 1998 Section 1.01 (Annual Meeting)
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
April 4, 2000
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an amended and restated declaration of
trust between State Street Capital Trust IV and Bank One Trust Company, National
Association, as Trustee, 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,
Bank One Trust Company, National Association
By: /s/ Sandra L. Caruba
Sandra L. Caruba
Vice President
<PAGE>
EXHIBIT 7
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/99 State #: 391581 FFIEC 032
Address: 100 Broad Street Vendor ID: D Cert #: 21377 Page RC-1
City, State Zip: Columbus, OH 43271 Transit #: 04400003
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in thousands C300
------
RCON BIL MIL THOU
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCON
a. Noninterest-bearing balances and currency and coin(1) ........... 0081 123,692 1.a
b. Interest-bearing balances(2) .................................... 0071 17,687 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 5,860 2.b
3. Federal funds sold and securities purchased under agreements to
resell ............................................................. 1350 364,813 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCON
RC-C) .............................................................. 2122 58,020 4.a
b. LESS: Allowance for loan and lease losses ....................... 3123 10 4.b
c. LESS: Allocated transfer risk reserve ........................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCON
reserve (item 4.a minus 4.b and 4.c) ............................ 2125 58,010 4.d
5. Trading assets (from Schedule RD-D) ................................ 3545 0 5.
6. Premises and fixed assets (including capitalized leases) ........... 2145 22,547 6.
7. Other real estate owned (from Schedule RC-M) ....................... 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) ..................................... 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding ....... 2155 0 9.
10. Intangible assets (from Schedule RC-M) ............................. 2143 27,151 10.
11. Other assets (from Schedule RC-F) .................................. 2160 141,759 11.
12. Total assets (sum of items 1 through 11) ........................... 2170 761,519 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> <C> <C> <C> <C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/99 State #: 391581 FFIEC 032
Address: 100 East Broad Street Vendor ID: D Cert #" 21377 Page RC-2
City, State Zip: Columbus, OH 43271 Transit #: 04400003
Schedule RC-Continued
</TABLE>
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part 1) ........................................... 2200 589,846 13.a
(1) Noninterest-bearing(1) ............................................ 6631 517,140 13.a1
(2) Interest-bearing .................................................. 6636 72,706 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)
(1) Noninterest bearing
(2) Interest-bearing
14. Federal funds purchased and securities sold under agreements
to repurchase: ........................................................... RCFD
2800 0 14
15. a. Demand notes issued to the U.S. Treasury .............................. RCON
2840 0 15.a
b. Trading Liabilities(from Sechedule RC-D) .............................. RCFD
3548 0 15.b
16. Other borrowed money: RCON
a. With original maturity of one year or less ............................ 2332 0 16.a
b. With original maturity of more than one year .......................... A547 0 16.b
c. With original maturity of more than three years ....................... A548 0 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding .................. 2920 0 18.
19. Subordinated notes and debentures ........................................ 3200 0 19.
20. Other liabilities (from Schedule RC-G) ................................... 2930 63,244 20.
21. Total liabilities (sum of items 13 through 20) ........................... 2948 653,090 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ............................ 3838 0 23.
24. Common stock ............................................................. 3230 800 24.
25. Surplus (exclude all surplus related to preferred stock) ................. 3839 45,157 25.
26. a. Undivided profits and capital reserves ................................ 3632 62,458 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities ............................................................ 8434 14 26.b
c. Accumulated net gains (losses) on cash flow hedges .................... 4336 0 26.c
27. Cumulative foreign currency translation adjustments
28. Total equity capital (sum of items 23 through 27) ........................ 3210 108,429 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) .................................... 3300 761,519 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.
