Exhibit 4.2


 




 





AMENDED
AND RESTATED TRUST AGREEMENT


 


of


 


STATE STREET CAPITAL TRUST III


 


among


 


STATE STREET CORPORATION


as Depositor


 


U.S. BANK NATIONAL ASSOCIATION,


as Property Trustee,


 


U.S. BANK TRUST NATIONAL ASSOCIATION,


as Delaware Trustee


 


the Administrative Trustees (as named herein)


 


and the several Holders of the Trust
Securities


 


Dated as of January 25, 2008




 





 

















 


Certain Sections of this Trust
Agreement relating to Section 310 through 318, inclusive, of the Trust
Indenture Act of 1939:


 


	
  Trust 

  Indenture 

  Act Section

  	
   

  	
  Trust 

  Agreement 

  Section

  
	
  §
  310(a)(1)

  	
   

  	
  8.7

  
	
  (a)(2)

  	
   

  	
  8.7

  
	
  (a)(3)

  	
   

  	
  8.9

  
	
  (a)(4)

  	
   

  	
  2.7(a)(ii)

  
	
  (b)

  	
   

  	
  8.8

  
	
  (c)

  	
   

  	
  Not
  applicable

  
	
  §
  311(a)

  	
   

  	
  8.13

  
	
  (b)

  	
   

  	
  8.13

  
	
  §
  312(a)

  	
   

  	
  5.7

  
	
  (b)

  	
   

  	
  5.7

  
	
  (c)

  	
   

  	
  5.7

  
	
  §
  313(a)

  	
   

  	
  8.14(a),
  8.14(b)

  
	
  (b)

  	
   

  	
  8.14(b)

  
	
  (c)

  	
   

  	
  12.8

  
	
  (d)

  	
   

  	
  8.14(c)

  
	
  §
  314(a)

  	
   

  	
  8.15

  
	
  (b)

  	
   

  	
  Not
  applicable

  
	
  (c)(1)

  	
   

  	
  8.16

  
	
  (c)(2)

  	
   

  	
  8.16

  
	
  (c)(3)

  	
   

  	
  Not
  applicable

  
	
  (d)

  	
   

  	
  Not
  applicable

  
	
  (e)

  	
   

  	
  1.1,
  8.16

  
	
  §
  315(a)

  	
   

  	
  8.1(a),
  8.3(a)

  
	
  (b)

  	
   

  	
  8.2,
  12.8

  
	
  (c)

  	
   

  	
  8.1(d)

  
	
  (d)

  	
   

  	
  8.1(d),
  8.3

  
	
  (e)

  	
   

  	
  Not
  applicable

  
	
  §
  316(a)

  	
   

  	
  Not
  applicable

  
	
  (a)(1)(A)

  	
   

  	
  Not
  applicable

  
	
  (a)(1)(B)

  	
   

  	
  5.16(e)

  
	
  (a)(2)

  	
   

  	
  Not
  applicable

  
	
  (b)

  	
   

  	
  5.16

  
	
  (c)

  	
   

  	
  6.7

  
	
  §
  317(a)(1)

  	
   

  	
  Not
  applicable

  
	
  (a)(2)

  	
   

  	
  Not
  applicable

  
	
  (b)

  	
   

  	
  5.9

  
	
  §
  318(a)

  	
   

  	
  12.11

  
	
  (b)

  	
   

  	
  12.11

  



 


Note:                   This reconciliation and tie shall not, for any
purpose, be deemed to be part of the Trust Agreement.


 

















 


TABLE OF CONTENTS


 


ARTICLE I 


 


Defined Terms


 


	
  SECTION 1.1.

  	
  Definitions

  	
  2

  



 


ARTICLE II


 


Continuation of the Issuer
Trust; Issuance of Capital Securities; And Related Matters


 


	
  SECTION 2.1.

  	
  Name

  	
  21

  
	
  SECTION 2.2.

  	
  Office of the Delaware Trustee; Principal Place of Business

  	
  21

  
	
  SECTION 2.3.

  	
  Initial Contribution of Trust Property; Organizational Expenses

  	
  21

  
	
  SECTION 2.4.

  	
  Issuance of the Capital Securities

  	
  21

  
	
  SECTION 2.5.

  	
  Issuance of the Common Securities; Subscription and Purchase of
  Junior Subordinated Debentures

  	
  22

  
	
  SECTION 2.6.

  	
  Declaration of Trust

  	
  22

  
	
  SECTION 2.7.

  	
  Authorization to Enter into Certain Transactions

  	
  23

  
	
  SECTION 2.8.

  	
  Assets of Issuer Trust

  	
  28

  
	
  SECTION 2.9.

  	
  Title to Trust Property

  	
  28

  



 


ARTICLE III


 


Payment Account


 


	
  SECTION 3.1.

  	
  Payment Account

  	
  28

  



 


ARTICLE IV


 


Distributions; Redemption,
Etc. 


 


	
  SECTION 4.1.

  	
  Distributions

  	
  28

  
	
  SECTION 4.2.

  	
  Redemption

  	
  31

  
	
  SECTION 4.3.

  	
  Subordination of Common Securities

  	
  34

  
	
  SECTION 4.4.

  	
  Payment Procedures

  	
  36

  
	
  SECTION 4.5.

  	
  Tax Returns and Reports

  	
  36

  
	
  SECTION 4.6.

  	
  Payment of Expenses of the Issuer Trust

  	
  36

  
	
  SECTION 4.7.

  	
  Payments under Indenture or Pursuant to Direct Actions

  	
  36

  
	
  SECTION 4.8.

  	
  Combination of Stripped APEX and Normal APEX after Stock Purchase
  Date

  	
  37

  



 


i

















 


ARTICLE V


 


Trust Securities
Certificates


 


	
  SECTION 5.1.

  	
  Initial Ownership

  	
  38

  
	
  SECTION 5.2.

  	
  The Trust Securities Certificates

  	
  38

  
	
  SECTION 5.3.

  	
  Execution and Delivery of Trust Securities Certificates

  	
  38

  
	
  SECTION 5.4.

  	
  Registration of Transfer and Exchange of Capital Securities
  Certificates

  	
  38

  
	
  SECTION 5.5.

  	
  Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates

  	
  40

  
	
  SECTION 5.6.

  	
  Persons Deemed Securityholders

  	
  40

  
	
  SECTION 5.7.

  	
  Access to List of Securityholders’ Names and Addresses

  	
  40

  
	
  SECTION 5.8.

  	
  Maintenance of Office or Agency

  	
  40

  
	
  SECTION 5.9.

  	
  Appointment of Paying Agent

  	
  41

  
	
  SECTION 5.10.

  	
  Ownership of Common Securities by Depositor

  	
  42

  
	
  SECTION 5.11.

  	
  Book-Entry Capital Securities Certificates; Common Securities Certificate

  	
  42

  
	
  SECTION 5.12.

  	
  Notices to Clearing Agency

  	
  44

  
	
  SECTION 5.13.

  	
  Exchanges

  	
  44

  
	
  SECTION 5.14.

  	
  Remarketing Elections

  	
  46

  
	
  SECTION 5.15.

  	
  Definitive Capital Securities Certificates

  	
  49

  
	
  SECTION 5.16.

  	
  Rights of Securityholders; Waivers of Past Defaults

  	
  50

  
	
  SECTION 5.17.

  	
  CUSIP Numbers

  	
  53

  
	
  SECTION 5.18.

  	
  Remarketing Procedures

  	
  53

  



 


ARTICLE VI


 


Acts of Holders; Meetings;
Voting


 


	
  SECTION 6.1.

  	
  Limitations on Voting Rights

  	
  54

  
	
  SECTION 6.2.

  	
  Notice of Meetings

  	
  56

  
	
  SECTION 6.3.

  	
  Meetings of Securityholders of the Capital Securities

  	
  56

  
	
  SECTION 6.4.

  	
  Voting Rights

  	
  57

  
	
  SECTION 6.5.

  	
  Proxies, Etc

  	
  57

  
	
  SECTION 6.6.

  	
  Holder Action by Written Consent

  	
  57

  
	
  SECTION 6.7.

  	
  Record Date for Voting and Other Purposes

  	
  58

  
	
  SECTION 6.8.

  	
  Acts of Holders

  	
  58

  
	
  SECTION 6.9.

  	
  Inspection of Records

  	
  59

  
	
  SECTION 6.10.

  	
  All Votes Must Be Made by a United States Person

  	
  59

  



 


ARTICLE VII


 


Representations and
Warranties


 


	
  SECTION 7.1.

  	
  Representations and Warranties of the Property Trustee and the
  Delaware Trustee

  	
  59

  



 


ii

















 


	
  SECTION 7.2.

  	
  Representations and Warranties of Depositor

  	
  61

  



 


ARTICLE VIII


 


The Issuer Trustees


 


	
  SECTION 8.1.

  	
  Certain Duties and Responsibilities

  	
  61

  
	
  SECTION 8.2.

  	
  Certain Notices

  	
  63

  
	
  SECTION 8.3.

  	
  Certain Rights of Property Trustee

  	
  64

  
	
  SECTION 8.4.

  	
  Not Responsible for Recitals or Issuance of Securities

  	
  66

  
	
  SECTION 8.5.

  	
  May Hold Securities

  	
  66

  
	
  SECTION 8.6.

  	
  Compensation; Indemnity; Fees

  	
  66

  
	
  SECTION 8.7.

  	
  Corporate Property Trustee Required; Eligibility of Issuer Trustees
  and Administrative Trustees

  	
  67

  
	
  SECTION 8.8.

  	
  Conflicting Interests

  	
  68

  
	
  SECTION 8.9.

  	
  Co-Trustees and Separate Trustee

  	
  68

  
	
  SECTION 8.10.

  	
  Resignation and Removal; Appointment of Successor

  	
  69

  
	
  SECTION 8.11.

  	
  Acceptance of Appointment by Successor

  	
  71

  
	
  SECTION 8.12.

  	
  Merger, Conversion, Consolidation or Succession to Business

  	
  72

  
	
  SECTION 8.13.

  	
  Preferential Collection of Claims Against Depositor or Issuer Trust

  	
  72

  
	
  SECTION 8.14.

  	
  Reports by Property Trustee

  	
  73

  
	
  SECTION 8.15.

  	
  Reports to the Property Trustee

  	
  73

  
	
  SECTION 8.16.

  	
  Evidence of Compliance with Conditions Precedent

  	
  74

  
	
  SECTION 8.17.

  	
  Number of Issuer Trustees

  	
  74

  
	
  SECTION 8.18.

  	
  Delegation of Power

  	
  74

  



 


ARTICLE IX


 


Dissolution, Liquidation and
Merger


 


	
  SECTION 9.1.

  	
  Perpetual Existence

  	
  75

  
	
  SECTION 9.2.

  	
  Early Termination

  	
  75

  
	
  SECTION 9.3.

  	
  Dissolution

  	
  75

  
	
  SECTION 9.4.

  	
  Liquidation

  	
  75

  
	
  SECTION 9.5.

  	
  Mergers, Consolidations, Amalgamations or Replacements of Issuer
  Trust

  	
  77

  



 


ARTICLE X


 


Qualifying Treasury
Securities


 


	
  SECTION 10.1.

  	
  Qualifying Treasury Securities

  	
  78

  



 


iii

















 


ARTICLE XI


 


Other APEX Related
Provisions


 


	
  SECTION 11.1.

  	
  Agreed Tax Treatment

  	
  79

  



 


ARTICLE XII


 


Miscellaneous Provisions


 


	
  SECTION 12.1.

  	
  Limitation of Rights of Holders

  	
  80

  
	
  SECTION 12.2.

  	
  Amendment

  	
  80

  
	
  SECTION 12.3.

  	
  Separability Clause

  	
  82

  
	
  SECTION 12.4.

  	
  Governing Law

  	
  82

  
	
  SECTION 12.5.

  	
  Payments Due on Non-Business Day

  	
  83

  
	
  SECTION 12.6.

  	
  Successors and Assigns

  	
  83

  
	
  SECTION 12.7.

  	
  Effect of Headings and Table of Contents

  	
  83

  
	
  SECTION 12.8.

  	
  Reports, Notices and Demands

  	
  83

  
	
  SECTION 12.9.

  	
  Agreement Not to Petition

  	
  84

  
	
  SECTION 12.10.

  	
  Trust Indenture Act; Conflict with Trust Indenture Act

  	
  84

  
	
  SECTION 12.11.

  	
  Acceptance of Terms of Trust Agreement, Guarantee Agreement and
  Indenture

  	
  84

  



 


EXHIBITS:


 


Exhibit A – Form of
Capital APEX Certificate


 


Exhibit B – Form of
Common Securities Certificate


 


Exhibit C – Form of
Normal APEX Certificate


 


Exhibit D – Form of
Stripped APEX Certificate


 


iv
















 


This  AMENDED AND RESTATED TRUST AGREEMENT, dated as of January 25,
2008, among (i) STATE STREET
CORPORATION, a Massachusetts corporation (including any successors or
assigns, the “Depositor”),
(ii) U.S. BANK NATIONAL ASSOCIATION, a national banking association, as
property trustee (in such capacity, the “Property Trustee”), (iii) U.S. BANK TRUST NATIONAL
ASSOCIATION, a Delaware limited purpose trust company (the “Delaware Trustee”), (iv) Sue
Horn, an individual, and Lynne Jiminez, an individual, each of whose address is
c/o State Street Corporation, 2 World Financial Center, 225 Liberty
Street, New York, New York 10281, (each, an “Administrative Trustee,” and together, 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.


 


RECITALS OF THE DEPOSITOR


 


WHEREAS, the
Issuer Trust was established as a statutory trust pursuant to Delaware
Statutory Trust Act and pursuant to the Declaration of Trust, dated as of March 25,
1998 (the “Original Trust Agreement”),
by the trustees named therein and by the execution and filing with the
Secretary of State of the State of Delaware of the Certificate of Trust, filed
on March 25, 1998, as amended on January 23, 2008; and


 


WHEREAS,
pursuant to an instrument of appointment and removal, dated January 17,
2008, (i) the Depositor removed each trustee of the Issuer Trust and
appointed the Issuer Trustees as trustees of the Issuer Trust; 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 of Normal APEX by the Issuer Trust and
their issuance and sale pursuant to the Underwriting Agreement, (iii) the
issuance of Stripped APEX and Capital APEX in Exchange for Normal APEX as
provided in Section 5.13, (iv) the acquisition by the Issuer Trust
from the Depositor of all of the right, title and interest in and to the Junior
Subordinated Debentures, (v) the entering into by the Issuer Trust with
the Depositor of the Stock Purchase Contract Agreement and, pursuant to the
Stock Purchase Contracts evidenced by that Agreement, the purchase by the
Issuer Trust of shares of Preferred Stock on the Stock Purchase Date, and (vi) the
appointment of the Property Trustee and Administrative Trustees.


 


NOW, THEREFORE, in consideration of the
agreements and obligations set forth herein and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged, each party, for
the benefit of the other parties and for the benefit of the Securityholders,
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;


 


(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)  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 Trust Agreement; and


 


(d)  the words “hereby”, “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.


 


“Actual/360 Basis” means, for purposes of calculating the
rate of Distributions, such rate calculated on the basis of a 360-day year and
the number of days actually elapsed.


 


“Additional Amount” means, with respect to Normal APEX and
Capital APEX of a given Liquidation Amount and/or a given period, the amount of
Additional Interest paid by the Depositor on a Like Amount of Junior
Subordinated Debentures for such period.


 


“Additional Distribution Date” means each March 15, June 15,
September 15 and December 15 commencing on the later of the first
such date on which Stripped APEX are Outstanding and June 15, 2008.


 


“Additional Interest” has the meaning specified in the
Original Indenture.


 


“Additional Subordinated Debentures” has the meaning
specified in the Stock Purchase Contract Agreement.


 


“Administrative Trustee” means each of the Persons identified
as an “Administrative Trustee” in the preamble to this Trust Agreement solely
in such Person’s capacity as Administrative Trustee of the Issuer Trust
heretofore formed and continued hereunder and not in such Person’s individual
capacity, or such Administrative Trustee’s successor in interest in such
capacity, or any successor trustee appointed as herein provided.


 


“Affected Series” means, (i) if a proposed action or
inaction or Event of Default or other relevant circumstance relates solely and
specifically to Trust Property, each Series for which such Trust Property
is a Corresponding Asset, (ii) if a proposed action or inaction or Event 


 


2

















 


of Default or
other relevant circumstance does not relate specifically and solely to Trust
Property, then each Series that could reasonably be expected to be
affected by the action proposed or inaction or Event of Default, and (iii) for
purposes of Section 5.16 at any time, the Series of Capital
Securities for which Junior Subordinated Debentures at such time are
Corresponding Assets (that is, (A) for purposes of Section 5.16(b) and
Section 5.16(c), the Capital APEX and, until the Remarketing Settlement
Date, the Normal APEX, (B) for purposes of Section 5.16(d), the
Normal APEX and the Stripped APEX, and (C) for purposes of Section 5.16(e),
(I) if the Event of Default is of the type referred to in clause (a) of
the definition of that term, the Capital APEX and, until the Remarketing
Settlement Date, the Normal APEX, (II) if the Event of Default is of the
type described in paragraph (b) of the definition of that term, the
Normal APEX and Stripped APEX, (III) if the Event of Default is of the
type described in clause (d) of the definition of that term, the Series of
Capital Securities that were to have been redeemed and (IV) if the Event
of Default is of the type described in any of clause (c), (e) or (f) of
the definition of that term, each Series of Capital Securities then
outstanding).


 


“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.


 


“Agent Agreement” has the meaning specified in Section 5.4.


 


“APEX” means each of the Normal APEX, the Stripped APEX and
the Capital APEX.


 


“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 


 


3

















 


bankrupt, or
the taking of corporate action by such Person in furtherance of any such
action.


 


“Bankruptcy Laws” has the meaning specified in Section 12.9.


 


“Board of Directors” means either the board of directors of
any Person or any committee of that board of directors duly authorized to act.


 


“Book-Entry Transfer”
means:


 


(a)  as to Capital
Securities represented by Book-Entry Capital Securities Certificates and as to
Junior Subordinated Debentures represented by global certificates that settle
and clear through a Clearing Agency’s system, transfer or delivery in
accordance with the rules and procedures of the applicable Clearing Agency
(including, in the case of DTC if it is the Clearing Agency, book-entry
deliveries through DTC’s Deposit/Withdrawal at Custodian DWAC system); and


 


(b)  as to U.S. Treasury
securities (including Qualifying Treasury Securities), transfer or delivery in
accordance with the regulations of the United States Department of the Treasury
governing book-entry treasury securities, including those currently at 12
C.F.R. Part 357.


 


“Book-Entry Capital Securities” means Capital Securities,
ownership and transfers of which shall be made through book entries by a
Clearing Agency as provided in Section 5.11.


 


“Book-Entry Capital Securities Certificate” means a Capital
Securities Certificate evidencing ownership of Book-Entry Capital Securities.


 


“Business Day” means any day other than a Saturday, Sunday,
or any other day on which banking institutions and trust companies in
New York, New York, Boston, Massachusetts or Wilmington, Delaware are
permitted or required by any applicable law to close.


 


“Capital APEX” means an undivided preferred beneficial
interest in the Issuer Trust, having a Liquidation Amount of $1,000 per Capital
APEX and having the rights provided for Capital APEX in this Trust Agreement,
including the right to receive Distributions and a Liquidation Distribution as
provided herein.


 


“Capital APEX Certificate” means a certificate evidencing
ownership of Capital APEX, substantially in the form attached as Exhibit A.


 


“Capital APEX Distribution Date” means (i) each March 15
and September 15, commencing on the later of the first such date on which
Capital APEX are Outstanding and September 15, 2008, continuing through
and including the last such date to occur prior to the Remarketing Date for a
Successful Remarketing, and (ii) thereafter for so long as Capital APEX
remain outstanding, each day on which interest is payable on the Junior
Subordinated Debentures.


 


4

















 


“Capital APEX Distribution Rate” means (i) from the
Closing Date to but not including the Remarketing Settlement Date for a
Successful Remarketing, 6.001% per
annum (calculated on a 30/360 Basis), and (ii) thereafter, the rate per annum, whether a fixed rate or a
rate determined pursuant to a formula, determined pursuant to the Remarketing
Agreement in connection with the Remarketing (it being understood and agreed
that, if there is not a Successful Remarketing of the Junior Subordinated
Debentures, the Capital APEX Distribution Rate pursuant to clause (i) shall
remain in effect for so long as Capital APEX are outstanding).


 


“Capital APEX Redemption Date” means, with respect to any
Capital APEX to be redeemed, the date fixed for such redemption by or pursuant
to this Trust Agreement;  provided,
however, that (i) each Junior Subordinated Debentures
Redemption Date shall be a Capital APEX Redemption Date for a Like Amount of
Capital APEX and (ii) if a Successful Remarketing occurs, the first
Business Day after the Stock Purchase Date shall be a Capital APEX Redemption
Date for a redemption in kind pursuant to Section 4.2(d).


 


“Capital APEX Redemption Price” means, with respect to a
redemption of Capital APEX for a Redemption Price payable in cash pursuant to Section 4.2(c) and
the related Capital APEX Redemption Date, the redemption price for a Like
Amount of Junior Subordinated Debentures redeemed on such date in accordance
with the Indenture.


 


“Capital Securities” means the Normal APEX, the Stripped APEX
and the Capital APEX.


 


“Capital Securities Certificate” means a Normal APEX
Certificate, a Stripped APEX Certificate or a Capital APEX Certificate.


 


“Capital Treatment Event” has the meaning specified in the
Indenture Supplement.


 


“Certificate” means a Capital APEX Certificate, a Normal APEX
Certificate, a Stripped APEX Certificate or a Common Securities Certificate.


 


“Certificate Custodian” means, with respect to the Capital
Securities of a Series, the Securities Registrar, as custodian with respect to
the Book-Entry Capital Securities Certificates representing the Capital
Securities of such Series, or any successor entity thereto.


 


“Certificate Depositary Agreement” means the agreement among
the Issuer Trust, the Paying Agent and DTC, as the initial Clearing Agency,
dated as of the Closing Date.


 


“Certificate of Designation” means the “Certificate of
Designation of the Non-Cumulative Perpetual Preferred Stock, Series A
without par value of State Street Corporation”, dated January 25, 2008, fixing
the designations, voting powers, preferences and relative, participating and
other special rights, and qualifications, limitations and restrictions thereof
of the shares of the Preferred Stock as a new series of the Depositor’s
preferred stock.


 


“Certificate of Trust” has the meaning specified in the
recitals hereof, as amended from time to time.


 


5

















 


“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” has the meaning specified in the Underwriting
Agreement.


 


“Collateral Account” has the meaning specified in the
Collateral Agreement.


 


“Collateral Agent” means U.S. Bank National Association, as
Collateral Agent under the Collateral Agreement until a successor Collateral
Agent shall have been appointed and qualified pursuant to the applicable
provisions of the Collateral Agreement, and thereafter “Collateral Agent” shall
mean the Person who is then the Collateral Agent thereunder.


 


“Collateral Agreement” means the Collateral Agreement, dated
as of the date hereof, among the Depositor, the Collateral Agent, the Custodial
Agent, the Securities Intermediary, the Issuer Trust (acting through the
Property Trustee) and the Securities Registrar for the APEX, as amended from
time to time.


 


“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 B.


 


“Common Security” means an undivided common beneficial
interest in 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.


 


“Contingent Disposition Election” has the meaning specified
in Section 5.14(a)(ii).


 


“Contingent Exchange Election” has the meaning specified in Section 5.14(a)(i).


 


“Contract Payments” has the meaning specified in the Stock
Purchase Contract Agreement.


 


“Corporate Trust Office” means (i) when used with
respect to the Property Trustee, the Corporate Trust Office of the Property
Trustee located at U.S. Bank National Association, 100 Wall Street, Suite 1600,
New York, New York 10005, (ii) when used with respect to the Junior
Subordinated Debentures Trustee, the Global Trust Services Office of the Junior
Subordinated Debentures Trustee located at U.S. Bank National Association, 100
Wall Street, Suite 1600, New York, New York 10005, and (iii) when
used with respect to the 


 


6

















 


Securities
Registrar, U.S. Bank National Association, 100 Wall Street, Suite 1600,
New York, New York 10005.


 


“Corresponding Assets” means, with respect to each
$1,000 Liquidation Amount of Trust Securities:


 


(a)  in the case of Normal
APEX and Common Securities:


 


(i)  from
the Time of Delivery to but not including the Remarketing Settlement Date for a
Successful Remarketing, $1,000 principal amount of Pledged Junior Subordinated
Debentures and a 1/100th interest in a Stock Purchase Contract;


 


(ii) 
from and including the Remarketing Settlement Date for a Successful Remarketing
to but not including the Stock Purchase Date, the U.S. Treasury securities
purchased with the net proceeds of each $1,000 principal amount of Pledged
Junior Subordinated Debentures sold in such Successful Remarketing on such
Remarketing Settlement Date and a 1/100th interest in a Stock Purchase
Contract;


 


(iii) 
from and including the Stock Purchase Date and thereafter for so long as Normal
APEX are outstanding, 1/100th of a share of Preferred Stock and an amount of
Additional Subordinated Debentures initially equal to 1/100th of the amount of deferred and
unpaid Contract Payments, if any, on a Stock Purchase Contract as of the Stock
Purchase Date; and


 


(iv) 
from and including the Stock Purchase Date if there shall have been a Failed
Remarketing, an amount of Additional Subordinated Debentures equal to the
accrued and unpaid interest on $1,000 principal amount of Pledged Junior
Subordinated Debentures as of the Stock Purchase Date;


 


(b)  in the case of
Stripped APEX:


 


(i)  from
the date of issuance for each Stripped APEX to but not including the Stock
Purchase Date, $1,000 principal amount of Pledged Treasury Securities and
a 1/100  th
interest in a Stock Purchase Contract; and


 


(ii) 
from and including the Stock Purchase Date and thereafter for so long as
Stripped APEX are outstanding, 1/100th of a share of Preferred Stock,
subject to Section 4.8, and an amount of Additional Subordinated
Debentures initially equal to 1/100  th
of the amount of deferred and unpaid Contract Payments, if any, on a Stock
Purchase Contract as of the Stock Purchase Date; and


 


(c)  in the case of
Capital APEX:


 


(i)  from
the date of issuance for each Capital APEX, $1,000 principal amount of Junior
Subordinated Debentures, subject to Section 5.14; and


 


7

















 


(ii) 
from and including the Stock Purchase Date if there shall have been a Failed
Remarketing, an amount of Additional Subordinated Debentures initially equal to
the accrued and unpaid interest on $1,000 principal amount of Pledged Junior
Subordinated Debentures as of the Stock Purchase Date.


 


“Custodial Agent” means U.S. Bank National Association, as
Custodial Agent under the Collateral Agreement until a successor Custodial
Agent shall have become such pursuant to the applicable provisions of the
Collateral Agreement, and thereafter “Custodial Agent” shall mean the Person
who is then the Custodial Agent thereunder.


 


“Custody Account” has the meaning specified in the Collateral
Agreement.


 


“Deferred Contract Payment Amount” means, at any time for
each $100,000 stated amount of Stock Purchase Contracts, the amount of the
Contract Payments accrued on such stated amount that has been deferred and not
paid by reason of the Depositor’s exercise of its right to defer payment of
Contract Payments pursuant to Section 2.7 of the Stock Purchase Contract
Agreement, together with interest accrued on such amount in accordance with the
terms of the Stock Purchase Contract Agreement, including after the Stock
Purchase Date any Additional Subordinated Debentures issued in respect thereof.


 


“Deferred Junior Subordinated Debentures Interest Amount” means, at any time for each $1,000
principal amount of Junior Subordinated Debentures, the amount of interest
accrued on such principal amount that has been deferred and not paid by reason
of the Depositor’s exercise of its right to defer payment of interest pursuant
to Section 3.11 of the Original Indenture or Section 3.5 of the
Indenture Supplement, together with interest accrued on such amount in
accordance with the terms of the Indenture, including after the Stock Purchase
Date following a Failed Remarketing any Additional Subordinated Debentures
issued in respect thereof.


 


“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 5.15.


 


“Delaware Statutory Trust Act” means Chapter 38 of Title 12
of the Delaware Code, 12 Del. C. § 3801, et  seq., as it
may be amended from time to time.


 


“Delaware Trustee” means the Person identified as the “Delaware
Trustee” in the preamble to this Trust Agreement, solely in its capacity as
Delaware Trustee of the Trust 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.


 


“Depositor Order” means the written order signed in the name
of the Company by the Chairman of the Board of Directors, the Vice Chairman of
the Board of Directors, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee.


 


8

















 


“Direct Action” has the meaning specified in Section 5.16(c) and
Section 5.16(d).


 


“Distribution Date” means an Additional Distribution Date, a
Capital APEX Distribution Date or a Regular Distribution Date.


 


“Distribution Period”
means:


 


(i)  with
respect to Normal APEX, Stripped APEX and Common Securities, each period of
time beginning on a Regular Distribution Date (or the date of original issuance
in the case of the Distribution Period ending in September 2008) and
continuing to but not including the next succeeding Regular Distribution Date
for such Series; and


 


(iii) 
with respect to Capital APEX, each period of time beginning on a Capital APEX
Distribution Date (or the date of the original issuance of the APEX in the case
of the Distribution Period ending in September 2008) and continuing to but
not including the next succeeding Capital APEX Distribution Date.


 


“Distributions” means amounts payable in respect of the Trust
Securities as provided in Section 4.1.


 


“Dividend Payment Date” has the meaning specified in the
Certificate of Designation.


 


“DTC” means The Depository Trust Company.


 


“Early Settlement Event” has the meaning specified in the
Indenture Supplement.


 


“Early Termination 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
Junior Subordinated Debentures Event of Default; or


 


(b)  the occurrence of a Preferred
Stock Default; or


 


(c)  default by the
Property Trustee in the payment of any Distribution when such payment becomes
due and payable, and continuation of such default for a period of 30 days;
or


 


(d)  default by the
Property Trustee in the payment of any Redemption Price of any Trust Security
when it becomes due and payable; or


 


(e)  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 


 


9

















 


clause (c) or
(d) 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 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


 


(f)  the occurrence of a
Bankruptcy Event with respect to the Property Trustee and the failure by the
Depositor to appoint a successor Property Trustee within 60 days thereof.


 


“Excess Proceeds Distribution”
means the Distribution that each Holder of Stripped APEX shall receive on each
Additional Distribution Date on a pro
rata basis from the Issuer Trust of the amount by which the proceeds of
the Qualifying Treasury Securities pledged by the Issuer Trust in respect of
Stock Purchase Contracts maturing at least one Business Day prior to such date
exceed the amount required to purchase replacement Qualifying Treasury
Securities.


 


“Exchange” has the meaning specified in Section 5.13(a).


 


“Exchange Act” means the Securities Exchange Act of 1934, and
any successor statute thereto, in each case as amended from time to time.


 


“Exchange Period” means the Collateral Agent’s and the
Securities Registrar’s normal business hours on any Business Day other than (i) from
and including the 1st through the 15th day of any day in
March, June, September or December and (ii) the period from 3:00 P.M.,
New York City time, on the second Business Day before the first day of any
Remarketing Period to but not including the Business Day after the last day of
that Remarketing Period.


 


“Failed Remarketing” has the meaning specified in the
Indenture Supplement.


 


“Federal Reserve Board” 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 bodies performing such
duties at such time, or the Federal Reserve Bank of Boston, or any successor
Federal reserve bank having primary jurisdiction over the Depositor.


 


“Final Remarketing” has the meaning specified in the
Indenture Supplement.


 


“Guarantee Agreement” means the Guarantee Agreement executed
and delivered by the Depositor and U.S. Bank National Association, as guarantee
trustee, contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the holders of the Capital Securities, as amended
from time to time.


 


“Indemnified Person” has the meaning specified in Section 8.6(c).


 


“Indenture” means the Original Indenture and the Indenture
Supplement, taken together.


 


10

















 


“Indenture Supplement” means the Third Supplemental Indenture
to the Original Indenture, dated as of January 25, 2008, among the
Depositor, U.S. Bank National Association as trustee, as amended or
supplemented from time to time.


 


“Investment Company Event” has the meaning specified in the
Indenture Supplement.


 


“Issuer Trust” means the Delaware statutory trust known as “State
Street Capital Trust III”, which was created under the Delaware Statutory 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.


 


“Junior Subordinated Debentures Event of Default” means any “Event
of Default” specified in Section 5.1 of the Original Indenture, as
supplemented by the Indenture Supplement.


 


“Junior Subordinated Debentures Redemption Date” means, with
respect to any Junior Subordinated Debentures to be redeemed under the
Indenture, the date fixed for redemption of such Junior Subordinated Debentures
under the Indenture.


 


“Junior Subordinated Debentures Redemption Price” means, with
respect to any Junior Subordinated Debentures to be redeemed under the
Indenture, the Redemption Price for such redemption and related Junior
Subordinated Debentures Redemption Date determined in accordance with the
Indenture.


 


“Junior Subordinated Debentures Trustee” means U.S. Bank
National Association, solely in its capacity as trustee pursuant to the
Indenture Supplement and not in its individual capacity, or its successor in
interest in such capacity, or any successor trustee appointed as provided in
the Indenture.


 


“Junior Subordinated Debentures” means the $500,100,000
initial aggregate principal amount of the Depositor’s Remarketable 6.001%
Junior Subordinated Debentures due 2042 issued pursuant to the Indenture.


 


“Lien” means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.


 


“Like Amount” means:


 


(a)  with respect to a
distribution of Junior Subordinated Debentures to Holders of Normal APEX,
Capital APEX or Common Securities in connection with a dissolution or
liquidation of the Issuer Trust or a redemption in kind of Capital APEX
pursuant to Section 4.2(d), Junior Subordinated Debentures having a
principal amount equal to the Liquidation Amount of the Trust Securities of the
Holder to whom such Junior Subordinated Debentures are distributed;  provided,  however, that if the Company
elects 


 


11

















 


pursuant to Section 4.2(d) of
the Indenture Supplement to remarket the Junior Subordinated Debentures in the
form of New Capital Securities, “Like Amount” means New Capital Securities
having a liquidation amount equal to the Liquidation Amount of the Trust
Securities of the Holder to whom such New Capital Securities are distributed;


 


(b)  with respect to a
distribution of Pledged Treasury Securities to Holders of Stripped APEX in
connection with a dissolution or liquidation of the Issuer Trust or termination
of the Stock Purchase Contracts, Pledged Treasury Securities having a principal
amount equal to the Liquidation Amount of the Stripped APEX to whom such
Pledged Treasury Securities are distributed;


 


(c)  with respect to a distribution
of Preferred Stock or fractional interests in Preferred Stock to Holders of
Trust Securities in connection with a dissolution or liquidation of the Trust,
Preferred Stock or a fractional interest in a share of Preferred Stock (which
may be effected by the Issuer Trust through the creation of depositary shares)
having a liquidation preference equal to the Liquidation Amount of the Trust
Securities of the Holder to whom such shares of Preferred Stock or a fractional
interest in a share of Preferred Stock (including through a depositary share)
are distributed;


 


(d)  with respect to any
distribution of Additional Amounts to Holders of Normal APEX, Capital APEX or
Common Securities, Junior Subordinated Debentures having a principal amount
equal to the Liquidation Amount of the Normal APEX, Capital APEX or Common
Securities in respect of which such distribution is made;


 


(e)  with respect to a
redemption of Preferred Stock, 1/100th of a share of Preferred Stock for each
Normal APEX or Common Security;


 


(f)  with respect to an
Exchange of Normal APEX and Qualifying Treasury Securities for Stripped APEX
and Capital APEX pursuant to Section 5.13(b), a number of Stripped APEX
and a number of Capital APEX in each case equal to the number of Normal APEX
included in such Exchange (e.g., if 1,000 Normal APEX are being Exchanged, the
Holder will receive 1,000 Stripped APEX and 1,000 Capital APEX in accordance
with and subject to Section 5.13);


 


(g)  with respect to an
Exchange of Stripped APEX and Capital APEX for Normal APEX and Qualifying
Treasury Securities, a number of Normal APEX equal to the number of Stripped
APEX and the number of Capital APEX being Exchanged (e.g., if 1,000 Stripped APEX and 1,000 Capital APEX are
being Exchanged, the Holder will receive upon the Exchange 1,000 Normal APEX
together with $1,000,000 principal amount of Qualifying Treasury Securities
released from the Pledge, in accordance with and subject to Section 5.13(e));


 


(h)  with respect to
Junior Subordinated Debentures (including Pledged Junior Subordinated
Debentures as applicable) being deposited or delivered in connection with an
Exchange, Junior Subordinated Debentures having a principal amount equal to
$1,000 for each Normal APEX involved in the Exchange;


 


12

















 


(i)  with respect to Section 5.13(c),
$1,000 principal amount of Junior Subordinated Debentures for each $1,000
Liquidation Amount of Capital Securities of each Affected Series; and


 


(j)  with respect to Section 5.13(d),
1/100th of a Stock Purchase Contract with a stated amount of $100,000 for each
$1,000 Liquidation Amount of Capital Securities of the Affected Series.


 


“Liquidation Amount” means the stated amount of $1,000 per
Trust Security.


 


“Liquidation Date” means the date on which the assets of the
Issuer Trust are distributed to Holders pursuant to Section 9.4.


 


“Liquidation Distribution” has the meaning specified in Section 9.4(d).


 


“Majority in Liquidation Amount” means as to one or more Series of
Trust Securities, except as provided by the Trust Indenture Act, Trust
Securities of one or more Series representing more than 50% of the
aggregate Liquidation Amount of all Outstanding Trust Securities of one or more
Series.


 


“Make-Whole Amount” has the meaning specified in the Indenture
Supplement.


 


“1940 Act” means the Investment Company Act of 1940, as
amended.


 


“New Capital Securities” means, in the event the Depositor
elects to remarket the Junior Subordinated Debentures in the form of Capital
Securities pursuant to Section 4.2(d) of the Indenture Supplement,
capital securities issued by a Delaware statutory trust, all of the common
securities of which are directly or indirectly owned by the Depositor.


 


“Normal APEX” means an undivided preferred beneficial
interest in the Issuer Trust, having a Liquidation Amount of $1,000 and having
the rights provided for Normal APEX in this Trust Agreement, including the
right to receive Distributions and a Liquidation Distribution as provided
herein.


 


“Normal APEX Certificate” means a certificate evidencing
ownership of Normal APEX, substantially in the form attached as Exhibit C.


 


“Normal APEX Distribution Rate” means (i) from the
Closing Date to but not including the later of the Regular Distribution Date of
March 15, 2011 and the Stock Purchase Date (and for each related
Distribution Period), 8.250% per annum
(calculated on a 30/360 Basis) and (ii) thereafter, for each Distribution
Period and related Regular Distribution Date, Three-Month LIBOR for such
Distribution Period plus 4.990% (calculated on an Actual/360 Basis).


 


“Normal APEX Redemption Date” means, with respect to any
Normal APEX to be redeemed, the date fixed for such redemption by or pursuant
to this Trust Agreement;  provided,  however, that each Preferred
Stock Redemption Date shall be a Redemption Date for a like amount of Normal
APEX.


 


13

















 


“Normal APEX Redemption Price” means, with respect to any
Normal APEX and Common Securities and the related Normal APEX Redemption Date,
the redemption price for a Like Amount of Preferred Stock redeemed in
accordance with the Certificate of Designation.


 


“Notice of Contingent Disposition Election” has the meaning
specified in Section 5.14(f).


 


“Notice of Contingent Exchange Election” has the meaning
specified in Section 5.14(d)(i).


 


“Officers’ Certificate” means a certificate signed by the
Chairman and Chief Executive Officer, President and Vice President, and by the
Treasurer, an Associate Treasurer, an Assistant Treasurer, the Controller, Secretary
or an Assistant Secretary of the Depositor, and delivered to the appropriate
Trustee.  One of the officers signing an
Officer’s Certificate given pursuant to Section 8.16 shall be the
principal executive, financial or accounting officer of the Depositor.  Any Officers’ Certificate delivered with
respect to compliance with a condition or covenant provided for in this Trust
Agreement shall include:


 


(a)  a statement that each
officer signing the Officers’ Certificate 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 each
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.


 


“Opinion of Counsel” means a written opinion of counsel, who
may be counsel for the Issuer Trust, the Property Trustee or the Depositor, but
not an employee of the Trust or the Property Trustee, and who shall be
reasonably acceptable to the Property Trustee.


 


“Original Indenture” means the Junior Subordinated Indenture,
dated as of December 15, 1996, between the Depositor and The Bank of New
York (as successor in interest to J.P. Morgan Chase & Co. (as
successor in interest to Bank One Trust Company, N.A. (as successor in interest
to The First National Bank of Chicago))).


 


“Original Trust Agreement” has the meaning specified in the
recitals hereto.


 


“Outstanding,” when used with respect to Trust Securities of
a Series, means, as of the date of determination, all Trust Securities of such Series theretofore
executed and delivered under this Trust Agreement, except:


 


(a)           Trust Securities of such Series theretofore canceled
by the Securities Registrar or delivered to the Securities Registrar for
cancellation;


 


14

















 


(b)           Trust Securities of such Series for whose payment or
redemption money in the necessary amount has been theretofore deposited with
the Property Trustee or any Paying Agent; provided, however, 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 of such Series 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, 5.11 and 5.13;


 


provided,  however, that in determining whether the Holders of the
requisite Liquidation Amount of the Outstanding Capital Securities of a Series have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, Capital Securities of such Series owned by the Depositor, any
Trustee, or any Affiliate of the Depositor or any Trustee shall be disregarded
and deemed not to be Outstanding, except that (a) in determining whether
any Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Capital Securities of
such Series that a Responsible Officer of such Trustee actually 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 of such Series are
owned by the Depositor, one or more of the Issuer Trustees, and/or any such
Affiliate.  Capital Securities of a Series so
owned which 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 U.S. Bank
National Association.


 


“Payment Account” means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee initially with U.S.
Bank National Association (in its corporate capacity and not as Paying Agent),
in its trust department for the benefit of the Securityholders in which all
amounts paid in respect of the Trust Property will be held and from which the
Property Trustee, through the Paying Agent, shall make distributions in
accordance with the terms of this Trust Agreement, including payments to the
Securityholders in accordance with Sections 4.1 and 4.2.  After the Stock Purchase Date, the Payment
Account may at any time be established with any commercial bank by the Property
Trustee.


 


“Person” means any individual, corporation, estate,
partnership, association, joint venture, trust, limited liability company,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity of a similar nature.


 


“Pledge” means the pledge under the Collateral Agreement of
Junior Subordinated Debentures or Qualifying Treasury Securities, as the case
may be.


 


15

















 


“Pledged Junior Subordinated Debentures” has the meaning
specified in the Collateral Agreement.


 


“Pledged Treasury Securities” has the meaning specified in
the Collateral Agreement.


 


“Predecessor Capital APEX Certificate” of any particular
Capital APEX Certificate means every previous Capital APEX Certificate
evidencing all or a portion of the rights and obligations of the Issuer Trust
and the Holder under the Capital APEX evidenced thereby; and, for the purposes
of this definition, any Capital APEX Certificate delivered under Section 5.5
in exchange for or in lieu of a mutilated, destroyed, lost or stolen Capital
APEX Certificate shall be deemed to evidence the same rights and obligations of
the Depositor and the Holder as the mutilated, destroyed, lost or stolen
Capital APEX Certificate.


 


“Predecessor Certificate” means a Predecessor Normal APEX
Certificate, a Predecessor Stripped APEX Certificate or a Predecessor Capital
APEX Certificate, as applicable.


 


“Predecessor Normal APEX Certificate” of any particular
Normal APEX Certificate means every previous Normal APEX Certificate evidencing
all or a portion of the rights and obligations of the Issuer Trust and the
Holder under the Normal APEX evidenced thereby; and, for the purposes of this
definition, any Normal APEX Certificate delivered under Section 5.5 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Normal APEX
Certificate shall be deemed to evidence the same rights and obligations of the
Depositor and the Holder as the mutilated, destroyed, lost or stolen Normal
APEX Certificate.


 


“Predecessor Stripped APEX Certificate” of any particular
Stripped APEX Certificate means every previous Stripped APEX Certificate
evidencing all or a portion of the rights and obligations of the Depositor and
the Holder under the Stripped APEX evidenced thereby; and, for the purposes of
this definition, any Stripped APEX Certificate delivered under Section 5.5
in exchange for or in lieu of a mutilated, destroyed, lost or stolen Stripped
APEX Certificate shall be deemed to evidence the same rights and obligations of
the Depositor and the Holder as the mutilated, destroyed, lost or stolen
Stripped APEX Certificate.


 


“Preferred Stock” means the Non-Cumulative Perpetual
Preferred Stock, Series A, $100,000 liquidation preference per share, of
the Depositor.


 


“Preferred Stock Default” means the failure of the Depositor
to comply in any material respect with any of its obligations (i) under
the Stock Purchase Contract Agreement or (ii) as issuer of the Preferred
Stock, including in the Certificate of Designation, the Depositor’s articles of
organization, or arising under applicable law.


 


“Preferred Stock Redemption Date” means, with respect to any
shares of Preferred Stock to be redeemed under the Certificate of Designation,
the date fixed for redemption of such shares under the Certificate of
Designation.


 


“Proceeds” has the meaning specified in the Collateral
Agreement.


 


16

















 


“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 Issuer 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.


 


“Prospectus” means the prospectus, dated March 21, 2006,
of the Depositor relating to the offering of the Normal APEX, as supplemented
by the prospectus supplement, dated January 17, 2008.


 


“Qualifying Treasury Securities” has the meaning specified in
Section 10.1.


 


“Rating Agency Event” has the meaning specified in the
Indenture Supplement.


 


“Recombination Notice and Request” has the meaning specified
in Section 5.13(d)(ii).


 


“Redemption Date” means a Normal APEX Redemption Date or a
Capital APEX Redemption Date, as applicable.


 


“Redemption Price” means, (i) with respect to a
redemption of Normal APEX, the Normal APEX Redemption Price, and (ii) with
respect to a redemption of Capital APEX, the Capital APEX Redemption Price.


 


“Reference Date” has the meaning specified in Section 10.1.


 


“Regular Distribution Date”
means:


 


(a)  each March 15
and September 15 occurring prior to and including the later of March 15,
2011 and the Stock Purchase Date, commencing September 15, 2008 (or, in
the case of Stripped APEX, the first such date on which Stripped APEX are
outstanding);


 


(b)  after the later of March 15,
2011 and the Stock Purchase Date, each March 15, June 15, September 15
and December 15; and


 


(c)  the Stock Purchase
Date if not otherwise a Regular Distribution Date;


 


provided,  however, that the last Regular Distribution Date for the
Stripped APEX shall be the Stock Purchase Date or, if later, the date on which
no Additional Subordinated Debentures issued in respect of any Deferred
Contract Payment Amount or Deferred Junior Subordinated Debentures Interest
Amounts are outstanding.


 


“Relevant Trustee” shall have the meaning specified in Section 8.10.


 


“Remarketing” has the meaning specified in the Indenture
Supplement.


 


“Remarketing Agent” means, as to a Remarketing and
Remarketing Agreement, the remarketing agent and any successor or replacement
remarketing agent appointed by the Depositor.


 


17
















 


“Remarketing Agent’s Fee” means,
as to the Remarketing Agent and a Remarketing, the fee provided for in the
Remarketing Agreement.


 


“Remarketing Agreement” means the Remarketing Agreement to be
entered into prior to the first Remarketing among the Depositor, the Issuer
Trust (acting through the Property Trustee) and the Remarketing Agent, as
amended or supplemented from time to time.


 


“Remarketing Period” has the meaning specified in the
Indenture Supplement.


 


“Remarketing Settlement Date” has the meaning specified in
the Indenture Supplement.


 


“Remarketing Treasury
Securities” has the meaning specified in the Collateral Agreement.


 


“Reset Rate” has the meaning specified in the Indenture
Supplement (and is the interest rate applicable to the Junior Subordinated
Debentures and the Capital APEX Distribution Rate commencing on the Remarketing
Settlement Date).


 


“Responsible Officer” means, with respect to any Issuer
Trustee other than an Administrative Trustee, any officer within the corporate
trust department of the Issuer Trustee, including any vice president, assistant
vice president, assistant treasurer, trust officer or any other officer of the
Issuer Trustee who customarily performs functions similar to those performed by
the Persons who at the time shall be such officers, respectively, or to whom
any corporate trust matter is referred because of such person’s knowledge of
and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Trust Agreement.


 


“Securities Act” means the Securities Act of 1933, and any
successor statute thereto, in each case as amended from time to time.


 


“Securities Intermediary” means U.S. Bank National
Association, as Securities Intermediary under the Collateral Agreement until a
successor Securities Intermediary shall have become such pursuant to the
applicable provisions of the Collateral Agreement, and thereafter 


 


“Securities
Intermediary” shall mean such successor or any
subsequent successor who is appointed pursuant to the Collateral Agreement.


 


“Securities Register” and “Securities Registrar” have the meanings specified in Section 5.4.


 


“Securityholder” or “Holder” means the Person in whose name the Trust Security or
Trust Securities are registered in the Security Register; and any such Person
shall be deemed to be a beneficial owner within the meaning of the Delaware
Statutory Trust Act;  provided,  however, that solely for the
purpose of determining whether the Holders of the requisite number of APEX have
voted on any matter provided for in this Trust Agreement, then for the purpose
of any such determination, so long as Definitive Capital Securities have not
been issued, the term Securityholders or Holders as used herein shall refer to
the Owner.


 


18

















 


“Series” means each of the Normal APEX, the Stripped APEX,
the Capital APEX and the Common Securities, each as a series of beneficial
interests in the Issuer Trust.


 


“Special Event” means any of a Capital Treatment Event, an
Investment Company Event, a Rating Agency Event or a Tax Event.


 


“Stock Purchase Contract” has the meaning specified in the
Stock Purchase Contract Agreement.


 


“Stock Purchase Contract Agreement” means the Stock Purchase
Contract Agreement, dated as of the date hereof, between the Depositor and the
Property Trustee (acting on behalf of the Issuer Trust).


 


“Stock Purchase Date” has the meaning specified in the Stock
Purchase Contract Agreement.


 


“Stripped APEX” means an undivided preferred beneficial
interest in the Issuer Trust, having a Liquidation Amount of $1,000 and having
the rights provided for Stripped APEX in this Trust Agreement, including the
right to receive Distributions and a Liquidation Distribution as provided
herein.


 


“Stripped APEX Certificate” means a certificate evidencing
ownership of Stripped APEX, substantially in the form attached as Exhibit D.


 


“Stripped APEX Distribution Rate” means 2.249% per annum, calculated on a 30/360
Basis.


 


“Stripping Notice and Request” has the meaning specified in Section 5.13(b)(iii).


 


“Successful” has the meaning specified in the Indenture
Supplement.


 


“Successor Securities” has the meaning specified in Section 9.5.


 


“Tax Event” has the meaning specified in the Indenture
Supplement.


 


“30/360 Basis” means, for purposes of calculating a rate for
Distributions, such rate calculated on the basis of a 360-day year consisting
of twelve 30-day months.


 


“Three-Month LIBOR” means, for any Distribution Period
commencing on or after the Stock Purchase Date, “Three-Month LIBOR” for the
corresponding Dividend Period as defined in and determined pursuant to the
Certificate of Designation.


 


“Time of Delivery” means January 25, 2008.


 


“Transaction Agreements” means each of the Stock Purchase
Contract Agreement, the Collateral Agreement, the Underwriting Agreement, the
Junior Subordinated Debentures, the Certificate Depositary Agreement, the
Remarketing Agreement, the Guarantee Agreement, the Indenture, the Agent
Agreement and any other agreement determined by any


 


19

















 


Issuer Trustee
to be appropriate in exercising the authority, express or implied, otherwise
granted to the Issuer Trustees under this Trust Agreement.


 


“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 hereto,
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 Junior Subordinated
Debentures for so long as they are owned by the Issuer Trust in accordance with
this Trust Agreement, (b) the Stock Purchase Contracts, (c) the
Preferred Stock once acquired by the Issuer Trust pursuant to the Stock
Purchase Contracts, (d) U.S. Treasury securities (that are required to be
Qualifying Treasury Securities when delivered) delivered to the Property
Trustee (or the Collateral Agent) pursuant to Section 5.13 or Section 5.14,
(e) Remarketing Treasury Securities, (f) Additional Subordinated
Debentures, if any, issued on the Stock Purchase Date in respect of Deferred
Contract Payment Amounts or Deferred Junior Subordinated Debentures Interest
Amounts, (g) the rights of the Issuer Trust under the Transaction
Agreements, and (h) 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 Issuer Trust or the Property Trustee on behalf of the Issuer Trust
pursuant to the Trust Agreement.


 


“Trust Security” means any one of the Common Securities or
the Capital Securities.


 


“Trust Securities Certificate” means any one of the Common
Securities Certificates or the Capital Securities Certificates.


 


“Underwriting Agreement” means the Underwriting Agreement,
dated January 17, 2008, among the Issuer Trust, the Depositor, and the
underwriters named therein.


 


“United States Person” means, for U.S. federal income tax
purposes, a citizen or resident of the United States, a domestic partnership, a
domestic corporation, an estate the income of which is subject to U.S. federal
income taxation regardless of its source, and a trust if (i) a court
within the United States is able to exercise primary supervision over the
administration of the trust, and (ii) one or more United States persons
have the authority to control all substantial decisions of the trust.


 


20

















 


ARTICLE II


 


Continuation of the Issuer Trust; Issuance of Capital Securities; And Related Matters


 


SECTION 2.1.  Name.  The trust continued hereby shall be known as “State
Street Capital Trust III,” as such name may be modified from time to time by
the Administrative Trustees following written notice to the Holders and the
other Issuer Trustees, in which name the 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 U.S. Bank Trust National Association, 300 Delaware Avenue,
9th floor, Wilmington, Delaware, 19801, Attention: Earl W. Dennison, 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 Two World Financial Center, 225 Liberty Street, New York,
New York, 10281, Attention:  Administrative
Trustees of State Street Capital Trust III or such other office that the
Administrative Trustees shall occupy from time to time.


 


SECTION 2.3.  Initial
Contribution of Trust Property; Organizational Expenses.  The Property Trustee acknowledges 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
not make any claim upon the Trust Property for the payment of such expenses.


 


SECTION 2.4.  Issuance of
the Capital Securities.  (a)  On
January 17, 2008, the Depositor, on behalf of the Issuer Trust and
pursuant to the Original Trust Agreement, executed and delivered the
Underwriting Agreement.  On the Closing
Date, an Administrative Trustee, on behalf of the Issuer Trust, in connection with
the delivery on such date of 500,000 Normal APEX to the underwriters named in
the Underwriting Agreement, shall execute in accordance with Section 5.3
and deliver to the Clearing Agency a Normal APEX Certificate or Certificates
that are Book-Entry Capital Securities Certificates, registered in the name of
the Clearing Agency (or its nominee) representing 500,000 Normal APEX, against
payment of $1,000 per Normal APEX or $500,000,000 in the aggregate, net of the
applicable underwriting discount determined in accordance with the Underwriting
Agreement, as the purchase price therefor in immediately available funds, which
amount the Administrative Trustee shall promptly deliver to the Property
Trustee or its designee.


 


21





















 


(b)  On the date on which
an Administrative Trustee, on behalf of the Issuer Trust, executes and delivers
a Normal APEX Certificate pursuant to Section 2.4(a), such Administrative
Trustee shall also execute in accordance with Section 5.3 and deliver to
the Clearing Agency or the Certificate Custodian two additional Book-Entry
Capital Securities Certificates, one of which shall be a Capital APEX
Certificate and the other of which shall be a Stripped APEX Certificate, each
representing up to a maximum number of Capital APEX or Stripped APEX, as
applicable, that is the same as the number of Normal APEX evidenced by the
Certificate contemporaneously issued as a Book-Entry Capital Securities
Certificate pursuant to Section 2.4(a).


 


(c)  In order to give
effect to Exchanges, the Securities Registrar may, as provided in Section 5.11,
endorse Book-Entry Capital Securities Certificates to reduce or increase the
number of Normal APEX, Stripped APEX or Capital APEX evidenced by each such
Book-Entry Capital Securities Certificate,  provided,  however,
that no such endorsement shall result in a Book-Entry Capital Securities
Certificate evidencing a number of Normal APEX, Stripped APEX or Capital APEX
exceeding the maximum number set forth on the face of such Certificate.


 


SECTION 2.5.  Issuance of
the Common Securities; Subscription and Purchase of Junior Subordinated
Debentures.  On the Closing Date, an
Administrative Trustee, on behalf of the Issuer Trust, shall execute in
accordance with Section 5.3 and deliver to the Depositor a Common
Securities Certificate, registered in the name of the Depositor, evidencing
100 Common Securities, each having a Liquidation Amount of $1,000 and
having an aggregate Liquidation Amount of $100,000, against payment by the Depositor
of such amount, which amount such Administrative Trustee shall promptly deliver
to the Property Trustee or its designee. 
Contemporaneously therewith, an Administrative Trustee, on behalf of the
Issuer Trust, shall (x) subscribe to and purchase from the Depositor the
Junior Subordinated Debentures registered in the name of the Issuer Trust or,
upon order of an Administrative Trustee, in the name of the Collateral Agent,
and having an aggregate initial principal amount equal to $500,100,000, (y) shall
deliver to the Depositor the purchase price therefor (being the sum of the
amounts delivered to the Property Trustee or its designee pursuant to (i) the
second sentence of Section 2.4(a) and (ii) the first sentence of
this Section 2.5), and (z) shall instruct the Depositor to deliver
the Junior Subordinated Debentures to the Collateral Agent for deposit in the
Collateral Account.


 


SECTION 2.6.  Declaration of Trust.  The exclusive purposes and functions of the
Issuer Trust are (a) to issue and sell Trust Securities and use the
proceeds from such sale to acquire the Junior Subordinated Debentures, (b) to
enter into and perform its obligations under the Transaction Agreements
(including, on the Stock Purchase Date, to acquire Preferred Stock pursuant to
the Stock Purchase Contracts), (c) to hold the Junior Subordinated
Debentures and certain U.S. Treasury securities and pledge them to secure the
Issuer Trust’s obligations under the Stock Purchase Contracts, and (d) to engage in those activities
necessary or incidental thereto.  The
Issuer Trust shall not acquire any


 


22





















 


investments,
sell or assign Trust Property, borrow money, issue debt or reinvest proceeds
derived from investments, mortgage or pledge any of its assets, take or consent
to any action that would result in the placement of a lien on any of the Trust
Property, issue any securities other than the Trust Securities, in each case
except as expressly provided herein, or otherwise take (or permit to be taken)
any action or activity that would cause the Issuer Trust to be classified for
United States federal income tax purposes as an association or publicly traded
partnership taxable as a corporation or as other than one or more grantor
trusts or agency arrangements.  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
Securityholders.  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 Delaware Statutory 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 Section 2.7(b) and Article VIII
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)  causing the Issuer Trust to enter into, execute, deliver and
perform on behalf of the Issuer Trust, the Certificate Depositary Agreement,
the Agent 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;


 


23





















 


(D)  assisting in the listing of the Capital Securities upon such
securities exchange or exchanges or automated system or systems, if any, as
shall be determined by the Depositor, and the registration of the Capital
Securities under the Exchange Act, and the preparation and filing of all
periodic and other reports and other documents pursuant to the foregoing;


 


(E)  the sending of notices (other than notices of default) and
other information regarding the Trust Securities, the Junior Subordinated
Debentures and the Preferred Stock to the Securityholders in accordance with
this Trust Agreement;


 


(F)  the appointment of a Paying Agent, authenticating agent and a
Securities Registrar in accordance with this Trust Agreement, in addition to
U.S. Bank National Association as initial Paying Agent and Securities
Registrar;


 


(G)  registering transfer of the Trust Securities in accordance
with this Trust Agreement;


 


(H)  to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Issuer Trust and the preparation,
execution and filing of the certificate of cancellation with the Secretary of
State of the State of Delaware;


 


(I)  execution and delivery of closing certificates, if any,
pursuant to the Underwriting Agreement and any Remarketing 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 Statutory Trust Act, the Trust Indenture Act or other applicable law,
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;


 


(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 for the benefit of the
Securityholders (without consideration of the effect of any such action on any
particular Securityholders); and


 


(L)  the taking of any action required to be taken by the
Administrative Trustees under any of the Transaction Agreements.


 


(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;


 


24





















 


(B)  the execution and delivery on behalf of the Issuer Trust of
the Stock Purchase Contract Agreement, the Collateral Agreement, the
Remarketing Agreement, and any other Transaction Agreement other than the
Underwriting Agreement, the Agent Agreement and the Certificate Depositary
Agreement and the performance by the Issuer Trust of its obligations and the
exercise by the Issuer Trust of its rights thereunder;


 


(C)  the receipt of the Junior Subordinated Debentures and, in
connection with an Exchange, Notice of Contingent Exchange Election or
Remarketing, the receipt of Qualifying Treasury Securities;


 


(D)  the receipt of the Remarketing Treasury Securities from the
Remarketing Agent;


 


(E)  the pledge of Junior Subordinated Debentures, Remarketing
Treasury Securities and Qualifying Treasury Securities pursuant to the
Collateral Agreement;


 


(F)  the receipt of the Preferred Stock on the Stock Purchase
Date;


 


(G)  the collection of interest, principal and any other payments
or instruments (including due bills or promissory notes of the Depositor
issuable under or with respect to the Junior Subordinated Debentures) made in
respect of the Junior Subordinated Debentures in the Payment Account;


 


(H)  the collection of the Contract Payments and any other
payments or instruments (including due bills or promissory notes of the
Depositor issuable under the Stock Purchase Contract Agreement or with respect
to the Contract Payments) and the holding of such amounts in the Payment
Account;


 


(I)  the collection of payment of dividends, redemption price and
other payments made in respect of the Preferred Stock and the holding of such
amounts in the Payment Account;


 


(J)  the distribution through the Paying Agent of amounts or
property or instruments (including due bills or promissory notes of the
Depositor issuable under or with respect to the Junior Subordinated Debentures
or the Stock Purchase Contracts) owed to the Securityholders in respect of the
Trust Securities;


 


(K)  the exercise of all of the rights, powers and privileges of a
holder of the Junior Subordinated Debentures for so long as the Issuer Trust
holds Junior Subordinated Debentures, subject to Articles V and VI of this
Trust Agreement;


 


(L)  the exercise of all of the rights, powers and privileges of a
holder of Preferred Stock for so long as the Issuer Trust holds Preferred
Stock, subject to Articles V and VI of this Trust Agreement;


 


25





















 


(M)  the sending of notices of default and other information
regarding the Trust Securities, the Junior Subordinated Debentures, the
Preferred Stock and the Transaction Agreements to the Securityholders in
accordance with this Trust Agreement;


 


(N)  the distribution of the Trust Property in accordance with the
terms of this Trust Agreement;


 


(O)  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; and


 


(P)  after an Event of Default (other than under
paragraph (c), (d), (e) or (f) 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 to protect and conserve the Trust Property
for the benefit of the Securityholders (without consideration of the effect of
any such action on any particular Securityholder); and


 


(Q)  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 Securityholders,
except as expressly provided herein, (iii) take any action that could cause the Issuer Trust to become
classified as an association or publicly traded partnership taxable as a
corporation or as other than one or more grantor trusts or agency arrangements
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, except as expressly provided herein, (vi) acquire any assets
other than the Trust Property, (vii) invest any proceeds received by the
Issuer Trust from holding Trust Property except to the extent expressly
required pursuant to this agreement, (viii) possess any power or otherwise
act in such a way as to vary the terms of the Trust Securities (except to the
extent expressly authorized herein or by the terms of the Trust Securities), or
(ix) issue any securities or other evidences of beneficial ownership of,
or beneficial interest in, the Issuer Trust other than the Trust
Securities.  The Administrative Trustees
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 Securityholders in their capacity as Securityholders (other than the
Lien created by the Collateral Agreement, which is a permitted Lien).


 


26





















 


(c)  In connection with
the issuance and sale of the Capital Securities, the Depositor shall have the
right and responsibility to assist the Issuer Trust with respect to, or effect
on behalf of the Issuer Trust, the following (and any actions taken by the
Depositor in furtherance of the following prior to the date of this Trust
Agreement are hereby ratified and confirmed in all respects):


 


(i)  the preparation and filing by the Issuer Trust with the
Commission 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
Trustees 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)  following the Stock Purchase Date, 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 any 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)  following the Stock Purchase Date, the preparation for
filing by the Issuer Trust with the Commission and the execution on behalf of
the Issuer Trust of a registration statement on Form 8-A relating to the
registration of the Capital Securities under Section 12(b) or 12(g) of
the Exchange Act, including any amendments thereto;


 


(v)  the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for the sale of the Capital
Securities;


 


(vi)  the appointment of the Securities Registrar in accordance
with Section 5.4;


 


(vii)  the setting of any special record date in accordance with Section 4.1(g),
and


 


(viii)  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 1940 Act, or to be classified as an association or
publicly traded partnership taxable as a corporation or as other than one or more grantor trusts or agency
arrangements for United States Federal income tax purposes and so that the
Junior Subordinated 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,


 


27





















 


not inconsistent with applicable law, the Certificate of Trust or this
Trust Agreement, that each of the Depositor and any Administrative Trustee
determines in its 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.


 


SECTION 2.8.  Assets of
Issuer Trust.  The assets of the
Issuer Trust shall consist solely of the Trust Property.


 


SECTION 2.9.  Title to
Trust Property.  Subject to the terms
and provisions of the Collateral Agreement, legal title to all Trust Property
shall be vested at all times in the Property Trustee (in its capacity as such),
on behalf of the Issuer Trust, and shall be held and administered by the
Property Trustee for the benefit of the Issuer Trust and the Securityholders in
accordance with and as limited by 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 or cause to be
established the Payment Account.  The
Property Trustee and any agents of the Property Trustee 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 Securityholders and for distribution as herein
provided, including (and subject to) any priority of payments provided for
herein.


 


(b)  The Property Trustee
shall deposit or cause to be deposited in the Payment Account, promptly upon
receipt, (i) all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Junior Subordinated Debentures, (ii) all
Contract Payments, (iii) all Excess Proceeds Distributions, (iv) all
payments of dividends or the redemption price on, and other payments or
proceeds with respect to, the Preferred Stock or the Stock Purchase Contracts
and (v) all other cash amounts received as payments on or with respect to
the Trust Property.  Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.


 


ARTICLE IV


 


Distributions; Redemption, Etc.


 


SECTION 4.1.  Distributions.  (a)  The Trust Securities represent
undivided beneficial interests in the Issuer Trust, and Distributions will be
made on the Trust Securities of a Series on applicable Distribution Dates
in amounts that correspond to amounts of interest, dividends or Contract
Payments, as 


 


28





















 


applicable
(and (i) in the case of the Normal APEX, Capital APEX and Common
Securities, Additional Amounts and Deferred Junior Subordinated Debentures Interest Amounts, and (ii) in the case
of the Normal APEX, Stripped APEX and Common Securities, Deferred Contract
Payment Amounts) that are received by the Property Trustee or the Paying Agent
on or in connection with each applicable Distribution Date on the Trust
Property that is the Corresponding Assets for such Series, as provided in
Sections 4.1(b), (c) and (d).


 


(b)  In the case of the
Normal APEX and the Common Securities, subject to Section 4.1(e):


 


(i)  Distributions will be payable in cash on each Regular
Distribution Date;


 


(ii)  the Distributions payable on each Regular Distribution Date
for the related Distribution Period will be at a rate per annum applied to the Liquidation Amount per Normal APEX and
Common Security equal to the Normal APEX Distribution Rate for such
Distribution Period (with the consequence that the amount of the Distribution
for each $1,000 of Normal APEX or Common Securities payable on each Regular
Distribution Date being equal to (x) the sum of the amount of interest
payable on such Regular Distribution Date on a Like Amount of Junior
Subordinated Debentures (without giving effect to any change in the interest
rate on the Junior Subordinated Debentures in connection with a Remarketing)
plus 1/100th of the Contract Payment payable on a Stock Purchase Contract
having a stated amount of $100,000 for each Distribution Period ending on or
before the Stock Purchase Date and (y) the amount of dividends payable on
such Regular Distribution Date on a Like Amount of Preferred Stock for each
Distribution Period thereafter);


 


(iii)  Distributions shall be cumulative for each Regular
Distribution Date to and including the Stock Purchase Date and non-cumulative
thereafter; and


 


 


(iv)  the
amount of Distributions payable for any Distribution Period ending on or prior
to the Stock Purchase Date shall include the Additional Amounts received by the
Issuer Trust, if any.


 


(c)  In the case of
Capital APEX, subject to Section 4.1(e):


 


(i)  Distributions will be payable in cash on each Capital APEX
Distribution Date;


 


(ii)  the Distributions payable on each Capital APEX Distribution
Date for the related Distribution Period will be at a rate per annum applied to the Liquidation
Amount per Capital APEX equal to the Capital APEX Distribution Rate for such
Distribution Period, with the consequence that the amount of the Distribution
for each $1,000 of Capital APEX payable on each Capital APEX Distribution Date
is equal to the amount of interest payable on or accrued to (as applicable)
such Distribution Date on a Like Amount of Junior Subordinated Debentures;


 


(iii)  Distributions shall be cumulative; and


 


29
















 


(iv)  the amount of Distributions payable for any Distribution
Period shall include the Additional Amounts received by the Issuer Trust, if
any.


 


(d)  In the case of
Stripped APEX, subject to Section 4.1(e):


 


(i)  Distributions will be payable in cash on each Regular
Distribution Date;


 


(ii)  the Distributions payable on each Regular Distribution Date
for the related Distribution Period will be at a rate per annum applied to the Liquidation Amount per Stripped APEX
equal to 1/100th of the Contract Payment payable on a Stock Purchase Contract
having a stated amount of $100,000 on such Stripped APEX Distribution Date
(expressed as a percentage);


 


(iii)  Distributions shall be cumulative; and


 


(iv)  additionally, on each Additional Distribution Date on which
Stripped APEX are Outstanding (or as promptly thereafter as the Collateral
Agent and the Paying Agent determine to be practicable), the Property Trustee
shall distribute or cause to be distributed through the Paying Agent an amount
per $1,000 of Stripped APEX equal to, the Excess Proceeds Distributions for
such Additional Distribution Date.


 


(e)  Distributions on the
Trust Securities of a Series shall be made by the Paying Agent 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 from the Corresponding Assets of such Series for the
payment of such Distributions.  The
Issuer Trust will have amounts to make full Distributions on the relevant Series of
Trust Securities in accordance with Sections 4.1(b), (c) and (d) on
an applicable Distribution Date only if the Depositor has not (i) defaulted
in paying interest on the Junior Subordinated Debentures or Contract Payments
on the Stock Purchase Contracts or (ii) exercised its right to defer
payment of interest on the Junior Subordinated Debentures and Contract Payments
on the Stock Purchase Contracts and, accordingly, there is no outstanding
Deferred Junior Subordinated Debentures Interest Amount or Deferred Contract
Payment Amount.  Deferred Junior
Subordinated Debentures Interest Amounts and Deferred Contract Payment Amounts
will be paid to Holders of the relevant Series of Trust Securities on a pro rata basis on the applicable
Distribution Dates on which such amounts are received by the Issuer Trust (or
as soon thereafter as the Property Trustee determines to be practicable).


 


(f)  In the event the
Property Trustee or the Paying Agent receives any other cash or non-cash
payments or distributions with respect to Corresponding Assets for any Series of
Capital Securities (including promissory notes of the Depositor delivered
pursuant to (i) Section 2.7(c) of the Stock Purchase Contract
Agreement if there are any Deferred Contract Payment Amounts outstanding on the
Stock Purchase Date or (ii) Section 3.5(c) of the Indenture
Supplement if there are any Deferred Junior Subordinated Debentures Interest
Amounts outstanding on the Stock Purchase Date), the Property Trustee shall
distribute or cause to be distributed through the Paying Agent such cash
amounts to the Holders of the related Series of Capital Securities on a pro rata basis promptly after
receipt and may, in its discretion, distribute 


 


30





















 


non-cash amounts on a pro rata basis (or on a basis that is as close as possible to a pro rata basis as it determines to
be reasonably practicable).


 


(g)  Distributions in cash
on the Trust Securities of a Series with respect to an applicable
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 for such Distribution Date, which shall be the last day of
the month immediately preceding the month in which the relevant Distribution
Date falls.  Distributions payable on any
Trust Securities of a Series that are not punctually paid on an applicable
Distribution Date will cease to be payable to the Person in whose name such
Trust Securities are registered on the relevant record date, and such defaulted
Distribution will instead be payable to the Person in whose name such Trust
Securities are registered on the special record date or other specified date
for determining Holders entitled to such defaulted Distributions.


 


SECTION 4.2.  Redemption.  (a)  On each Preferred Stock Redemption
Date, the Issuer Trust will be required to redeem a Like Amount of Normal APEX
and Common Securities at the Preferred Stock Redemption Price.


 


(b)  On any Junior Subordinated
Debentures Redemption Date prior to the Stock Purchase Date or, if earlier, the
Remarketing Settlement Date, the Issuer Trust will be required to redeem (i) a
Like Amount of Normal APEX and Common Securities at the Junior Subordinated
Debentures Redemption Price plus accrued and unpaid Contract Payments through
the date of redemption, (ii) a Like Amount of Capital APEX at the Junior
Subordinated Debentures Redemption Price and (iii) a Like Amount of
Stripped APEX in exchange for the Qualifying Treasury Securities that are
Corresponding Assets of the Stripped APEX and a payment equal to accrued and
unpaid Contract Payments through the date of redemption.


 


(c)  On each Junior
Subordinated Debentures Redemption Date following the Stock Purchase Date or,
if earlier, the Remarketing Settlement Date, the Issuer Trust will be required
to redeem a Like Amount of Capital APEX at the Junior Subordinated Debentures
Redemption Price.


 


(d)  If a Successful
Remarketing occurs, then promptly after the Remarketing Settlement Date the
Issuer Trust shall redeem the Capital APEX, in whole but not in part (including
Capital APEX issued in connection with a Contingent Exchange Election), in kind
by exchanging for each Capital APEX a Like Amount of Junior Subordinated Debentures.  If a Failed Remarketing occurs but on the
Stock Purchase Date there is no Deferred Junior Subordinated Debentures
Interest Amount outstanding, then promptly after the Stock Purchase Date the
Issuer Trust shall redeem the Capital APEX, in whole but not in part, in kind
by exchanging for each Capital APEX a Like Amount of Junior Subordinated
Debentures.  If a Failed Remarketing
occurs and there is a Deferred Junior Subordinated Debentures Interest Amount
outstanding on the Stock Purchase Date, or if the Stock Purchase Contracts
terminate in accordance with the terms of the Stock Purchase Contract Agreement
prior to a Stock Purchase Date occurring, then the Depositor may instruct the
Issuer Trust at any time thereafter when no Deferred Junior Subordinated
Debentures Interest Amount is outstanding to redeem the Capital APEX, in whole
but not in part, in kind by exchanging for each Capital APEX a Like Amount of
Junior Subordinated Debentures.  Any such
redemption will be effected by Book-Entry Transfer 


 


31





















 


of Junior Subordinated Debentures in global
form if the Junior Subordinated Debentures then settle and clear through the
Clearing Agency, and if the Junior Subordinated Debentures do not then settle
and clear through the Clearing Agency by delivery of definitive certificates
evidencing the Junior Subordinated Debentures to the Holders of Capital APEX.


 


(e)  Notice of redemption
shall be given by the Property Trustee by first-class mail, postage prepaid,
mailed not less than 30 (or not less than 20 in the case of a redemption in
kind pursuant to Section 4.2(d) after a Successful Remarketing) 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.  The Depositor shall provide a
completed form of notice of redemption not later than five Business Days prior
to the date of mailing.  All notices of
redemption shall state:


 


(i)  the Redemption Date;


 


(ii)  unless the redemption is a redemption of Capital APEX in
kind pursuant to Section 4.2(d), 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);


 


(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 total Liquidation Amount of the particular
Trust Securities of the relevant Series 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(f)(ii) below; and


 


(vi)  if the Capital Securities Certificates are not Book-Entry
Capital Securities Certificates on the Redemption Date, the place or places
where the Capital Securities Certificates are to be surrendered for the payment
of the Redemption Price.


 


(f)  In the case of a
redemption of Normal APEX and Common Securities pursuant to Section 4.2(a) or
Capital APEX pursuant to Section 4.2(c), in each case for payment of a
cash Redemption Price:


 


(i)  The Trust Securities redeemed on each Redemption Date shall
be redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of a Like Amount of Preferred Stock or Junior Subordinated
Debentures, as applicable.  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 from the Depositor’s redemption of



 


32





















 


 


Preferred
Stock or Junior Subordinated Debentures, as applicable, for the payment of such
Redemption Price.


 


(ii)  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(f)(i), the Property
Trustee or Paying Agent 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 thereof.  With respect to Capital Securities that are
not Book-Entry Capital Securities, the Property Trustee, subject to Section 4.2(f)(i),
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 Securityholders 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
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 Agreement, 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.


 


(iii) 
Subject to Section 4.3(a), if less than all the Outstanding Normal
APEX and Common Securities are to be redeemed on a Redemption Date, then the
aggregate Liquidation Amount of Normal APEX and Common Securities to be redeemed
shall be allocated pro rata to
the Common Securities and the Normal APEX being redeemed based upon the
relative Liquidation Amounts of
such series.  The particular Normal APEX
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 Normal APEX not previously called for redemption or, if that is not
practical, by lot or any other method the Property Trustee deems fair and
appropriate,  provided, however, that so long as the
Normal APEX are in book-entry form, such selection shall be made in accordance
with the customary procedures for the Clearing Agency for the Normal APEX.  The Property Trustee shall promptly notify
the Securities Registrar in writing of the Normal APEX selected for redemption
and, in the case of any Normal APEX selected for partial redemption, the
Liquidation Amount thereof to be redeemed. 
For all purposes of this Trust Agreement, 


 


33





















 


unless the context otherwise
requires, all provisions relating to the redemption of Normal APEX shall
relate, in the case of any Normal APEX redeemed or to be redeemed only in part,
to the portion of the aggregate Liquidation Amount of Normal APEX that has been
or is to be redeemed.


 


(iv)  If less than all the Outstanding Capital APEX are to be
redeemed on a Redemption Date, then the particular Capital APEX 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 APEX not previously called for redemption or, if that is
not practical, by lot or any other method the Property Trustee deems fair and
appropriate,  provided,  however, that so long as the
Capital APEX are in book-entry form, such selection shall be made in accordance
with the customary procedures for the Clearing Agency for the Capital
APEX.  The Property Trustee shall
promptly notify the Securities Registrar in writing of the Capital APEX
selected for redemption and, in the case of any Capital APEX 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 APEX shall relate, in the case of any Capital APEX
redeemed or to be redeemed only in part, to the portion of the aggregate
Liquidation Amount of Capital APEX that has been or is to be redeemed.


 


(v)  Payment of the Redemption Price on the Trust Securities shall
be made to the recordholders thereof as they appear on the Securities Register
for the Trust Securities on the relevant record date, which shall be one
Business Day prior to the relevant Redemption Date;  provided,  however,
that in the event that the Capital Securities do not remain in book-entry-only
form, the relevant record date shall be the date fifteen days prior to the
relevant Redemption Date.


 


SECTION 4.3.  Subordination
of Common Securities.  (a)  If
on any Distribution Date the Paying Agent lacks funds available from payments
of interest, dividends or Contract Payments (as applicable) to make full
Distributions then due on all of the outstanding Trust Securities in accordance
with Section 4.1 (other than because of the Depositor’s proper exercise of
its right to defer payment of Contract Payments or interest on the Junior
Subordinated Debentures), then:


 


(i)  if the deficiency in funds results from the Depositor’s
failure to make a full payment of interest on the Junior Subordinated
Debentures on an interest payment date for the Junior Subordinated Debentures,
then the available funds from the Depositor’s payment of interest on the Junior
Subordinated Debentures shall be applied first to make the Distributions then
due on the Normal APEX and the Capital APEX on a pro rata basis on such Distribution Date up to the amount of
such Distributions corresponding to interest payments on the Junior Subordinated
Debentures (or, if less, the amount of the corresponding Distributions that
would have been made on the Normal APEX and Capital APEX had the Depositor made
a full payment of interest on the Junior Subordinated Debentures) before any
such amount is applied to make a Distribution on Common Securities on such
Distribution Date;


 


 


34





















 


(ii)  if the deficiency in funds results from the Depositor’s
failure to make a full payment of Contract Payments on the Stock Purchase
Contracts on a payment date for Contract Payments, then the available funds
from the Depositor’s payment of Contract Payments shall be applied first to
make Distributions then due on the Normal APEX and the Stripped APEX on a pro rata basis on such Distribution
Date up to the amount of such Distributions corresponding to the Contract
Payments on the Stock Purchase Contracts (or, if less, the amount of the
corresponding Distributions that would have been made on the Normal APEX and
the Stripped APEX had the Depositor made a full payment of Contract Payments on
the Stock Purchase Contracts) before any such amount is applied to make a
Distribution on Common Securities on such Distribution Date; and


 


(iii)  if the deficiency in funds results from the Depositor’s
failure to pay a full dividend on shares of Preferred Stock on a dividend
payment date for the Preferred Stock, then the available funds from the
Depositor’s payment of dividends on the Preferred Stock shall be applied first
to make Distributions then due on the Normal APEX and the Stripped APEX if
still Outstanding pursuant to Section 4.8 on a pro rata basis on such Distribution Date up to the amount of
such Distributions corresponding to dividends on the Preferred Stock (or, if
less, the amount of the corresponding Distributions that would have been made
on the Normal APEX and the Stripped APEX if still Outstanding pursuant to Section 4.8
had the Depositor paid a full dividend on the Preferred Stock) before any such
amount is applied to make a Distribution on Common Securities on such
Distribution Date.


 


(b)  If on any Redemption
Date for a redemption pursuant to Section 4.2(a) the Paying Agent
lacks funds available from the Depositor’s redemption of shares of Preferred
Stock to pay the full Redemption Price then due on all of the outstanding Trust
Securities to be redeemed in accordance with Section 4.2, then (i) the
available funds shall be applied first to pay the Redemption Price on the
Capital Securities to be redeemed on such Redemption Date and (ii) Common
Securities shall be redeemed only to the extent funds are available for such
purpose after the payment of the full Redemption Price on the Capital
Securities to be redeemed, as aforesaid.


 


(c)  If an Early
Termination Event occurs, no Liquidation Distributions shall be made on the
Common Securities until full Liquidation Distributions have been made on each Series of
Capital Securities in accordance with Section 9.4(d).


 


(d)  In the case of the
occurrence of any Event of Default resulting from any Junior Subordinated
Debentures Event of Default or Preferred Stock Default, the Holders of the
Common Securities will be deemed to have waived any 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 so
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.


 


 


35





















 


SECTION 4.4.  Payment Procedures.  Payments of cash Distributions (including
Additional Amounts, if applicable) in respect of the Capital Securities shall,
subject to the next succeeding sentence, 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, which shall credit the relevant
Persons’ accounts at such Clearing Agency on the applicable Distribution
Dates.  A Holder of $1,000,000 or more in
aggregate Liquidation Amount of Capital Securities may receive payments of cash
Distributions (including any Additional Amounts) by wire transfer of
immediately available funds upon written request to the Property Trustee not
later than the 15th calendar day, whether or not a Business Day, before
the relevant Distribution Date.  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) the
appropriate 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 Securityholder the
appropriate 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 Trust, and reimburse the Trust for, the full amount
of any costs, expenses or liabilities of the Trust (other than obligations of
the Trust to pay the Holders of any Capital Securities or other similar
interests in the Trust the amounts due such Holders pursuant to the terms of
the Capital Securities or such other similar interests, as the case may be),
including, without limitation, any taxes, duties or other governmental charges
of whatever nature (other than withholding taxes) imposed on the Trust by the
United States or any other taxing authority. 
Such payment obligation includes any such costs, expenses or liabilities
of the Trust that are required by applicable law to be satisfied in connection
with a dissolution of the 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 


 


36





















 


corresponding
payment such Holder (or Owner) has directly received pursuant to Section 5.8
of the Original Indenture, Section 3.1 of the Stock Purchase Contract
Agreement or Section 5.16 of this Trust Agreement.


 


SECTION 4.8.  Combination of Stripped APEX and
Normal APEX after Stock Purchase Date. 
If either (x) there has been a Successful Remarketing or (y) there
has been a Failed Remarketing but on the Stock Purchase Date there is no
Deferred Junior Subordinated Debentures Interest Amount outstanding (but in the
case of each of clause (x) and (y) only if the Stock Purchase
Contract Agreement is fully performed on the Stock Purchase Date), at the
Securities Registrar’s opening of business on the Business Day next succeeding
the Stock Purchase Date each Stripped APEX with its $1,000 Liquidation Amount
shall automatically be and become a Normal APEX with a $1,000 Liquidation
Amount, and each Stripped APEX Certificate (whether or not a Book-Entry Capital
Securities Certificate) shall be deemed to represent a number of Normal APEX
equal to the number of Stripped APEX represented by such Stripped APEX
Certificate immediately prior to the Securities Registrar’s opening of business
on such date.  If there has been a Failed Remarketing and on the Stock
Purchase Date there is a Deferred Junior Subordinated Debentures Interest Amount outstanding, then Stripped
APEX will continue to remain outstanding after the Stock Purchase Date until
the first date on which no Deferred Junior Subordinated Debentures Interest Amount is outstanding (including
because any notes delivered pursuant to Section 3.5(c) of the
Indenture Supplement have been fully paid) and, on the Business Day after all
Deferred Junior Subordinated Debentures Interest Amounts have been fully paid, each Stripped APEX with its
$1,000 Liquidation Amount shall automatically be and become a Normal APEX with
a $1,000 Liquidation Amount, and each Stripped APEX Certificate (whether or not
a Book-Entry Capital Securities Certificate) shall be deemed to represent a
number of Normal APEX equal to the number of Stripped APEX represented by such
Stripped APEX Certificate immediately prior to the Securities Registrar’s
opening of business on such date.  On or
after such date determined pursuant to either of the two preceding sentences, (a) upon
surrender by a Holder of a Stripped APEX Certificate to the Securities
Registrar, an Administrative Trustee shall execute and deliver to the Securities
Registrar (who shall then deliver to such Holder) a Normal APEX Certificate
representing the appropriate number of Normal APEX, and the Securities
Registrar shall enter such Holder as appropriate in the Securities Register for
the Normal APEX, and (b) as to Normal APEX and Stripped APEX represented
by Book-Entry Preferred Securities, the Depositor, the Administrative Trustees,
the Property Trustee, the Securities Registrar and the Paying Agent shall
cooperate in an effort to cause the Stripped APEX to become Normal APEX in
accordance with the rules and procedures of the applicable Clearing Agency
(including, in the case of DTC if it is the Clearing Agency, adjustment if
necessary or appropriate through DTC’s Deposit/Withdrawal at Custodian (DWAC)
system).


 


37





















 


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.  The Depositor
agrees to take the position, for United States Federal income tax purposes that
(i) the Issuer Trust is not an association or publicly traded partnership
taxable as a corporation, and (ii) the Junior Subordinated Debentures
constitute indebtedness of the Depositor.


 


SECTION 5.2.  The Trust
Securities Certificates.  The Capital
Securities Certificates shall be issued in minimum denominations of one Capital
Security and integral multiples thereof (corresponding to $1,000 Liquidation
Amount and integral multiples of $1,000 in excess thereof), and the Common
Securities Certificates shall be issued in minimum denominations of one Common
Security and integral multiples thereof (corresponding to $1,000 Liquidation
Amount and integral multiples thereof). 
Capital Securities Certificates and Common Securities Certificates shall
not be issued in denominations representing fractions of a Capital Security or
Common Security, as applicable.  The
Trust Securities Certificates shall be executed on behalf of the Issuer Trust
by manual signature of at least one Administrative Trustee.  Trust Securities Certificates bearing the
manual signatures of individuals who were, at the time when such signatures
shall have been affixed, Administrative Trustees 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 Administrative Trustees prior to the
delivery of such Trust Securities Certificates or did not hold such offices at
the date of delivery of such Trust Securities Certificates.  A transferee of a Trust Securities
Certificate shall become a Holder, and shall be entitled to the rights and
subject to the obligations of a Holder hereunder, upon due registration of such
Trust Securities Certificate in such transferee’s name pursuant to Section 5.4,
5.11 or 5.13.


 


SECTION 5.3.  Execution
and Delivery of Trust Securities Certificates.  On the Closing Date, the Administrative
Trustees shall cause Trust Securities Certificates representing the number of
Trust Securities of the applicable Series 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, signed by its chairman of the board, its
president, any executive vice president or any vice president, treasurer or
assistant treasurer or controller, 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 


 


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purpose of
registering Trust Securities Certificates and transfers and exchanges of
Capital Securities Certificates (the “Securities Register”) in which the
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
provisions of Sections 8.1 (other than (c), (d)(i), (d)(iii) and (d)(iv) thereof),
8.3 (other than (g) and (j) thereof) and 8.6 shall apply to the
Securities Registrar in the same manner that by their terms they apply to the
Property Trustee, mutatis  mutandis, as modified by the terms of
the letter agreement, dated January 25, 2008 (the “Agent Agreement”),
by and among the Depositor, the Administrative Trustees, the Securities
Registrar and the Paying Agent, which is hereby incorporated herein by
reference and made a part hereof, and subject to the rights, privileges and
immunities of the Securities Registrar under the Collateral Agreement.  The Depositor shall take such action as shall
be necessary to ensure that at all times there is a Securities Registrar and
that, through the Stock Purchase Date, the same commercial bank or trust company
is both Securities Registrar and Collateral Agent.  By executing this Trust Agreement, the
Depositor appoints U.S. Bank National Association as the initial Securities
Registrar.  Subject to the second
preceding sentence, the Depositor may dismiss the Securities Registrar and
appoint a commercial bank or trust company to act as successor Securities
Registrar.  Any Person acting as
Securities Registrar shall be permitted to resign as Securities Registrar upon
30 days’ written notice to the Administrative Trustees and the Property
Trustee.


 


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 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.  At the option of a Holder, Capital Securities
Certificates may be exchanged for other Capital Securities Certificates in
authorized denominations of the same Series 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.  Neither the Issuer Trust nor the Securities
Registrar shall be required, pursuant to the provisions of this Section 5.4,
(a) to register the transfer of or exchange any Capital Security during a
period beginning at the opening of business 15 days before the day of
selection for redemption of Capital Securities and ending at the close of
business on the day of mailing of notice of redemption or (b) to transfer
or exchange any Capital Security so selected for redemption in whole or in
part, except, in the case of any Capital Security to be redeemed in part, any
portion thereof not to be redeemed.


 


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 or his attorney duly authorized in writing.  Each Capital Securities Certificate
surrendered 


 


39

















 


for
registration of transfer or exchange shall be canceled and subsequently
disposed of by an Administrative Trustee or the Securities Registrar in
accordance with such Person’s customary practice.


 


No service charge shall be made
for any registration of transfer or exchange of Capital Securities
Certificates, but the Securities Registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Capital Securities Certificates.


 


SECTION 5.5.  Mutilated,
Destroyed, Lost or Stolen Trust Securities Certificates.  If (a) any mutilated Trust Securities
Certificate shall be surrendered to the Securities Registrar, or if the
Securities Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Trust Securities Certificate, and (b) there
shall be delivered to the Securities Registrar and the Administrative Trustees
such security or indemnity as may be required by them to save each of them
harmless, then in the absence of notice that such Trust Securities Certificate
shall have been acquired by a protected 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 series, tenor and denomination.  In connection with the issuance of any new
Trust Securities Certificate under this Section, 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 Securityholders.  The Issuer
Trustees or the Securities Registrar shall 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 Securityholders’ Names and Addresses.  Each Holder and each Owner shall be deemed to
have agreed not to hold the Depositor, the Issuer Trustees or the Securities
Registrar accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.


 


SECTION 5.8.  Maintenance
of Office or Agency.  The
Administrative Trustees shall maintain an office or offices or agency or
agencies 


 


40





















 


where Capital
Securities Certificates may be surrendered for registration of transfer or
exchange and for payment, and where notices and demands to or upon the Issuer
Trustees in respect of the Trust Securities Certificates may be served.  The Administrative Trustees initially
designate the Securities Registrar’s Corporate Trust Office as its principal
corporate trust office for such purposes. 
The Administrative Trustees shall give prompt written notice to the
Depositor, the Property Trustee 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 Securityholders 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 Administrative Trustees may revoke such
power and remove the Paying Agent if such Trustees determine in their sole
discretion that the Paying Agent shall have failed to perform its obligations
under this Trust Agreement in any material respect.  The Administrative Trustees hereby appoint
U.S. Bank National Association as the initial Paying Agent, and authorize U.S.
Bank National Association to designate any co-paying agent that is acceptable
to the Administrative Trustees and the Depositor.  Any Person acting as Paying Agent shall be
permitted to resign as Paying Agent upon 30 days’ written notice to the
Administrative Trustees, the Property Trustee and the Depositor.  In the event that U.S. Bank National
Association shall no longer be the Paying Agent or a successor Paying Agent
shall resign or its authority to act be revoked, the Administrative Trustees
shall appoint a successor that is reasonably acceptable to the Property Trustee
and the Depositor to act as Paying Agent (which shall be a bank or trust
company).  The Administrative Trustees
shall cause such successor Paying Agent, any co-paying agent designated by U.S.
Bank National Association or any additional Paying Agent appointed by the
Administrative Trustees to execute and deliver to the Issuer Trustees an
instrument in which such successor Paying Agent, co-paying agent or additional
Paying Agent shall agree with the Issuer Trustees that as Paying Agent, such
successor Paying Agent, co-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
(other than (c), (d)(i), (d)(iii) and (d)(iv) thereof), 8.3 (other
than (g) and (j) thereof) and 8.6 shall apply also to the Paying
Agent for so long as it shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder, in the same manner
that by their terms they apply to the Property Trustee, mutatis mutandis, as
modified by the terms of the Agent Agreement. 
Any reference in this Trust Agreement to the Paying Agent shall include
any co-paying agent unless the context requires otherwise.


 


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SECTION 5.10.  Ownership
of Common Securities by Depositor. 
At the Closing Date, the Depositor shall acquire and 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
Original Indenture, any attempted transfer of the Common Securities other than
to a direct or indirect subsidiary of the Depositor shall be void.  The Administrative Trustees shall cause each
Common Securities Certificate issued to the Depositor to contain a legend
stating “THIS CERTIFICATE IS NOT TRANSFERABLE”.


 


SECTION 5.11.  Book-Entry
Capital Securities Certificates; Common Securities Certificate.  (a)  Except where Definitive Capital
Securities Certificates have been issued to Owners pursuant to Section 5.15:


 


(i)  the provisions of this Section 5.11(a) shall apply
and be in full force and effect;


 


(ii) 
the Securities Registrar, the Paying Agent and the Issuer Trustees shall
be entitled to deal with the Clearing Agency, or its nominee, for all purposes
of this Declaration of Trust relating to the Book-Entry Capital Securities
Certificates (including the
payment of the Liquidation Amount of and 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, and neither any Clearing Agency
Participants nor any other Persons on whose behalf Clearing Agency Participants
may act shall have any rights under this Declaration of Trust with respect to
any Book-Entry Capital Securities Certificates registered in the name of the
Clearing Agency or any nominee thereof or otherwise;


 


(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 Certificates 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 Depositary
Agreement, unless and until Definitive Capital Securities Certificates are
issued pursuant to Section 5.15, 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.  Notwithstanding the foregoing,
(x) the Holder of a Book-Entry Capital Securities Certificate may grant
proxies and otherwise authorize any Person, including the Clearing Agency
Participants and other Persons that are Owners, to take any action that a
Holder of Capital Securities of the relevant Series is entitled to take
under this Trust Agreement or the Capital Securities of the relevant Series,
and 


 


42





















 


(y) nothing
herein shall prevent the Securities Registrar or the Issuer Trustees from
giving effect to any written certification, proxy or other authorization
furnished by the Clearing Agency or shall impair, as between the Clearing
Agency and the Clearing Agency Participants, the operation of customary
practices governing the exercise of the rights of an Owner of any Capital
Security.


 


(b)  Any Book-Entry
Capital Securities Certificate shall represent such number of the Outstanding
Capital Securities of the applicable Series as shall be specified therein
and may provide that it shall represent the aggregate number of Outstanding
Capital Securities of the applicable Series from time to time endorsed
thereon and that the aggregate number of Outstanding Capital Securities of the
applicable Series represented thereby may from time to time be reduced or
increased, as appropriate, to reflect transfers, redemptions or exchanges
(including the Exchanges pursuant to Section 5.13).  Any endorsement of a Book-Entry Capital
Securities Certificate to reflect the number, or any increase or decrease in
the number, of Outstanding Capital Securities of the applicable Series represented
thereby shall be made by the Securities Registrar (i) in such a manner and
upon instructions given by such Person or Persons as shall be specified in such
Capital Securities of the applicable Series or in a Depositor Order to be
delivered to the Securities Registrar pursuant to Section 5.3 or (ii) otherwise
in accordance with written instructions or such other written form or
instructions as is customary for the Clearing Agency for such Capital
Securities, from such Clearing Agency or its nominee on behalf of any Person
having a beneficial interest in such Book-Entry Capital Securities
Certificate.  Subject to the provisions
of Section 5.4, the Securities Registrar shall deliver and redeliver any
Book-Entry Capital Securities Certificate in the manner and upon instructions
given by the Person or Persons specified in such Book-Entry Capital Securities
Certificate or in the applicable Depositor Order (and an Administrative Trustee
shall execute such Book-Entry Capital Securities Certificate as shall be
necessary in order to give effect to the foregoing).


 


(c)  Any Book-Entry
Capital Securities Certificate may be deposited with the Clearing Agency or its
nominee, or may remain in the custody of the Certificate Custodian.


 


(d)  Notwithstanding Section 5.4,
transfers of a Book-Entry Capital Securities Certificate shall be limited to
transfers in whole, but not in part, to the Clearing Agency, its successors or
their respective nominees.  Interests of
Owners in a Book-Entry Capital Securities Certificate may be transferred in
accordance with the rules and procedures of the Clearing Agency.  Definitive Capital Securities Certificates
shall be transferred to Owners in exchange for their beneficial interests in a
Book-Entry Capital Securities Certificate if, and only if, either (1) the
Clearing Agency notifies the Depositor and the Securities Registrar that it is
unwilling or unable to continue as Clearing Agency for the Book-Entry Capital
Securities or if at any time the Clearing Agency ceases to be a Clearing Agency
registered under the Exchange Act and, in either case, a successor Clearing
Agency is not appointed by the Depositor within 90 days of such notice, (2) an
Event of Default has occurred and is continuing and the Securities Registrar
has received a request from the Clearing Agency to issue Definitive Capital
Securities Certificates of each Series in lieu of all or a portion of the
Book-Entry Capital Securities (in which case an Administrative Trustee shall
execute and deliver Definitive Capital Securities Certificates within 30 days
of such request), or (3) the Depositor determines not to have the Capital
Securities represented by the Book-Entry Capital Securities Certificates.


 


43





















 


(e)  In connection with
any transfer of a portion of the beneficial interests in a Book-Entry Capital
Securities Certificate to Owners pursuant to this Section 5.11, the
Securities Registrar shall reflect on its books and records the date and a
decrease in the number of Book-Entry Capital Securities of the applicable Series in
an amount equal to the number of such Capital Securities of the applicable Series to
be transferred, and an Administrative Trustee shall execute and deliver one or
more Definitive Capital Securities Certificates of the same Series representing
the appropriate number of Capital Securities of such Series.


 


(f)  In connection with
the transfer of all the beneficial interests in a Book-Entry Capital Securities
Certificate to Owners pursuant to this Section 5.11, the Book-Entry
Capital Securities Certificates shall be deemed to be surrendered to the
Securities Registrar for cancellation, and an Administrative Trustee shall
execute and deliver to each Owner identified by the Clearing Agency in exchange
for its beneficial interest in the Book-Entry Capital Securities Certificate
being canceled, a Definitive Capital Security Certificate representing an equal
number of Capital Securities of the applicable Series.


 


(g)  None of the Issuer
Trustees, the Securities Registrar, the Paying Agent or the Depositor will have
any responsibility or liability for any acts or omissions of any Clearing
Agency with respect to any Book-Entry Capital Securities, or any aspect of the
records relating to, or payments made on account of, Capital Securities by the
Clearing Agency, or for maintaining, supervising or reviewing any records of
the Clearing Agency relating to the Capital Securities, or for any transactions
between or among a Clearing Agency and a Clearing Agency Participant and/or an
Owner of a beneficial interest in any Book-Entry Capital Securities for
transfers of beneficial interests in any Book-Entry Capital Securities.  None of the Issuer Trustees, the Securities
Registrar, the Paying Agent or the Depositor shall be liable for any delay by
the Clearing Agency in identifying Owners, and each such Person may
conclusively rely on, and shall be protected in relying on, instructions from
the Clearing Agency for all purposes (including with respect to the
registration and delivery, in the respective amounts, of Definitive Capital
Securities Certificates to be issued).


 


(h)  A single Common
Securities Certificate representing the Common Securities shall be issued to
the Depositor in the form of a definitive Common Securities Certificate.


 


SECTION 5.12.  Notices to
Clearing Agency.  To the extent that
a notice or other communication to the Owners is required under this Trust
Agreement, for so long as Capital Securities are represented by Book-Entry
Capital Securities Certificates, the Issuer Trustees shall give all such
notices and communications specified herein to be given to Owners to the
Clearing Agency, and shall have no obligation to give such notice or other
communication to the Owners.


 


SECTION 5.13.  Exchanges.  (a)  This Section 5.13 provides for
the procedures pursuant to which Holders:


 


(i)  of Normal APEX may exchange Normal APEX and Qualifying
Treasury Securities for Stripped APEX and Capital APEX; and


 


44
















 


(ii)  of Stripped APEX and
Capital APEX may exchange Stripped APEX and Capital APEX for Normal APEX and
Pledged Treasury Securities (each, an “Exchange”, and the terms “Exchanged”, “Exchanging”
and “Exchanges” having
correlative meanings).  All deposits, deliveries
or transfers by a Holder pursuant to this Section 5.13 of Normal APEX,
Capital APEX and U.S. Treasury securities (including Qualifying Treasury
Securities) shall be made by Book-Entry Transfer unless the recipient of such
deposit, delivery or transfer expressly agrees otherwise in writing.


 


(b)  Subject to the
conditions set forth in this Trust Agreement, during any Exchange Period a
Holder of Normal APEX may effect an Exchange of Normal APEX and Qualifying
Treasury Securities having a principal amount equal to the Liquidation Amount
of such Normal APEX for Stripped APEX and Capital APEX, each having a
Liquidation Amount equal to the Liquidation Amount of such Normal APEX to be
Exchanged, by:


 


(i)  depositing with the Collateral Agent the U.S. Treasury
security that is the Qualifying Treasury Security on the date of deposit, in
the principal amount of $1,000 for each Normal APEX being Exchanged;


 


(ii)  transferring the Normal APEX being Exchanged to the
Securities Registrar; and


 


(iii)  delivering to the Collateral Agent and the Securities
Registrar, together with the deposit of Qualifying Treasury Securities
deposited pursuant to clause (i) and the transfer of Normal APEX
pursuant to clause (ii), a duly executed and completed “Stripping Notice and Request” in
the form printed on the reverse side of the form of Normal APEX Certificate (x) stating
that the Holder is depositing the appropriate Qualifying Treasury Securities
with the Collateral Agent for deposit in the Collateral Account, (y) stating
that the Holder is transferring the related Normal APEX to the Securities
Registrar in connection with an Exchange of such Normal APEX and Qualifying
Treasury Securities for a Like Amount of Stripped APEX and Capital APEX, and (z) requesting
the delivery to the Holder of such Stripped APEX and Capital APEX.


 


(c)  Upon the deposit and
transfer pursuant to Section 5.13(b) and receipt of the notice and
request referred to in Section 5.13(b)(iii):


 


(i)  the Collateral Agent will release Pledged Junior Subordinated
Debentures of a Like Amount from the Pledge, transfer such Pledged Junior
Subordinated Debentures to the Custody Account free and clear of the Depositor’s
security interest therein, and confirm to the Property Trustee in writing that
such release and transfer has occurred;


 


(ii)  the Collateral Agent shall continue to hold such Junior
Subordinated Debentures in the Custody Account as Custodial Agent for the
Issuer Trust in connection with Capital APEX for which such Junior Subordinated
Debentures are Corresponding Assets; and


 


(iii)  the Securities Registrar, pursuant to the procedures
provided for in Section 5.11 dealing with increasing and decreasing the
number of Capital Securities evidenced by Book-Entry Capital Securities
Certificates, shall cancel the number of 


 


45





















 


Normal APEX
transferred pursuant to Section 5.13(b)(ii) and deliver a Like Amount
of Stripped APEX and Capital APEX to the Holder, all by making appropriate
notations on the Book-Entry Capital Securities Certificates of the appropriate
Series.


 


(d)  Subject to the
conditions set forth in this Trust Agreement, during any Exchange Period a
Holder of Stripped APEX and Capital APEX may effect an Exchange of Stripped
APEX and Capital APEX for Normal APEX and Pledged Treasury Securities having a
principal amount equal to the Liquidation Amount of each of the Stripped APEX
and Capital APEX being Exchanged, by:


 


(i)  transferring the Stripped APEX and the Capital APEX being
Exchanged to the Securities Registrar; and


 


(ii)  delivering to the Securities Registrar, together with the
transfer of Stripped APEX and Capital APEX pursuant to clause (i), and
concurrently delivering to the Collateral Agent a duly executed and completed “Recombination Notice and Request”
in the form printed on the reverse side of the form of Capital APEX Certificate
and Stripped APEX Certificate, (x) stating that the Holder is transferring
the related Stripped APEX and Capital APEX to the Securities Registrar in
connection with the Exchange of such Stripped APEX and Capital APEX for a Like
Amount of each of Normal APEX and Pledged Treasury Securities, (y) requesting
the Collateral Agent to release from the Pledge and deliver to the Holder
Pledged Treasury Securities in a principal amount equal to the Liquidation
Amount of each of the Stripped APEX and Capital APEX being exchanged, and (z) requesting
the Securities Registrar to deliver to the Holder Normal APEX of a Like Amount.


 


(e)  Upon the transfer
pursuant to Section 5.13(d) and receipt of the notice and request
referred to in Section 5.13(d):


 


(i)  the Collateral Agent will release Pledged Treasury Securities
of a Like Amount from the Pledge and deliver such formerly Pledged Treasury
Securities to the Holder free and clear of the Depositor’s security interest
therein, and confirm in writing to the Property Trustee and the Administrative
Trustees that such release and transfer has occurred;


 


(ii)  the Collateral Agent will transfer a Like Amount of Junior
Subordinated Debentures from the Custody Account to the Collateral Account,
re-subjecting such Junior Subordinated Debentures to the Pledge; and


 


(iii)  the Securities Registrar, pursuant to the procedures
provided for in Section 5.11 dealing with increasing and decreasing the
number of Capital Securities evidenced by Book-Entry Capital Securities
Certificates, shall cancel the number of Stripped APEX and Capital APEX
delivered pursuant to Section 5.13(d) and deliver a Like Amount of
Normal APEX to the Holder, all by making appropriate notations on the
Book-Entry Capital Securities Certificates of the appropriate Series.


 


SECTION 5.14.  Remarketing
Elections.  (a)  This Section 5.14
provides for the procedures pursuant to which a Holder:


 


46





















 


(i)  of Normal APEX may elect (a “Contingent Exchange Election”) to cause the Pledged Junior
Subordinated Debentures that are Corresponding Assets for such Holder’s Normal
APEX not to be offered in a Remarketing, with the consequence that such Holder
will receive in exchange Stripped APEX and Capital APEX in a Like Amount if the
Remarketing is Successful; and


 


(ii)  of Capital APEX may elect (a “Contingent Disposition Election”) to cause the Junior
Subordinated Debentures that are Corresponding Assets for such Holder’s Capital
APEX to be offered in the Remarketing, with the consequence that such Holder
will receive the cash proceeds, net of the allocable portion of the Remarketing
Agent’s fee, of the Remarketing of such Junior Subordinated Debentures.


 


(b)  Upon the written
instruction of the Depositor, the Property Trustee shall give appropriate
instructions to the Collateral Agent and the Remarketing Agent in accordance
with the Remarketing Agreement to offer for sale in each Remarketing, and if
the Remarketing is Successful sell as part of such Remarketing, a principal
amount of Junior Subordinated Debentures (or, if the Depositor shall have
elected to remarket the Junior Subordinated Debentures in the form of New
Capital Securities, a liquidation amount of New Capital Securities) equal to
100% of the principal amount of Junior Subordinated Debentures included in the
Trust Property  minus the
sum of (x) the Liquidation Amount of Normal APEX as to which a Contingent
Exchange Election has been made and (y) the Liquidation Amount of Capital
APEX other than Capital APEX as to which a Contingent Disposition Election has
been made.


 


(c)  All deposits,
deliveries or transfers by a Holder pursuant to this Section 5.14 of
Normal APEX, Capital APEX and U.S. Treasury securities (including Qualifying
Treasury Securities) shall be made by Book-Entry Transfer unless the recipient
of such deposit, delivery or transfer expressly agrees otherwise in writing.


 


(d)  Subject to the
conditions set forth in this Trust Agreement, a Holder of Normal APEX may make
a Contingent Exchange Election by:


 


(i)  during the period that commences with the Collateral Agent’s
and the Securities Registrar’s opening of normal business hours on the tenth
Business Day immediately preceding the first day of a Remarketing Period and
ending at 3:00 P.M., New York City time, on the second Business Day
immediately preceding the first day of such Remarketing Period, transferring
the Normal APEX that are the subject of such Contingent Exchange Election to
the Securities Registrar, accompanied by a duly executed and completed “Notice of Contingent Exchange Election”
in the form printed on the reverse side of the form of Normal APEX Certificate;
and


 


(ii)  by not later than 3:00 P.M., New York City time, on the
second Business Day immediately preceding the first day of such Remarketing
Period, depositing with the Collateral Agent, the U.S. Treasury security that
is the Qualifying Treasury Security on the date of deposit, in the amount of
$1,000 for each Normal APEX that is subject to the Contingent Exchange
Election.


 


47





















 


(e)  If a Holder has made
an effective Contingent Exchange Election in accordance with the foregoing
provisions:


 


(i)  if the related Remarketing is Successful:


 


(x) the
Collateral Agent will release Pledged Junior Subordinated Debentures of a Like
Amount from the Pledge, transfer such Junior Subordinated Debentures to the
Custody Account free and clear of the Depositor’s security interest therein,
deposit in the Collateral Account as Pledged Treasury Securities the Qualifying
Treasury Securities deposited with the Collateral Agent pursuant to Section 5.14(d)(ii) and
confirm to the Property Trustee and the Administrative Trustees in writing that
such release of transfers has occurred;


 


(y) the
Collateral Agent shall continue to hold such Junior Subordinated Debentures in
the Custody Account as Custodial Agent for the Issuer Trust in connection with
Capital APEX for which such Junior Subordinated Debentures are Corresponding
Assets; and


 


(z) the
Securities Registrar, pursuant to the procedures provided for in Section 5.11
dealing with increasing and decreasing the number of Capital Securities
evidenced by Book-Entry Capital Securities Certificates, shall cancel the
number of Normal APEX transferred pursuant to Section 5.14(d)(i) and
deliver a Like Amount of Capital APEX and Stripped APEX to the Holder, all by
making appropriate notations on the Book-Entry Capital Securities Certificates
of the appropriate Series; and


 


(ii)  if the related Remarketing is not Successful:


 


(x) promptly
after the last day of the Remarketing Period, the Collateral Agent will deliver
back to such Holder the Qualifying Treasury Securities delivered by such Holder
to the Collateral Agent pursuant to the Section 5.14(d)(ii); and


 


(y) the
Securities Registrar will disregard the delivery by such Holder of Normal APEX
pursuant to Section 5.14(d)(i), with the consequence that such Holder
shall be deemed continued to hold such Normal APEX.


 


(f)  Subject to the
conditions set forth in this Trust Agreement, a Holder of Capital APEX may make
a Contingent Disposition Election by, during the period that commences with the
Securities Registrar’s opening of normal business hours on the tenth Business
Day immediately preceding the first day of a Remarketing Period and ending at
3:00 P.M., New York City time, on the second Business Day immediately
preceding the first day of such Remarketing Period, transferring the Capital
APEX that are the subject of such Contingent Disposition Election to the
Securities Registrar, accompanied by a duly completed “Notice of Contingent Disposition Election”
in the form printed on the reverse side of the form of Capital APEX
Certificate.


 


48





















 


(g)  If a Holder has made
an effective Contingent Disposition Election in accordance with the foregoing
provisions:


 


(i)  if the related Remarketing is Successful:


 


(x) the
Securities Registrar, pursuant to the procedures provided for in Section 5.11
dealing with increasing and decreasing the number of Capital Securities
evidenced by Book-Entry Capital Securities Certificates, shall cancel the
number of Capital APEX transferred pursuant to Section 5.14(f); and


 


(y) on or
promptly after the Remarketing Settlement Date, the Collateral Agent will pay
to the Property Trustee or its designee, and the Property Trustee through the
Paying Agent will pay to such Holder, an amount in cash for each Capital APEX
subject to such Contingent Disposition Election equal to the proceeds of sale
of $1,000 principal amount of Junior Subordinated Debentures, net of a pro rata portion of the Remarketing
Agent’s fee, in the Remarketing; and


 


(ii)  if the Remarketing is not Successful, the Securities
Registrar will disregard the delivery by such Holder of Capital APEX pursuant
to Section 5.14(f), with the consequence that such Holder shall continue
to hold such Capital APEX.


 


SECTION 5.15.  Definitive
Capital Securities Certificates.  The
Capital Securities Certificates issued at the Time of Delivery shall be issued
as Book-Entry Capital Securities Certificates in accordance with Section 2.4.  Additionally, if (a) the Depositor
advises the Issuer Trustees in writing that the Clearing Agency is no longer
willing or able to properly discharge its duties with respect to the Capital
Securities Certificates and the Depositor is unable 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 Junior Subordinated Debentures
Event of Default, Owners of Capital Securities Certificates representing
beneficial interests aggregating at least a Majority in Liquidation Amount of
the Capital Securities of all Series, considered together as a single Series,
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 shall notify all Owners of Capital Securities of the
occurrence of any such event and of the availability of the Definitive Capital
Securities Certificates to Owners of such Series, as applicable, requesting the
same.  Upon surrender to the
Administrative Trustees of the 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.  Neither the Securities Registrar nor the
Issuer Trustees shall be liable for any delay in delivery of such instructions
and may conclusively rely on, and shall be protected in relying on, 


 


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such
instructions.  Upon the issuance of
Definitive Capital Securities Certificates, the Issuer Trustees shall recognize
the Holders of the Definitive Capital Securities Certificates as holders of
Trust Securities.  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.


 


SECTION 5.16.  Rights of Securityholders; Waivers
of Past Defaults.  

(a)  The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such), on behalf of the Issuer Trust,
subject to and 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 Capital 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 beneficial interests in
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 shareholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware.


 


(b)  For so long as any
Capital Securities of the Affected Series remain Outstanding, if, upon a
Junior Subordinated Debentures Event of Default, the Junior Subordinated
Debentures Trustee fails or the holders of not less than 25% in principal
amount of the outstanding Junior Subordinated Debentures fail to declare the
principal of all of the Junior Subordinated Debentures to be immediately due
and payable, the Property Trustee or the Holders of at least 25% in Liquidation
Amount of the Capital Securities of the Affected Series then Outstanding,
considered together as a single class, shall have the right to make such
declaration by a notice in writing to the Depositor, the Junior Subordinated
Debentures Trustee and the Property Trustee, in the case of notice by the
Holders of the Capital Securities of the Affected Series, or to the Depositor,
the Junior Subordinated Debentures Trustee and the Holders of the Capital
Securities of the Affected Series, in the case of notice by the Property
Trustee, and upon any such declaration such principal amount of and the accrued
interest on all of the Junior Subordinated Debentures shall become immediately
due and payable as provided in the Indenture,  provided, however, that the payment of principal
and interest on such Junior Subordinated Debentures shall remain subordinated
to the extent provided in the Indenture.


 


At any time after a declaration
of acceleration with respect to the Junior Subordinated Debentures has been
made and before a judgment or decree for payment of the money due has been
obtained by the Junior Subordinated Debentures Trustee as provided in the 


 


50

















 


Indenture, the
Holders of at least a Majority in Liquidation Amount of the Capital Securities
of the Affected Series, considered together as a single class, by written
notice to the Property Trustee, the Depositor and the Junior Subordinated
Debentures Trustee, may rescind and annul such declaration and its consequences
if:


 


(i)  the Depositor has paid or deposited with the Junior
Subordinated Debentures Trustee a sum sufficient to pay


 


(A)  all overdue installments of interest (including any
Additional Interest (as defined in the Indenture)) on all of the Junior
Subordinated Debentures,


 


(B)  the principal of (and premium, if any, on) any Junior
Subordinated Debentures that have become due otherwise than by such declaration
of acceleration and interest (including any Additional Interest (as defined in
the Indenture)) thereon at the rate borne by the Junior Subordinated
Debentures, and


 


(C)  all sums paid or advanced by the Junior Subordinated
Debentures Trustee under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Junior Subordinated Debentures
Trustee, its agents and counsel; and


 


(ii)  all Events of Default with respect to the Junior
Subordinated Debentures, other than the non-payment of the principal of the
Junior Subordinated Debentures that has become due solely by such acceleration,
have been cured or waived as provided in Section 5.13 of the Original
Indenture.


 


The Holders of at least a
Majority in Liquidation Amount of the Capital Securities of the Affected
Series, considered together as a single class, may, on behalf of the Holders of
all the Capital Securities of the Affected Series, waive any past default under
the Indenture, except a default in the payment of principal or interest (unless
such default has been cured or annulled as provided in Section 5.3 of the
Indenture and the Company has paid or deposited with the Junior Subordinated
Debentures Trustee a sum sufficient to pay all overdue installments of interest
(including any Additional Interest (as defined in the Indenture)) on the Junior
Subordinated Debentures, the principal of (and premium, if any, on) any Junior
Subordinated Debentures which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate borne by the
Junior Subordinated Debentures, and all sums paid or advanced by the Junior
Subordinated Debentures Trustee under the Indenture and the reasonable
compensation, expenses, disbursements and advances of the Junior Subordinated
Debentures Trustee and the Property Trustee, their agents and counsel) or a
default in respect of
a covenant or provision which under the Indenture cannot be modified or amended
without the consent of the holder of each outstanding Junior
Subordinated Debentures.  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 of the
Affected Series a record date shall be established for determining Holders
of Outstanding Capital Securities of the Affected Series entitled to join
in such notice, which record date shall be 


 


51

















 


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, however,
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 5.16(b).


 


(c)  For so long as any
Capital Securities of the Affected Series remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust
Agreement and the Indenture, upon a Junior Subordinated Debentures Event of
Default specified in the Indenture Supplement, any Holder of Capital Securities
of the Affected Series shall have the right to institute a proceeding
directly against the Depositor, pursuant to Section 5.8 of the Original
Indenture, for enforcement of payment to such Holder of any amounts payable in
respect of a Like Amount of Junior Subordinated Debentures (a “Direct Action”).  Except as set forth in Section 5.16(b) and
this Section 5.16(c), the Holders of Capital Securities of the Affected Series shall
have no right to exercise directly any right or remedy available to the holders
of, or in respect of, the Junior Subordinated Debentures.


 


(d)  For so long as any
Capital Securities of the Affected Series remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust
Agreement and the Stock Purchase Contract Agreement, if the Depositor fails to
pay when due any Contract Payments under the Stock Purchase Contract Agreement
(after giving effect to the Depositor’s deferral right under Section 2.7
of the Stock Purchase Contract Agreement), any Holder of Capital Securities of
the Affected Series shall have the right to institute a proceeding
directly against the Depositor, pursuant to Section 3.1 of the Stock
Purchase Contract Agreement, for enforcement of payment to such Holder of any
amounts payable in respect of a Like Amount of Stock Purchase Contracts (also a
“Direct Action”).  Except as set forth in this Section 5.16(d),
the Holders of Capital Securities of the Affected Series shall have no
right to exercise directly any right or remedy under the Stock Purchase
Contract Agreement available to the Issuer Trust (acting through the Property
Trustee) as a party thereto.


 


(e)  Except as otherwise
provided in Sections 5.16(a), (b), (c) and (d), 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 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 there from 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.


 


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SECTION 5.17.  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, however, 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.


 


SECTION 5.18.  Remarketing
Procedures.  (a)  The Depositor
will give notice to the Property Trustee of a Remarketing at least 28 days
prior to the first day of the related Remarketing Period.  Upon written instruction of the Depositor
(accompanied by a notice prepared in accordance with the requirements of this Section 5.18),
the Property Trustee will give holders of Normal APEX and Capital APEX, and
will request that the Clearing Agency give to its participants holding Normal
APEX or Capital APEX, notice of a Remarketing at least 21 days prior to the
first day of the related Remarketing Period. 
Such notices will set forth:


 


(i)  the beginning and ending dates of the Remarketing Period and
the applicable Remarketing Settlement Date and Stock Purchase Date in the event
the Remarketing is successful;


 


(ii)  for interest periods for the Junior Subordinated Debentures
commencing on or after the Remarketing Settlement Date, the applicable interest
payment dates and related record dates;


 


(iii)  any change in the stated maturity date of the Junior
Subordinated Debentures and, if applicable, the date on and after which the
Depositor will have the right to redeem the Junior Subordinated Debentures
other than pursuant to a Special Event (which is subject to Section 4.2 of
the Indenture Supplement);


 


(iv)  whether the Depositor’s obligations under the Junior
Subordinated Debentures will no longer be subordinated to Senior Indebtedness
(as defined in the Indenture) and no longer be subject to deferral after the
Remarketing Settlement Date;


 


(v)  any other changes in the terms of the Junior Subordinated
Debentures notified by the Depositor in connection with such Remarketing
pursuant to Section 4.2 of the Indenture Supplement (including on a Final
Remarketing that is a Failed Remarketing, any change in the Stated Maturity
Date (as defined in the Indenture) and, if applicable, the date on or after
which the Issuer Trust will have the right to redeem the Junior Subordinated
Debentures other than pursuant to a Special Event (which is subject to Section 4.2
of the Indenture Supplement));


 


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(vi)  the procedures a Holder of Normal APEX must follow to elect
to exchange its Normal APEX for Stripped APEX and Capital APEX if the
Remarketing is Successful, and the date by which such election must be made;
and


 


(vii)  the procedures a Holder of Capital APEX must follow to
elect to dispose of its Capital APEX in connection with a Remarketing and the
date by which such election must be made.


 


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 Junior
Subordinated 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 Junior
Subordinated Debentures Trustee, or execute any trust or power conferred on the
Junior Subordinated Debentures Trustee with respect to the Junior Subordinated
Debentures, (ii) waive any past default that may be waived under Section 5.13
of the Original Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the Junior Subordinated Debentures shall
be due and payable, or (iv) consent to any amendment, modification or
termination of the Indenture or the Junior Subordinated Debentures, where such
consent shall be required by the Holders of the Junior Subordinated Debentures
pursuant to the terms of the Indenture, without, in each case, obtaining the
prior approval of the Holders of at least a Majority in Liquidation Amount of
the Normal APEX and the Capital APEX then Outstanding, considered together as a
single class;  provided, however,
that where a consent under the Indenture would require the consent of each
holder of Junior Subordinated Debentures affected thereby, no such consent
shall be given by the Property Trustee without the prior written consent of
each Holder of Normal APEX and Capital APEX. 
The Issuer Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of the Normal APEX and the Capital APEX,
except by a subsequent vote of the Holders of the Normal APEX and the Capital
APEX.  The Property Trustee shall notify
all Holders of the Normal APEX and the Capital APEX of any notice of default
received with respect to the Junior Subordinated Debentures.  In addition to obtaining the foregoing
approvals of the Holders of the Normal APEX and the Capital APEX, 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 classified as an
association or a publicly traded partnership taxable as a corporation or as
other than one or more grantor trusts or agency arrangements for United States
Federal income tax purposes.


 


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(c)  For so long as any Stock
Purchase Contracts are outstanding, at the request of the Depositor the
Property Trustee may consent to any amendment to or modification of the Stock
Purchase Contract Agreement or the Collateral Agreement, without having
obtained the prior approval of the Holders of any Capital Securities to such amendment
or modification, for the purposes of (i) evidencing the succession of
another person to the Issuer Trust’s or the Property Trustee’s obligations
thereunder, (ii) adding to the covenants therein for the benefit of the
Issuer Trust or the Property Trustee or to surrender any of the Depositor’s
rights or powers thereunder, (iii) evidencing and providing for the
acceptance of appointment of a successor Collateral Agent, Custodial Agent or
Securities Intermediary under the Collateral Agreement, (iv) curing any
ambiguity, or correcting or supplementing any provisions that may be
inconsistent, (v) conforming the terms of the Stock Purchase Contract
Agreement or the Collateral Agreement, to the descriptions thereof in the
Prospectus, or (vi) making any other provisions with respect to such
matters or questions,  provided,
however, that such action pursuant to this clause (vi) shall
not adversely affect the interest of the Holders of Capital Securities of any Series in
any material respect.  At the request of the
Depositor the Property Trustee may, with the consent of the Holders of not less
than a Majority in Liquidation Amount of the Normal APEX and Stripped APEX then
Outstanding, considered together as a single class, agree to any other
amendment to or modification of the Stock Purchase Contract Agreement or the
Collateral Agreement, except
that, without obtaining the prior written consent of each Holder of Normal APEX
and Stripped APEX then Outstanding, the Issuer Trustees may not agree to any
amendment or modification that would (A) change any payment dates for
Contract Payments, (B) change the amount or type of Pledged Junior
Subordinated Debentures or Pledged Treasury Securities required to be pledged
under the Collateral Agreement, impair the right of the Property Trustee (on
behalf of the Issuer Trust) to receive distributions on Pledged Junior
Subordinated Debentures or Pledged Treasury Securities or otherwise adversely
affect the Issuer Trust’s rights in or to the Pledged Junior Subordinated
Debentures or Pledged Treasury Securities, (C) change the place or
currency or reduce any Contract Payments, (D) impair the Property Trustee’s
right (or any Holder’s right pursuant to Section 5.16(d)) to institute
suit for the enforcement of the Stock Purchase Contracts or payment of any
Contract Payments, or (E) reduce the number of shares of Preferred Stock
purchasable under the Stock Purchase Contracts, increase the price to purchase
Preferred Stock upon settlement of the Stock Purchase Contracts, change the
Stock Purchase Date or otherwise adversely affect the Issuer Trust’s rights
under the Stock Purchase Contracts.


 


(d)  So long as any shares
of Preferred Stock are held by the Property Trustee on behalf of the Issuer
Trust, the Issuer Trustees shall not waive any Preferred Stock Default without
obtaining the prior approval of the Holders of at least a Majority in
Liquidation Amount of the Normal APEX and the Stripped APEX then Outstanding,
considered together as a single class. 
Additionally, in addition to and notwithstanding the foregoing, the
Issuer Trustees shall not consent to any amendment to the Certificate of
Designation or the Depositor’s articles of organization that would change the
dates on which dividends are payable on the Preferred Stock or the amount of
such dividends, without the prior written consent of each Holder of Normal APEX
and Stripped APEX.  In addition to
obtaining the foregoing approvals of the Holders of Normal APEX and Stripped
APEX, prior to taking any of the foregoing actions, the Property Trustee 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 classified as an 


 


55





















 


association or a publicly traded partnership
taxable as a corporation or as other than one or more grantor trusts or agency
arrangements for United States Federal income tax purposes.


 


(e)  If any proposed
amendment to or modification of the Trust Agreement, the Stock Purchase
Contract Agreement or the Collateral Agreement provides for, or any of the
Issuer Trustees otherwise proposes to effect, (i) any action that would
adversely affect in any material respect the powers, preferences or special
rights of the Capital Securities of any Series in a manner that is
different from the manner in which it would affect the Capital Securities of
other Series, whether by way of amendment to or modification of the Trust
Agreement, the Stock Purchase Contract Agreement or the Collateral 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
the Outstanding Capital Securities of such Series 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 of such Series.  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 classified as
an association or publicly traded partnership taxable as a corporation or as
other than one or more grantor trusts or agency arrangements for United States
Federal income tax purposes.


 


(f)  No amendment to or
modification of any Transaction Document that adversely affects the rights,
duties or immunities of the Securities Registrar, the Paying Agent, the Collateral
Agent, the Securities Intermediary or the Custodial Agent shall be effective as
against any such affected party without its consent.


 


(g)  The Property Trustee
may request a vote or seek the consent of the Holders of the applicable series
of APEX in connection with any matters on which it is permitted to exercise
voting or other consensual rights with respect to the Junior Subordinated
Debentures pursuant to Section 7.01 of the Collateral Agreement.


 


SECTION 6.2.  Notice of
Meetings.  Notice of all meetings of
the Holders of the Capital Securities of any one or more Series, stating the
time, place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 12.8 to each Holder of Capital Securities of each Series entitled
to attend such meeting, 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
Securityholders of the Capital Securities. 
No annual meeting of Securityholders is required to be held.  The Administrative Trustees, however, shall
call a meeting of the Securityholders of the Capital Securities of a Series to
vote on any matter upon the written request of the Securityholders of at least
25% in aggregate Liquidation Amount of the Outstanding Capital Securities of
such Series; the Administrative Trustees shall call a meeting of the
Securityholders of the Capital Securities of all Series to 


 


56





















 


vote on any
matter upon the written request of the Securityholders of at least 25% in
aggregate Liquidation Amount of the Outstanding Capital Securities of all
Series, considered together; 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 of any Series to vote on any matters as to which
such Holders are entitled to vote.


 


The Holders of record of 50% of
the Capital Securities of the Applicable Series entitled to attend a
meeting, present in person or by proxy, shall constitute a quorum at any
meeting of the Securityholders of the Capital Securities.


 


If a quorum is present at a
meeting, an affirmative vote by the Securityholders present, in person or by
proxy, holding Capital Securities representing at least a Majority in
Liquidation Amount of the Capital Securities of the Applicable Series entitled
to attend such meeting 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 of the Applicable Series invited to attend such meeting,
unless this Trust Agreement requires a greater number of affirmative votes.


 


Any and all meetings of the
Securityholders shall be held outside of the Commonwealth of Massachusetts.


 


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 Securityholders 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, however,
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
and without prior notice if Holders holding at least a Majority in Liquidation
Amount 


 


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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 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
Administrative Trustees.  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.


 


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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 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 Agreement to
enforce its rights under the Guarantee Agreement without first instituting a
legal proceeding against the Issuer Trust 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.


 


SECTION 6.10.  All Votes
Must Be Made by a United States Person. 
Voting and consensual rights available to or in favor of Holders or
Owners under this Trust Agreement may be exercised only by a United States
Person that is a beneficial owner of a Trust Security or by a United States
Person acting as irrevocable agent with discretionary powers for the beneficial
owner of a Trust Security that is not a United States Person.  Holders that are not United States Persons
must irrevocably appoint a United States Person with discretionary powers to act
as their agent with respect to such voting and consensual rights.


 


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 and validly existing 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;


 


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(c)  the Delaware Trustee is a limited purpose trust company, duly
organized and validly existing under the laws of the State of Delaware with its
principal place of business in the State of Delaware;


 


(d)  the Delaware Trustee has full limited purpose trust company
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 similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; and


 


(f)  the execution, delivery and performance of this Trust
Agreement 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 (with respect to the Delaware
Trustee) or the State of New York (with respect to the Property Trustee), as
the case may be, in each case 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 (with respect to the
Delaware Trustee) or the State of New York (with respect to the Property
Trustee), in each case 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 


 


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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.


 


If an Event of Default has
occurred (that has not been cured or waived pursuant to Section 5.16), 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.


 


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


 


(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 and, in the case of the Property Trustee, by the Trust
Indenture Act.  Notwithstanding the
foregoing, 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. 
To the extent that, at law or in equity, an Issuer Trustee has duties
and liabilities relating to the Issuer Trust or to the Holders, such Issuer
Trustee shall not be liable to the Issuer Trust or to any Holder for such
Issuer Trustee’s good faith reliance on the provisions of this Trust
Agreement.  Except as otherwise required
by the Trust Indenture Act and the Commission’s rules thereunder
applicable to indentures qualified under such Act, the provisions of this Trust
Agreement, to the extent that they restrict the duties and liabilities of the
Issuer 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
Issuer Trustees.


 


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(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)  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 12.11), and no implied covenants shall be read into
this Trust Agreement against the Property Trustee.


 


(d)  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 12.11), 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 12.11);
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 on their face 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 written direction (and the Property Trustee shall be entitled in writing to
request, and upon such request to receive 


 


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such written
direction) of the Depositor or the Holders of at least a Majority in
Liquidation Amount of the Capital Securities of all Affected Series considered
together as a single Series, 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;


 


(iv)  the Property Trustee’s sole duty with respect to the
custody, safekeeping and physical preservation of the Junior Subordinated
Debentures and the Payment Account shall be (A) before the occurrence of
any Event of Default and after the curing of all Events of Default that may
have occurred, to undertake to perform only such duties as are specifically set
forth in this Trust Agreement and the Trust Indenture Act, and (B) in case
an Event of Default has occurred (that has not been cured or waived pursuant
hereto), to 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, 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; and


 


(vi)  the Property Trustee shall not be responsible for monitoring
the compliance by the Administrative Trustees, the Depositor, the Collateral
Agent, the Securities Registrar, the Custodial Agent, the Paying Agent, the
Remarketing Agent or any other Person, with their respective duties under this
Trust Agreement or any Transaction Document, nor shall the Property Trustee be liable
for the default or misconduct of any other Issuer Trustee, the Depositor, the
Collateral Agent, the Securities Registrar, the Custodial Agent, the Paying
Agent, the Remarketing Agent or any other Person.


 


SECTION 8.2.  Certain
Notices.  Within 30 days after
the occurrence of any Event of Default actually known to a Responsible Officer
of the Property Trustee or the Administrative Trustees, the Property Trustee or
the Administrative Trustees shall transmit, in the manner and to the extent
provided in Section 12.8, notice of such Event of Default to the Holders
of each Affected Series, unless such Event of Default shall have been cured or
waived.


 


For so long as Junior
Subordinated Debentures are included within the Trust Property, 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 Junior Subordinated Debentures
pursuant to the Indenture, the Property Trustee or the Administrative Trustees
shall transmit, in the manner and to the extent provided in Section 12.8,
notice of such exercise to the Holders of the Normal APEX and the Capital APEX,
unless by like notice such exercise shall have been revoked.


 


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If during any calendar year any
original issue discount shall have accrued on the Junior Subordinated
Debentures, the Depositor shall file with each Paying Agent (including the
Property Trustee if it is a Paying Agent) promptly at the end of such calendar
year (i) a written notice specifying the amount of original issue discount
(including daily rates and accrual periods) accrued on outstanding Junior
Subordinated Debentures as of the end of such year and (ii) such other
specific information relating to such original issue discount as may then be
relevant under the Internal Revenue Code of 1986, as amended from time to time.


 


For so long as Stock Purchase
Contracts are included within the Trust Property, within five Business Days
after the receipt of notice of the Depositor’s exercise of its right to defer
Contract Payments, the Property Trustee or the Administrative Trustees shall
transmit, in the manner and to the extent provided in Section 12.8, notice
of such exercise to the Holders of the Normal APEX and the Stripped APEX, unless
such exercise shall have been revoked.


 


For so long as shares of
Preferred Stock are included within the Trust Property, within five Business
Days after the receipt of notice of the Depositor’s determination not to pay
dividends on a dividend payment date, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 12.8, notice of such
decision to the Holders of the Normal APEX and Stripped APEX, unless such
notice shall have been revoked.


 


The Property Trustee shall not
be deemed to have knowledge of any Event of Default unless the Property Trustee
shall have received written notice or a Responsible Officer of the Property
Trustee having direct responsibility for 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, judgment, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or document
(including e-mail, facsimile or other electronic transmission) believed by it
to be genuine and to have been signed or presented by the proper Person or
Persons (without being required to determine the correctness of any fact stated
therein);


 


(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;  provided,
however, that if the Depositor fails to deliver such opinion, the
Property Trustee may take such action, or refrain from taking such action, as
the Property Trustee shall deem 


 


64

















 


advisable and
in the 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)  whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be established before
undertaking, suffering or omitting any action hereunder, the Property Trust
(unless other evidence is herein specifically prescribed) may, in the absence
of bad faith on its part, request and conclusively rely upon an Officers’
Certificate which, upon receipt of such request, shall be promptly delivered by
the Depositor;


 


(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 of its own
selection (which counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees) and the advice of such
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon and in accordance with such advice; the Property Trustee shall
have the right at any time to seek instructions concerning the administration
of this Trust Agreement from any court of competent jurisdiction;


 


(g)  the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Trust Agreement at the request
or direction of any of the Holders pursuant to this Trust Agreement, unless
such Holders shall have offered to the Property Trustee reasonable security or
indemnity satisfactory to it against the costs, expenses and liabilities that
might be incurred by it in compliance with such request or direction;


 


(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, and the Property Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent or attorney appointed
with due care 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 


 


65

















 


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.


 


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 Junior Subordinated Debentures.


 


SECTION 8.5.  May Hold
Securities.  Except as provided in
the definition of the term “Outstanding” in Article I, 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, 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
separately 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 shall be determined to have been caused by
their own negligence or bad faith; 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, 


 


66

















 


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, action, suit, 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 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.


 


Notwithstanding any provision
of law or equity, the Depositor or any Issuer Trustee in its individual
capacity 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. 
Notwithstanding any provision of law or equity, 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.  Notwithstanding any provision of law or
equity, any Issuer Trustee in its individual capacity may engage or be
interested in any financial or other transaction with the Depositor or any
Affiliate of the Depositor, or may act as Depositary 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, the combined capital and surplus of such Person shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. 
If at any time the Property Trustee with respect to the Trust Securities
shall cease to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect hereinafter
specified in this Article.  At the time
of appointment, the Property Trustee must 


 


67

















 


have
securities rated in one of the three highest rating categories by a nationally
recognized statistical rating system.


 


(b)  There shall at all
times be one or more Administrative Trustees hereunder with respect to the
Trust Securities.  Each Administrative
Trustee shall be either a natural person who is at least 21 years of age
or a legal entity that shall act through one or more persons authorized to bind
that entity.


 


(c)  There shall at all
times be a Delaware Trustee.  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 and until a Junior Subordinated
Debentures 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 Holder of Common Securities and the
Administrative Trustees, by agreed action of the majority of such Issuer
Trustees, shall have power to
appoint, and upon the written request of the Administrative Trustees, the
Depositor shall for such purpose join with the Administrative Trustees in the
execution, delivery and performance of all instruments and agreements necessary
or proper to appoint, one or more Persons 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.  If
the Depositor does not join in such appointment within 15 days after the
receipt by it of a request to do so, or in case a Junior Subordinated
Debentures Event of Default has occurred
and is continuing, the Property Trustee shall have the sole power to make such
appointment.  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 


 


68

















 


authorized to bind such
entity.  Any co-trustee or separate
trustee shall not be required to meet the other qualifications in Section 8.7(a).


 


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.


 


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 and delivered, 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
Issuer Trustees specified hereunder shall be exercised solely by the Issuer
Trustees and not by such co-trustee or separate trustee.


 


(b)  The rights, powers,
duties, and obligations hereby conferred or imposed upon the Property Trustee
in respect of any property covered by such appointment shall be conferred or
imposed upon and exercised or performed by the Property Trustee or by the Property
Trustee and such co-trustee or separate trustee jointly, as shall be provided
in the instrument appointing such co-trustee or separate trustee, except to the
extent that under any law of any jurisdiction in which any particular act is to
be performed, the Property Trustee shall be incompetent or unqualified to
perform such act, in which event such rights, powers, duties and obligations
shall be exercised and performed by such co-trustee or separate trustee.


 


(c)  The Property Trustee
at any time, by an instrument in writing executed by it, with the written
concurrence of the Depositor, may accept the resignation of or remove any
co-trustee or separate trustee appointed under this Section, and, in case a
Junior Subordinated Debentures Event of Default has occurred and is continuing,
the Property Trustee shall have power to accept the resignation of, or remove,
any such co-trustee or separate trustee without the concurrence of the
Depositor.  Upon the written request of
the Property Trustee, the Depositor shall join with the Property Trustee in the
execution, delivery and performance of all instruments and agreements necessary
or proper to effectuate such resignation or removal.  A successor to any co-trustee or separate
trustee so resigning or removed may be appointed in the manner provided in this
Section.


 


(d)  No co-trustee or
separate trustee hereunder shall be personally liable by reason of any act or
omission of the Property Trustee or any other trustee hereunder.


 


(e)  The Property Trustee
shall not be liable by reason of any act of a co-trustee or separate trustee.


 


(f)  Any Act of Holders
delivered to the Property Trustee shall be deemed to have been delivered to
each such co-trustee and separate trustee.


 


SECTION 8.10.  Resignation
and Removal; Appointment of Successor. 
No resignation or removal of any Issuer Trustee (the “Relevant 


 


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Trustee”)
and no appointment of a successor Issuer Trustee pursuant to this Article VIII
shall become effective until the acceptance of appointment by the successor
Issuer Trustee in accordance with the applicable requirements of Section 8.11.


 


Subject to the immediately
preceding paragraph, the Relevant Trustee may resign at any time by giving
written notice thereof to the Holders. 
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 30 days after the giving of such notice of resignation, the
Relevant Trustee may petition, at the expense of the Issuer Trust, any court of
competent jurisdiction for the appointment of a successor Relevant Trustee.


 


Unless a Junior Subordinated
Debentures Event of Default shall have occurred and be continuing, any Issuer
Trustee may be removed at any time by Act of the Common Securityholder.  If a Junior Subordinated Debentures Event of
Default shall have occurred and be continuing, the Property Trustee or the
Delaware Trustee, or both of them, may be removed at such time by Act of the
Holders of a majority in Liquidation Amount of the Capital Securities,
delivered to the Relevant Trustee (in its individual capacity and on behalf of
the Trust).  An Administrative Trustee
may be removed by Act of the Common Securityholder at any time.


 


If any Issuer Trustee shall
resign, 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, at a
time when no Junior Subordinated Debentures Event of Default shall have
occurred and be continuing, the Common Securityholder, by Act of the Common
Securityholder delivered to the retiring Issuer Trustee, shall promptly appoint
a successor Issuer Trustee or Issuer Trustees, and the retiring Issuer Trustee
shall comply with the applicable requirements of Section 8.11.  If the Property Trustee or the Delaware
Trustee shall resign, be removed or become incapable of continuing to act as
the Property Trustee or the Delaware Trustee, as the case may be, at a time
when a Junior Subordinated Debentures Event of Default shall have occurred and
be continuing, the Capital Securityholders, by Act of the Securityholders of a
majority in Liquidation Amount of the Capital Securities then Outstanding
delivered to the retiring Relevant Trustee, with a copy to the Property
Trustee, shall promptly appoint a successor Relevant Trustee or Trustees, and
such successor Trustee shall comply with the applicable requirements of Section 8.11.  If an Administrative Trustee shall resign, be
removed or become incapable of acting as Administrative Trustee, at a time when
a Junior Subordinated Debentures Event of Default shall have occurred and be
continuing, the Common Securityholder by Act of the Common Securityholder
delivered to the Administrative Trustee, with a copy to the Property Trustee,
shall promptly appoint a successor Administrative Trustee or Administrative
Trustees and such successor Administrative Trustee or Trustees shall comply
with the applicable requirements of Section 8.11.  If no successor Relevant Trustee shall have
been so appointed by the Common Securityholder or the Capital Securityholders
and accepted appointment in the manner required by Section 8.11, the
retiring Relevant Trustee, at the expense of the Issuer Trust, or any
Securityholder who has been a Securityholder of Trust Securities for at least
six months may, on behalf of himself and all others similarly situated, may
petition any court of competent jurisdiction for the appointment of a successor
Relevant Trustee.


 


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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 12.8 and shall give notice to the Depositor.  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, in the event any Administrative
Trustee or any Delaware Trustee who is a natural person dies or becomes, in the
opinion of the Depositor, incompetent or incapacitated, the vacancy created by
such death, incompetence or incapacity may be filled by (a) the unanimous
act of the remaining Administrative Trustees if there are at least two of them
or (b) otherwise by the Depositor (with the successor in each case being a
Person who satisfies the eligibility requirement for the Administrative
Trustees or Delaware Trustee, as the case may be, set forth in Section 8.7).


 


SECTION 8.11.  Acceptance
of Appointment by Successor.  In case
of the appointment hereunder of a successor Issuer Trustee, such successor
Issuer Trustee shall execute, acknowledge and deliver to the retiring Issuer Trustee
an instrument accepting such appointment and thereupon the resignation or
removal of the retiring Issuer Trustee shall become effective to the extent
provided therein and each such successor Issuer Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on request of the Depositor or
any successor Issuer Trustee such retiring Issuer Trustee shall upon payment of
its charges, execute and deliver an instrument transferring to such successor
Issuer Trustee all the rights, powers and trusts of the retiring Issuer Trustee
and if the Property Trustee is the resigning Issuer Trustee shall duly assign,
transfer and deliver to the successor Issuer Trustee all property and money
held by such retiring Property Trustee hereunder.


 


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 solely 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 Issuer Trust.


 


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Upon request of any such
successor Relevant Trustee, the Issuer Trust shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Relevant Trustee all such rights, powers and trusts referred to in
the first or second preceding paragraph as the case may be.


 


No successor Relevant Trustee
shall accept its appointment unless at the time of such acceptance such
successor Relevant Trustee shall be qualified and eligible under this Article.


 


SECTION 8.12.  Merger,
Conversion, Consolidation or Succession to Business.  Any Person into which the Property Trustee or
the Delaware Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Relevant Trustee shall be a party, or any Person,
succeeding to all or substantially all the corporate trust business of such
Relevant Trustee, shall be the successor of such Relevant Trustee hereunder, provided,
however, that such Person shall be otherwise qualified and eligible
under this Article and shall be bound by all of the terms of this Trust
Agreement, without the execution or filing of any paper or any further act on
the part of any of the parties hereto.


 


SECTION 8.13.  Preferential
Collection of Claims Against Depositor or Issuer Trust.  In case of the pendency 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 Issuer 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 as therein expressed or by declaration or otherwise 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;


 


(c)  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 


 


72

















 


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.


 


SECTION 8.14.  Reports by
Property Trustee.  (a)  Not
later than July 15 of each year commencing with July 15, 2008, the
Property Trustee shall transmit to all Holders in accordance with Section 12.8,
and to the Depositor, a brief report dated as of the immediately preceding May 31
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 December 31 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, at the expense of the Depositor, 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 each national stock exchange or interdealer quotation
system or self-regulatory organization upon which the Capital Securities are
listed or quoted, if any, and with the Commission and the Depositor.


 


SECTION 8.15.  Reports to
the Property Trustee.  The Depositor
and the Administrative Trustees on behalf of the Issuer Trust 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.


 


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SECTION 8.16.  Evidence
of Compliance with Conditions Precedent. 
Each of the Depositor and the Administrative Trustees on behalf of the
Trust 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.  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 8.17.  Number of
Issuer Trustees.  (a)  The
number of Issuer Trustees shall be four, provided, however, that
the Holder of all of the Common Securities by written instrument may increase
or decrease the number of Administrative Trustees.  The Property Trustee and the Delaware Trustee
may be the same Person.


 


(b)  If an Issuer Trustee
ceases to hold office for any reason and the number of Administrative Trustees
is not reduced pursuant to Section 8.17(a), or if the number of Issuer
Trustees is increased pursuant to clause (a), 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 dissolve,
terminate or annul the Issuer Trust. 
Whenever a vacancy in the number of Administrative Trustees shall occur,
until such vacancy is filled by the appointment of an Administrative Trustee in
accordance with Section 8.10, the Administrative Trustees in office,
regardless of their number (and notwithstanding any other provision of this
Agreement), shall have all the powers granted to the Administrative Trustees
and shall discharge all the duties imposed upon the Administrative Trustees by
this Trust Agreement.


 


SECTION 8.18.  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),
including any registration statement or amendment thereto filed with the
Commission, or making any governmental filing.


 


(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, as set forth herein.


 


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ARTICLE IX


 


Dissolution,
Liquidation and Merger


 


SECTION 9.1.  Perpetual Existence.  The Issuer Trust shall have perpetual
existence and shall be dissolved only in accordance with this Article IX.


 


SECTION 9.2.  Early Termination.  The first to occur of any of the following
events is an “Early Termination Event”:


 


(a)  the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Holder of the Common Securities;


 


(b)  at any time after the Stock Purchase Date or earlier termination
of the Stock Purchase Contracts, the written direction of the Property Trustee
from the Depositor as the holder of the Common Securities at any time to
terminate the Issuer Trust and distribute Corresponding Assets as to
Securityholders in exchange for the Capital Securities (which direction is
optional and wholly within the discretion of the Depositor);


 


(c)  the redemption of all of the Capital Securities in accordance
with the provisions of this Trust Agreement; and


 


(d)  the entry of an order for dissolution of the Issuer Trust by
a court of competent jurisdiction.


 


If an Early Termination Event
occurs, Section 9.4 shall apply.


 


SECTION 9.3.  Dissolution.  The respective obligations and
responsibilities of the Issuer 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 Termination Event
specified in clause (a) of Section 9.2 occurs, the Issuer Trust
shall be liquidated by the Property Trustee and the Administrative Trustees as
expeditiously as the Property Trustee and the Administrative Trustees determine
to be possible by distributing, after satisfying the requirements of Section 3808(e) of
the Delaware Statutory Trust Act, to each Holder of Capital Securities of each Series a
Like Amount of Corresponding Assets as of the date of such distribution,
subject to Section 9.4(d).  If an
Early Termination Event specified in clause (d) of Section 9.2
occurs, because such Early Termination Event is also an Early 


 


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Settlement
Event, unless otherwise required by applicable law the Issuer Trust will not be
liquidated until after the Stock Purchase Date but, commencing promptly after
the Stock Purchase Date, the Issuer Trust shall be liquidated by the Property
Trustee and the Administrative Trustees as expeditiously as the Property
Trustee and the Administrative Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of the Issuer
Trust as provided by applicable law, to each Holder of Capital Securities of
each Series a Like Amount of Corresponding Assets as of the date of such
distribution, subject to Section 9.4(d). 
Notice of liquidation shall be given by the Property Trustee or the
Administrative Trustees 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 Capital Securities of each Series 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 of each
Series;


 


(ii)  state the Liquidation Date;


 


(iii)  state that from and after the Liquidation Date, the Trust
Securities of such Series 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 Corresponding Assets as of the date of
such distribution, or if Section 9.4(d) applies, a right to
receive a Liquidation Distribution; and


 


(iv)  provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates of such Series for
Corresponding Assets, or if Section 9.4(d) applies, receive a
Liquidation Distribution, as 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 Corresponding Assets to Holders, the Administrative
Trustees, 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 they shall
deem appropriate to effect the distribution of Corresponding Assets in exchange
for the Outstanding Trust Securities Certificates of the related Series.


 


(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) if the Corresponding
Assets for a Series of Capital Securities are Junior Subordinated
Debentures or shares of Preferred Stock, certificates representing a Like
Amount of Junior Subordinated Debentures or Preferred Stock (or fractional interests
in or depositary shares for Preferred Stock) will be issued to Holders of Trust
Securities Certificates of the relevant Series, upon surrender of such
certificates to the exchange agent
for exchange, and where Pledged Treasury Securities are Corresponding Assets,
Pledged Treasury Securities will be delivered by Book-Entry Transfer to Holders
upon surrender of such certificates, (iii) any Trust Securities
Certificates not so surrendered for exchange will be deemed to represent a Like
Amount of Corresponding Assets of 


 


76

















 


the applicable Series until such certificates are so surrendered
(and until such certificates are so surrendered, no payments of interest,
principal, dividends, redemption price or otherwise will be made to Holders of
Trust Securities Certificates with respect to such Corresponding Assets) and (iv) all
rights of Holders holding Trust Securities will cease, except the right of such
Holders to receive Corresponding Assets upon surrender of Trust Securities
Certificates.


 


(d)  In the event that,
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 Corresponding Assets in the manner provided
herein is determined by the Property Trustee not to be practical, or if an
Early Termination Event specified in clause (c) of Section 9.2
occurs, the Trust Property shall be liquidated, and the Issuer Trust’s affairs
wound-up, by the Property Trustee in such manner as the Administrative Trustees
determine.  In such event, upon the
winding-up of the Issuer Trust except with respect to an Early Termination
Event specified in clause (c) of Section 9.2, 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 winding-up, 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).  Holders of the Common Securities to receive
Liquidation Distributions will be subordinated to the right of Holders of
Capital Securities to receive Liquidation Distributions as provided in Section 4.3(c).


 


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 Section 9.4 or this Section 9.5.  At the request of the Holders of the Common
Securities, with the consent of the Administrative Trustees, but without the
consent of the Holders of the Capital Securities of any Series, the Property
Trustee or the Delaware Trustee, 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, however, 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) the Successor Securities of any Series are listed, or
any Successor Securities of any Series will be listed upon notification of
issuance, on any national securities exchange or other organization on which
the Capital Securities of such Series are listed, (iii) a trustee of
such successor entity possessing the same powers and duties as the Property
Trustee is appointed to hold the Trust Property, (iv) such merger, 


 


77

















 


consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the
Capital Securities of any Series (including any Successor Securities) to
be downgraded by any nationally recognized statistical rating organization, (v) such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and privileges of the holders
of the Capital Securities of any Series (including any Successor
Securities) in any material respect, (vi) such successor entity has a
purpose substantially identical to that of the Issuer Trust, (vii) prior
to such merger, consolidation, amalgamation, replacement, conveyance, transfer
or lease, there has
been delivered to the Property Trustee 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 of any Series (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 1940 Act, (viii) there has
been delivered to the Issuer Trustees an Opinion of Counsel experienced in such
matters that such merger, consolidation, amalgamation, conveyance, transfer or
lease will not adversely affect the Issuer Trust’s status as one or more
grantor trusts or agency arrangements or cause the Issuer Trust or the
successor entity to be classified as an association or a publicly traded
partnership taxable as a corporation for United States Federal income tax
purposes, (ix) the Depositor or its permitted transferee owns all of the
Common Securities of such successor entity and the Depositor guarantees the
obligations of such successor entity under the Successor Securities at least to
the extent provided by the Guarantee Agreement and (x) all amounts payable
to the Issuer Trustees under Section 8.6 have been paid.  The Issuer Trust may 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 even if such
consolidation, amalgamation, merger, replacement, conveyance, transfer or lease
would otherwise not be permitted under (viii) of the preceding sentence.


 


ARTICLE X


 


Qualifying Treasury
Securities


 


SECTION 10.1.  Qualifying
Treasury Securities.  (a)  The
Administrative Trustees or any one of them shall, for each March 15, June 15,
September 15 and December 15, commencing on June 15, 2008 and
ending on the Stock Purchase Date or the earlier termination of the Stock
Purchase Contracts, or if any such day is not a Business Day, the next Business
Day (each, a “Reference Date”) identify:


 


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(i)  the 13-week U.S. Treasury bill that matures at least one and
not more than six Business Days prior to that Reference Date, or


 


(ii)  if no 13-week U.S. Treasury bill that matures at least one
and not more than six Business Days prior to that Reference Date is or is
scheduled to be outstanding on the immediately preceding Reference Date, the
26-week U.S. Treasury bill that matures at least one and not more than six
Business Days prior to that Reference Date, or


 


(iii)  if neither of such U.S. Treasury bills is or is scheduled
to be outstanding on the immediately preceding Reference Date, any other U.S.
Treasury security (which may be a zero coupon U.S. Treasury security) that is
outstanding on the immediately preceding Reference Date, is highly liquid and
matures at least one Business Day prior to such Reference Date;  provided, however,
that any U.S. Treasury security identified pursuant to this clause (iii) shall
be selected in a manner intended to minimize the cash value of the security
selected.


 


(b)  The Administrative Trustees
shall use commercially reasonable efforts to identify the security meeting the
foregoing criteria for each Reference Date promptly after the Department of the
Treasury makes the schedule for upcoming auctions of U.S. Treasury securities
publicly available and shall, to the extent that a security previously
identified with respect to any Reference Date is no longer expected to be
outstanding on the immediately preceding Reference Date, identify another
security meeting the foregoing criteria
for such Reference Date.  The security
most recently identified by the Administrative Trustees or any one of them with
respect to any Reference Date shall be the “Qualifying Treasury Security” with respect to the period
from and including its date of issuance (or if later, the date of maturity of
the Qualifying Treasury Security with respect to the immediately preceding
Reference Date) to but excluding its date of maturity, and the Administrative
Trustees’ identification of a security as a Qualifying Treasury Security for
such period shall be final and binding for all purposes absent manifest
error.  The Administrative Trustees or
any one of them shall give (or cause to be given) prompt written notice to the
Company, the Collateral Agent, the Custodial Agent and the Property Trustee of
each determination made pursuant to this Section 10.1.  The Qualifying Treasury Security for the
period from and including the date hereof to but excluding its date of maturity
will be the US Treasury bill issued December 13, 2007 and due on June 12, 2008, CUSIP No. 912795E80.


 


ARTICLE XI


 


Other APEX
Related Provisions


 


SECTION 11.1.  Agreed Tax
Treatment.  Each Holder of Capital
Securities agrees, by acceptance of Capital Securities, and each Owner agrees,
by acceptance of a beneficial interest in Capital Securities, to treat for all
United States Federal income tax purposes (i) the Issuer Trust as one or
more grantor trusts or agency arrangements, (ii) itself as the owner of
the Corresponding Assets for the related Series of Capital Securities, (iii) in
the case of Normal APEX the fair market value of the $1,000 principal amount of
Junior Subordinated Debentures corresponding to one Normal APEX as $1,000 and
the 


 


79

















 


fair market
value of 1/100th fractional interest in a Stock Purchase Contract corresponding
to one Normal APEX as $0 at the time of initial purchase, (iv) the Junior
Subordinated Debentures as indebtedness of the Depositor, (v) the stated
interest on the Junior Subordinated Debentures as ordinary interest income that
is includible in the Holder’s or Owner’s gross income at the time the interest
is paid or accrued in accordance with the Holder’s or Owner’s regular method of
tax accounting, and (vi) the Contract payments on the Stock Purchase
Contracts as ordinary income that is includable in the Holder’s or Owner’s
gross income at the time the payment is made or accrued in accordance with the
Holder’s or Owner’s regular method of tax accounting, and otherwise to treat
the Junior Subordinated Debentures as described in the Prospectus.


 


ARTICLE XII


 


Miscellaneous
Provisions


 


SECTION 12.1.  Limitation
of Rights of Holders.  The death,
dissolution, bankruptcy or incapacity of any Person having an interest,
beneficial or otherwise, in Trust Securities shall not operate to terminate
this Trust Agreement nor dissolve, terminate or annul the Issuer Trust, 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 12.2.  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,
the Property Trustee or the Delaware Trustee, (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, (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 a partnership for United States Federal income tax purposes at
all times that any Trust Securities are outstanding, to ensure that the Issuer
Trust will not be required to register as an “investment company” under the
1940 Act or to ensure the treatment of the Capital Securities as Tier 1
regulatory capital under the prevailing Federal Reserve Board rules and
regulations, (iii) to provide that Capital Securities Certificates may be
executed by an Administrative Trustee by facsimile signature instead of manual
signature, in which case such amendment(s) shall also provide for the
appointment by the Depositor of an authentication agent, the fees and expenses
of which will be paid by the Depositor, a form of authentication certificate,
and provisions to the effect that Capital Securities Certificates that have
been executed by an Administrative Trustee by facsimile signature shall not be
entitled to any benefit under the Trust 


 


80

















 


Agreement or be valid or
obligatory for any purpose unless the certificate of authentication thereon has
been executed by the authentication agent by manual signature, (iv) require
that holders that are not United States Persons for U.S. federal income tax
purposes irrevocably appoint a United States Person to exercise any voting
rights to ensure that the Trust will not be treated as a foreign trust for U.S.
federal income tax purposes or (v) to conform the terms of this Trust
Agreement to the description of this Trust Agreement and the Trust Securities
in the Prospectus; 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, the Property Trustee or the
Delaware Trustee; provided, further, that in the case of
clause (iv), the Depositor shall deliver to the Property Trustee an
Officers’ Certificate and an Opinion of Counsel (who may be counsel to the
Depositor or the Issuer Trust), in each case confirming that such amendment has
the effect of conforming the terms of this Trust Agreement to the descriptions
of this Trust Agreement and the Trust Securities in the Prospectus.  Any such amendment shall become effective
when notice is given to the Property Trustee and the Holders of the Capital
Securities.


 


(b)  Prior to the issuance
of Definitive Capital Securities Certificates, the Depositor and the Issuer
Trustees shall enter into such amendments or supplements to this Agreement as
are necessary to give effect to Section 5.13 and 5.14.


 


(c)  Except as provided in
Section 12.2(d), any provision of this Trust Agreement may be amended by
the Administrative Trustees 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 Outstanding Capital Securities of each Affected Series, and (ii) receipt
by the Administrative Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Issuer Trustees or the
Administrative Trustees in accordance with such amendment will not affect the
Issuer Trust’s status as one or more grantor trusts or agency arrangements or
cause the Issuer Trust to be classified as an association or publicly traded
partnership taxable as a corporation for United States Federal income tax
purposes or affect the Issuer Trust’s exemption from status as an “investment
company” under the 1940 Act.


 


(d)  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), 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, this Section 12.2(d) may not be
amended.


 


(e)  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 1940 Act or to be taxable as a corporation or to be
classified as other than as one or more grantor trusts or agency arrangements
for United States Federal income tax 


 


81

















 


purposes. 
In particular but not in limitation of the foregoing, no Issuer Trustee
shall enter into or consent
to any amendment to this Trust Agreement that would cause the Issuer Trust to
be classified as an association or a publicly traded partnership taxable as a
corporation for United States Federal income tax purposes.


 


(f)  Notwithstanding
anything in this Trust Agreement to the contrary, without the prior written
consent of the Property Trustee, this Trust Agreement may not be amended in a manner
that imposes any additional obligation on the Property Trustee or that
adversely affects the Property Trustee.


 


(g)  Notwithstanding
anything in this Trust Agreement to the contrary, without the prior written
consent of the Delaware Trustee, this Trust Agreement may not be amended in a
manner that imposes any additional obligation on the Delaware Trustee or that
adversely affects the Delaware Trustee.


 


(h)  Notwithstanding
anything in this Trust Agreement to the contrary, without the consent of the Securities
Registrar and the Paying Agent, this Trust Agreement may not be amended in a
manner that imposes any additional obligation on the Securities Registrar or
the Paying Agent or that adversely affects the Securities Registrar or the
Paying Agent.


 


(i)  In the event that any
amendment to this Trust Agreement is made, the Administrative Trustees shall
promptly provide to the Depositor, the Property Trustee and the Delaware
Trustee a copy of such amendment.


 


(j)  Notwithstanding
anything in this Trust Agreement to the contrary, without the consent of the
Depositor, this Trust Agreement may not be amended in a manner that imposes any
additional obligation on the Depositor.


 


(k)  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 and the Delaware 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 12.3.  Separability
Clause.  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 12.4.  Governing
Law.  THIS TRUST AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE ISSUER TRUST 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 REGARD TO CONFLICT OF LAWS PRINCIPLES.  THE PROVISIONS OF SECTIONS 3540 AND 3561 OF
TITLE 12 THE DELAWARE CODE SHALL NOT APPLY TO THE ISSUER TRUST.


 


82

















 


SECTION 12.5.  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, 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 12.6.  Successors
and Assigns.  This Trust Agreement
shall be binding upon and shall inure to the benefit of any successor to the
Depositor, the Trust or the Relevant Trustee, including any successor by
operation of law.  Except in connection
with any consolidation, merger or sale involving the Depositor that is
permitted under Article VIII of the Original 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 12.7.  Effect of
Headings and Table of Contents.  The Article and
Section headings are for convenience only and shall not affect the
construction of this Trust Agreement.


 


SECTION 12.8.  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,
the Depositor or the Administrative Trustees 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, One Lincoln Street, Boston, Massachusetts 02111, Attention:
Secretary, facsimile no. (617) 664-4006. 
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.


 


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 or the Administrative Trustees shall be given or
served in writing by deposit thereof, first-class postage prepaid, in the
United States mail, or hand delivery or facsimile transmission, in each case,
addressed to such Person as follows: (a) with respect to the Property
Trustee, to U.S. Bank National Association, Corporate Trust Services, 100 Wall
Street, Suite 1600, New York, New York 10005, (b) with respect to the
Delaware Trustee, to U.S. Bank Trust National Association, 300 Delaware Avenue,
9th floor, Wilmington, Delaware, 19801, Attention: Earl W. Dennison and (c) with
respect to the Administrative Trustees, to them at c/o State Street
Corporation, 2 World Financial Center, 225 Liberty Street., New York, New York
10281, marked “Attention: Administrative Trustees of State Street Capital Trust
III”.  Such notice, demand or other
communication to or upon the Issuer Trust, the Delaware Trustee or the 


 


83

















 


Property
Trustee shall be deemed to have been sufficiently given or made, for all
purposes, upon hand delivery, mailing or transmission.


 


SECTION 12.9.  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.  In the event that the Depositor
takes action in violation of this Section 12.9, 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.  The
provisions of this Section 12.9 shall survive the termination of this
Trust Agreement.


 


SECTION 12.10.  Trust
Indenture Act; Conflict with Trust Indenture Act.  (a)  This Trust Agreement is subject to
the provisions of the Trust Indenture Act that are required or deemed to be
part of this Trust Agreement and shall, to the extent applicable, be governed
by such provisions.


 


(b)  The Property Trustee
shall be the only Issuer Trustee that is a trustee for the purposes of the
Trust Indenture Act.


 


(c)  If any provision
hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act that is required under such Act to be a part of and govern this Trust
Agreement, the latter provision shall control. 
If any provision of this Trust Agreement modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, the
latter provision shall be deemed to apply to this Trust Agreement as so
modified or to be excluded, as the case may be.


 


(d)  The application of
the Trust Indenture Act to this Trust Agreement shall not affect the nature of
the Trust Securities as equity securities representing undivided beneficial
interests in the assets of the Issuer Trust.


 


SECTION 12.11.  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 


 


84

















 


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 TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND
PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS
BETWEEN THE TRUST AND SUCH HOLDER AND SUCH OTHERS.


 


85

















 


IN WITNESS WHEREOF, the parties
hereto have executed this Trust Agreement as of the date first above written.


 


 


	
   

  	
  STATE
  STREET CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
    Name:

  
	
   

  	
    Title:

  
	
   

  	
   

  
	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION, as

  Property Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
    Name:

  
	
   

  	
    Title:

  
	
   

  	
   

  
	
   

  	
  U.S.
  BANK TRUST NATIONAL

  ASSOCIATION, as Delaware Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
    Name:

  
	
   

  	
    Title:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
     Sue Horn

  
	
   

  	
  as Administrative Trustee

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
            Lynn
  Jimenez

  
	
   

  	
  as Administrative Trustee

  
												



 


86
















 


EXHIBIT A


 


FORM OF CAPITAL APEX CERTIFICATE


 


{For inclusion in Global Certificates only – THIS CERTIFICATE
IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE TRUST AGREEMENT HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE “DEPOSITARY”)
OR ITS NOMINEE.  THIS CERTIFICATE IS
EXCHANGEABLE FOR 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 NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF
THIS CERTIFICATE 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) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.


 


UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.}


 


	
  No.

  	
   

  	
   

  	
   

  	
  Number of Capital APEX:

  	
   

  
	
   

  	
   

  	
  CUSIP
  No. 85748B AD5

  



 


STATE STREET CAPITAL TRUST III


 


CAPITAL APEX


 


This Capital
APEX Certificate certifies that {         
} is the registered Holder of the number of Capital APEX set forth
above {for inclusion in Global Certificates
only - or such other number of Capital APEX reflected in the
Schedule of Increases and Decreases in the Global Certificate attached
hereto}.  Each Capital APEX represents
a beneficial interest in State Street Capital Trust III (the “Issuer Trust”), having a Liquidation Amount of $1,000.  The Capital APEX 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 5.4 of the Trust Agreement (as defined
below).  The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the Capital
APEX are set forth in, and this certificate and the Capital
APEX 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 January 25, 2008, as the same may be amended and
restated from time to time (the “Trust Agreement”), including the
designation of the terms of 


 


A-1

















 


the Capital
APEX as set forth therein.  The
Holder is entitled to the benefits of the Guarantee Agreement entered into by
the Depositor and U.S. Bank National Association, as Guarantee Trustee, dated
as of January 25, 2008 (the “Guarantee Agreement”).  All capitalized terms used herein that are
defined in the Trust Agreement have the meaning set forth therein.


 


Section 5.13(d) of
the Trust Agreement provides for the procedures pursuant to which Holders of
Capital APEX and Stripped APEX may exchange them for Normal
APEX and Qualifying Treasury Securities and Section 5.14(f) of
the Trust Agreement provides for the procedures pursuant to which Holders of
Capital APEX may elect to dispose of Capital APEX in the event a
Remarketing is Successful.  The forms of
Recombination Notice and Request and Notice of Contingent Disposition Election
required to be delivered in connection therewith are printed on the reverse
hereof.


 


A copy of each of the Trust
Agreement and the Guarantee Agreement is available for inspection at the
offices of the Property Trustee.


 


Upon receipt of this certificate,
the Holder is bound by the Trust Agreement and is entitled to the benefits
thereof.


 


IN WITNESS WHEREOF, the Issuer
Trust acting through one of its Administrative Trustees has executed this
Capital APEX Certificate.


 


	
   

  	
  STATE STREET
  CAPITAL TRUST III,

  acting through one of its Administrative Trustees

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  



 


Date:


 


A-2

















 


ABBREVIATIONS


 


The following abbreviations,
when used in the inscription on the face of this instrument, shall be construed
as though they were written out in full according to applicable laws or
regulations:


 


	
  TEN COM:

  	
   

  	
  as tenants in common

  
	
  UNIF GIFT MIN ACT:

  	
   

  	
                                 Custodian
                     
  (cust)(minor) Under

  
	
   

  	
   

  	
  Uniform Gifts to Minors Act of                  

  
	
  TENANT:

  	
   

  	
  as tenants by the entireties

  
	
  JT TEN:

  	
   

  	
  as joint tenants with right of survivorship and not as tenants in
  common

  



 


Additional abbreviations may
also be used though not in the above list.


 


FOR VALUE RECEIVED, the
undersigned hereby sell(s), assign(s) and transfer(s) unto


 


(Please insert Social Security or Taxpayer I.D.

or other Identifying Number of Assignee)


 


(Please print
or type name and address including Postal Zip Code of Assignee)


 


the within Capital
APEX Certificates and all rights thereunder, hereby irrevocably
constituting and appointing attorney                       ,
to transfer said Capital APEX Certificates on the books of State Street Capital Trust III,
with full power of substitution in the premises.


 


 


	
  Dated:

  	
   

  
	
   

  	
  Signature

  NOTICE: The signature to this assignment
  must correspond with the name as it appears upon the face of the within
  Capital APEX Certificates in every particular, without alteration or
  enlargement or any change whatsoever.

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  	
   

  
				



 


A-3

















 


FORM OF RECOMBINATION NOTICE AND REQUEST


 


U.S. Bank National Association


Corporate Trust Services


Attention: Earl W. Dennison
Jr., Fax: (617) 603-6667


 


Re:          Stripped APEX and Capital APEX STATE STREET CAPITAL

TRUST III


 


The undersigned Holder hereby
notifies you pursuant to Section 5.13(d) of the Amended and Restated
Trust Agreement, dated as of January 25, 2008, of State Street Capital
Trust III (the “Trust Agreement”), among State Street Corporation, as Depositor,
U.S. Bank National Association, as Property Trustee, U.S. Bank Trust National
Association, as Delaware Trustee, the Administrative Trustees (as named
therein) and the several Holders of the Trust Securities, and Section 6.03(a) of
the Collateral Agreement that the Holder:


 


(i) is transferring $                   
Liquidation Amount of Stripped APEX and Capital APEX in connection
with an Exchange of such Stripped APEX and Capital APEX for a Like
Amount of Normal APEX and Qualifying Treasury Securities,


 


(ii) hereby requests the
Collateral Agent to release from the Pledge and deliver to the Holder Pledged
Treasury Securities in a principal amount equal to such Liquidation Amount, and


 


(iii) hereby requests the
delivery to the Holder of such Normal APEX of a Like Amount.


 


All capitalized terms used
herein that are defined in the Trust Agreement have the meaning set forth
therein.  The undersigned Holder has paid
all applicable fees and expenses relating to such Exchange.


 


	
  Date:

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature Guarantee:

  	
   

  
	
  Please print name and address

  of Registered Holder:

  Name

  Address

  	
   

  Social Security or other Taxpayer Identification

  Number, if any

  



 


A-4

















 


FORM OF NOTICE OF CONTINGENT DISPOSITION ELECTION


 


U.S. Bank National Association


Corporate Trust Services


Attention: Earl W. Dennison
Jr., Fax: (617) 603-6667


 


Re:          Normal APEX of STATE STREET CAPITAL TRUST III


 


The undersigned Holder hereby
notifies you pursuant to Section 5.14(f) of the Amended and Restated
Trust Agreement, dated as of January 25, 2008, of State Street Capital
Trust III (the “Trust Agreement”), among State Street Corporation, as
Depositor, U.S. Bank National Association, as Property Trustee, U.S. Bank Trust
National Association, as Delaware Trustee, the Administrative Trustees (as
named therein) and the several Holders of the Trust Securities, and Section 8.03
of the Collateral Agreement, that the Holder:


 


(i) is transferring                 
Capital APEX to the Securities Registrar, and


 


(ii) hereby requests the
payment to the Holder, if the upcoming Remarketing is Successful, of an amount
in cash for each such Capital APEX equal to the proceeds of the sale of
$1,000 principal amount of Junior Subordinated Debentures, it being understood
that if such Remarketing is not Successful, this Notice shall be disregarded.


 


All capitalized terms used
herein that are defined in the Trust Agreement have the meaning set forth
therein.  The undersigned Holder has paid
all applicable fees and expenses relating to such Contingent Exchange Election.


 


	
  Date:

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature Guarantee:

  	
   

  
	
  Please print name and address

  of Registered Holder:

  Name

  Address

  	
   

  Social Security or other Taxpayer Identification

  Number, if any

  



 


A-5

















 


{TO BE ATTACHED TO GLOBAL CERTIFICATES}

SCHEDULE OF INCREASES AND DECREASES IN GLOBAL CERTIFICATE



The following increases or decreases in this Global Certificate have been made:


 


	
  Amount of increase in

  Number of Capital

  APEX evidenced by this

  Global Certificate

  	
   

  	
  Amount of decrease in

  Number of Capital

  APEX evidenced by this

  Global Certificate

  	
   

  	
  Number of Capital

  APEX evidenced by this

  Global Certificate

  following such decrease

  or increase

  	
   

  	
  Signature of authorized

  signatory of Securities

  Registrar

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-6

















 


EXHIBIT B


 


(FORM OF TRUST COMMON SECURITIES CERTIFICATE)


 


TO THE FULLEST EXTENT PERMITTED
BY LAW, OTHER THAN A TRANSFER IN CONNECTION WITH A CONSOLIDATION OR MERGER OF
STATE STREET CORPORATION INTO ANOTHER PERSON, OR ANY CONVEYANCE, TRANSFER OR
LEASE BY STATE STREET CORPORATION OF ITS PROPERTIES AND ASSETS SUBSTANTIALLY AS
AN ENTIRETY TO ANY PERSON PURSUANT TO SECTION 8.1 OF THE JUNIOR
SUBORDINATED INDENTURE, DATED AS OF DECEMBER 15, 1996, BETWEEN STATE
STREET CORPORATION AND THE BANK OF NEW YORK (AS SUCCESSOR IN INTEREST TO J.P.
MORGAN CHASE & CO. (AS SUCCESSOR IN INTEREST TO BANK ONE TRUST
COMPANY, N.A. (AS SUCCESSOR IN INTEREST TO THE FIRST NATIONAL BANK OF
CHICAGO))), AS AMENDED AND SUPPLEMENTED BY THE SUPPLEMENTAL INDENTURE, DATED AS
OF JANUARY 25, 2008, BETWEEN STATE STREET CORPORATION AND U.S. BANK NATIONAL
ASSOCIATION (AS SUCCESSOR IN INTEREST TO THE BANK OF NEW YORK), AS TRUSTEE, AS
AMENDED OR SUPPLEMENTED FROM TIME TO TIME, ANY ATTEMPTED TRANSFER OF THE COMMON
TRUST SECURITIES EVIDENCED HEREBY OTHER THAN TO A DIRECT OR INDIRECT SUBSIDIARY
OF STATE STREET CORPORATION SHALL BE VOID.


 


100 Trust Common Securities


 


This Trust Common Securities
Certificate certifies that
{                    }
is the registered Holder of 100 Common Trust Securities.  Each Common Trust Security represents a
beneficial interest in State Street Capital Trust III (the “Issuer Trust”), having a
Liquidation Amount of $1,000.  The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Trust Securities are set forth in, and this
certificate and the Common Trust 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 January 25,
2008, as the same may be amended and restated from time to time (the “Trust Agreement”), including the
designation of the terms of the Common Trust Securities as set forth
therein.  All capitalized terms used
herein that are defined in the Trust Agreement have the meaning set forth
therein.


 


IN WITNESS WHEREOF, the Issuer
Trust acting through one of its Administrative Trustees has executed this
Common Trust Securities Certificate.


 


	
   

  	
  State
  Street Capital Trust III, acting through one

  of its Administrative Trustees

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  



 


Date:


 


B-1

















 


EXHIBIT C


 


FORM OF NORMAL APEX CERTIFICATE


 


{For inclusion in Global Certificates only – THIS CERTIFICATE
IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE TRUST AGREEMENT HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE “DEPOSITARY”)
OR ITS NOMINEE.  THIS CERTIFICATE IS
EXCHANGEABLE FOR 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 NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF
THIS CERTIFICATE 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) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.


 


UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.}


 


	
  No.

  	
   

  	
   

  	
   

  	
  Number of Normal APEX:

  	
   

  
	
   

  	
   

  	
  CUSIP
  No. 85748B AB9

  



 


State Street Capital Trust III


 


NORMAL APEX


 


This Normal
APEX Certificate certifies that {         
} is the registered Holder of the number of Normal APEX set forth
above {for inclusion in Global Certificates
only - or such other number of Normal APEX reflected in the
Schedule of Increases and Decreases in the Global Certificate attached
hereto}.  Each Normal
APEX represents a beneficial interest in State Street Capital Trust III (the “Issuer Trust”), having a Liquidation Amount
of $1,000.  The Normal APEX 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 5.4 of the Trust
Agreement (as defined below).  The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Normal APEX are set forth in, and this certificate and
the Normal APEX 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 January 25, 2008, as the same may be
amended and restated from time to time (the “Trust
Agreement”), including the designation of the terms 


 


C-1

















 


of the Normal
APEX as set forth therein.  The
Holder is entitled to the benefits of the Guarantee Agreement entered into by
the Depositor and U.S. Bank National Association, as Guarantee Trustee, dated
as of January 25, 2008 (the “Guarantee
Agreement”).  All capitalized
terms used herein that are defined in the Trust Agreement have the meaning set
forth therein.


 


Section 5.13(b) of
the Trust Agreement provides for the procedures pursuant to which Holders of
Normal APEX may exchange Normal APEX and Qualifying Treasury
Securities for Stripped APEX and Capital APEX and Section 5.14(d) of
the Trust Agreement provides for the procedures pursuant to which Holders of Normal
APEX may elect to exchange Normal APEX and Qualifying Treasury
Securities for Stripped APEX and Capital APEX in the event a
Remarketing is Successful.  The forms of
Stripping Notice and Request and Notice of Contingent Exchange Election
required to be delivered in connection therewith are printed on the reverse
hereof.


 


A copy of each of the Trust
Agreement and the Guarantee Agreement is available for inspection at the
offices of the Property Trustee.


 


Upon receipt of this
certificate, the Holder is bound by the Trust Agreement and is entitled to the
benefits thereof.


 


IN WITNESS WHEREOF, the Issuer
Trust acting through one of its Administrative Trustees has executed this
Normal APEX Certificate.


 


	
   

  	
  STATE STREET CAPITAL TRUST III,

  acting through one of its Administrative

  Trustees

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
   

  



Date:


 


C-2

















 


ABBREVIATIONS


 


The following abbreviations,
when used in the inscription on the face of this instrument, shall be construed
as though they were written out in full according to applicable laws or
regulations:


 


	
  TEN COM:

  	
   

  	
  as tenants in common

  
	
  UNIF GIFT MIN ACT:

  	
   

  	
                             Custodian
                        
  (cust)(minor) Under

  
	
   

  	
   

  	
  Uniform Gifts to Minors Act of

  
	
  TENANT:

  	
   

  	
  as tenants by the entireties

  
	
  JT TEN:

  	
   

  	
  as joint tenants with right of survivorship and not as tenants in
  common

  
	
   

  	
   

  	
   

  



Additional abbreviations may
also be used though not in the above list.


 


FOR VALUE RECEIVED, the
undersigned hereby sell(s), assign(s) and transfer(s) unto


 


(Please insert Social Security or Taxpayer I.D.

or other Identifying Number of Assignee)


 


(Please print
or type name and address including Postal Zip Code of Assignee)


 


the within Normal
APEX Certificates and all rights thereunder, hereby irrevocably constituting
and appointing attorney                           ,
to transfer said Normal APEX Certificates on the books of State Street Capital Trust III,
with full power of substitution in the premises.


 


	
  Dated:

  	
   

  
	
   

  	
  Signature 

  NOTICE: The signature to this assignment must correspond with the name as it
  appears upon the face of the within Normal APEX Certificates in every
  particular, without alteration or enlargement or any change whatsoever.

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  	
   

  
				



 


C-3

















 


FORM OF STRIPPING NOTICE AND REQUEST


 


U.S. Bank National Association


Corporate Trust Services


Attention: Earl W. Dennison
Jr., Fax: (617) 603-6667


 


Re:          Normal APEX of State Street Capital Trust III


 


The undersigned Holder hereby
notifies you pursuant to Section 5.13(b) of the Amended and Restated
Trust Agreement, dated as of January 25, 2008, of State Street Capital
Trust III (the “Trust Agreement”),
among State Street Corporation, as Depositor, U.S. Bank National Association,
as Property Trustee, U.S. Bank Trust National Association, as Delaware Trustee,
the Administrative Trustees (as named therein) and the several Holders of the
Trust Securities, and Section 6.02 of the Collateral Agreement, that the
Holder:


 


(i) is depositing the
appropriate Qualifying Treasury Securities with U.S. Bank National Association,
as Collateral Agent, for deposit in the Collateral Account,


 


(ii) is transferring the
related Normal APEX to the Securities Registrar in connection with an
Exchange of such Normal APEX and Qualifying Treasury Securities for a Like
Amount of Stripped APEX and Capital APEX, and


 


(iii) hereby requests the
delivery to the Holder of such Stripped APEX and Capital APEX.


 


All capitalized terms used
herein that are defined in the Trust Agreement have the meaning set forth
therein.  The undersigned Holder has paid
all applicable fees and expenses relating to such Exchange.


 


	
  Date:

  	
   

  
	
   

  	
  Signature Guarantee:

  	
   

  
	
   

  	
   

  
	
  Please print name and address

  of Registered Holder:

  Name

  Address

  	
   

  Social Security or other Taxpayer Identification

  Number, if any

  



 


C-4

















 


FORM OF NOTICE OF CONTINGENT EXCHANGE ELECTION


 


U.S. Bank National Association


Corporate Trust Services


Attention: Earl W. Dennison
Jr., Fax: (617) 603-6667


 


Re:          Normal APEX of State Street Capital Trust III


 


The undersigned Holder hereby
notifies you pursuant to Section 5.14(d) of the Amended and Restated
Trust Agreement, dated as of January 25, 2008, of State Street Capital
Trust III (the “Trust Agreement”), among State Street Corporation, as
Depositor, U.S. Bank National Association, as Property Trustee, U.S. Bank Trust
National Association, as Delaware Trustee, the Administrative Trustees (as
named therein) and the several Holders of the Trust Securities, and Section 8.02
of the Collateral Agreement, that the Holder:


 


(i) is depositing the
appropriate Qualifying Treasury Securities with U.S. Bank National Association,
as Collateral Agent, for deposit in the Collateral Account,


 


(ii) is transferring the
related Normal APEX to the Securities Registrar in connection with a
Contingent Exchange Election of such Normal APEX and Qualifying Treasury
Securities for a Like Amount of Stripped APEX and Capital APEX, and


 


(iii) hereby requests the
delivery to the Holder of such Stripped APEX and Capital APEX if the
upcoming Remarketing is Successful, it being understood that if such
Remarketing is not Successful, this Notice shall be disregarded and the
Collateral Agent shall return such Qualifying Treasury Securities to the Holder
promptly after the Remarketing.


 


All capitalized terms used
herein that are defined in the Trust Agreement have the meaning set forth
therein.  The undersigned Holder has paid
all applicable fees and expenses relating to such Contingent Exchange Election.


 


	
  Date:

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature Guarantee:

  	
   

  
	
  Please print name and address

  of Registered Holder:

  Name

  Address

  	
   

  Social Security or other Taxpayer Identification

  Number, if any

  



 


C-5

















 


{TO BE ATTACHED TO GLOBAL CERTIFICATES}



SCHEDULE OF INCREASES AND DECREASES IN GLOBAL CERTIFICATE



The following increases or decreases in this Global Certificate have been made:


 


	
  Amount of increase in

  Number of Normal

  APEX evidenced by

  this 

  Global Certificate

  	
   

  	
  Amount of decrease in Number

  of Normal

  APEX evidenced by this Global

  Certificate

  	
   

  	
  Number of Normal

  APEX evidenced by

  this Global Certificate

  following such decrease

  or increase

  	
   

  	
  Signature of

  authorized signatory

  of Securities Registrar

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


C-6

















 


EXHIBIT D


 


FORM OF STRIPPED APEX CERTIFICATE


 


{For inclusion in Global Certificates only – THIS CERTIFICATE
IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE TRUST AGREEMENT HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE “DEPOSITARY”)
OR ITS NOMINEE.  THIS CERTIFICATE IS
EXCHANGEABLE FOR 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 NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF
THIS CERTIFICATE 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) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.


 


UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.}


 


	
  No.

  	
   

  	
   

  	
   

  	
  Number of Stripped APEX:

  	
   

  
	
   

  	
   

  	
  CUSIP
  No. 85748B AC7

  



 


STATE STREET CAPITAL TRUST III



STRIPPED APEX


 


This Stripped APEX Certificate
certifies that {          } is the
registered Holder of the number of Stripped APEX set forth above {for inclusion in Global Certificates only
- or such other number of Stripped APEX reflected in the Schedule of
Increases and Decreases in the Global Certificate attached hereto}.  Each Stripped APEX represents a
beneficial interest in State Street Capital Trust III (the “Issuer Trust”), having a Liquidation Amount of $1,000.  The Stripped APEX 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 5.4 of the Trust Agreement (as defined
below).  The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Stripped APEX are set forth in, and this certificate and the Stripped
APEX 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 January 25, 2008, as the same may be amended and
restated from time to time (the “Trust Agreement”), including the
designation of the terms of 


 


D-1

















 


the Stripped
APEX as set forth therein.  The
Holder is entitled to the benefits of the Guarantee Agreement entered into by
the Depositor and U.S. Bank National Association, as Guarantee Trustee, dated
as of January 25, 2008 (the “Guarantee
Agreement”).  All capitalized
terms used herein that are defined in the Trust Agreement have the meaning set
forth therein.


 


Section 5.13(d) of
the Trust Agreement provides for the procedures pursuant to which Holders of
Capital APEX and Stripped APEX may exchange them for Normal APEX and
Qualifying Treasury Securities.  The form
of Recombination Notice required to be delivered in connection therewith is
printed on the reverse hereof.


 


A copy of each of the Trust
Agreement and the Guarantee Agreement is available for inspection at the
offices of the Property Trustee.


 


Upon receipt of this
certificate, the Holder is bound by the Trust Agreement and is entitled to the
benefits thereof.


 


IN WITNESS WHEREOF, the Issuer
Trust acting through one of its Administrative Trustees has executed this
Stripped APEX Certificate.


 


	
   

  	
  STATE STREET CAPITAL TRUST III,

  acting through one of its Administrative

  Trustees

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
   

  



Date:


 


D-2

















 


ABBREVIATIONS


 


The following abbreviations,
when used in the inscription on the face of this instrument, shall be construed
as though they were written out in full according to applicable laws or
regulations:


 


	
  TEN COM:

  	
   

  	
  as tenants in common

  
	
  UNIF GIFT MIN ACT:

  	
   

  	
                               Custodian
                           
  (cust)(minor) Under

  
	
   

  	
   

  	
  Uniform Gifts to Minors Act of

  
	
  TENANT:

  	
   

  	
  as tenants by the entireties

  
	
  JT TEN:

  	
   

  	
  as joint tenants with right of survivorship and not as tenants in
  common

  



 


FOR VALUE RECEIVED, the
undersigned hereby sell(s), assign(s) and transfer(s) unto


 


(Please insert Social Security or Taxpayer I.D.

or other Identifying Number of Assignee)


 


(Please print
or type name and address including Postal Zip Code of Assignee)


 


the within Stripped
APEX Certificates and all rights thereunder, hereby irrevocably
constituting and appointing attorney                     ,
to transfer said Stripped APEX Certificates on the books of State Street Capital Trust III,
with full power of substitution in the premises.


 


 


	
  Dated:

  	
   

  
	
   

  	
  Signature

  NOTICE: The signature to this assignment must correspond with the name as it
  appears upon the face of the within Stripped APEX Certificates in every
  particular, without alteration or enlargement or any change whatsoever.

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  	
   

  
				



 


D-3

















 


FORM OF RECOMBINATION NOTICE AND REQUEST


 


U.S. Bank National Association


Corporate Trust Services


Attention: Earl W. Dennison
Jr., Fax: (617) 603-6667


 


Re:          Stripped APEX and Capital APEX of STATE STREET
CAPITAL TRUST III


 


The undersigned Holder hereby
notifies you pursuant to Section 5.13(d) of the Amended and Restated
Trust Agreement, dated as of January 25, 2008, of State Street Capital
Trust III (the “Trust Agreement”),
among State Street Corporation, as Depositor, U.S. Bank National Association,
as Property Trustee, U.S. Bank Trust National Association, as Delaware Trustee,
the Administrative Trustees (as named therein) and the several Holders of the
Trust Securities, and Section 6.03 of the Collateral Agreement, that the Holder:


 


(i) is transferring $                  
Liquidation Amount of Stripped APEX and Capital APEX in connection
with an Exchange of such Stripped APEX and Capital APEX for a Like
Amount of Normal APEX and Qualifying Treasury Securities,


 


(ii) hereby requests the
Collateral Agent to release from the Pledge and deliver to the Holder Pledged
Treasury Securities in a principal amount equal to such Liquidation Amount, and


 


(iii) hereby requests the
delivery to the Holder of such Normal APEX of a Like Amount.


 


All capitalized terms used
herein that are defined in the Trust Agreement have the meaning set forth
therein.  The undersigned Holder has paid
all applicable fees and expenses relating to such Exchange.


 


	
  Date:

  	
   

  
	
   

  	
  Signature Guarantee:

  	
   

  
	
  Please print name and address

  of Registered Holder:

  Name

  Address

  	
   

  Social Security or other Taxpayer Identification

  Number, if any

  



 


D-4

















 


{TO BE ATTACHED TO GLOBAL CERTIFICATES}


 


SCHEDULE OF INCREASES AND DECREASES IN GLOBAL CERTIFICATE


 


The following increases or decreases in this Global Certificate have
been made:


 


	
  Amount of increase in

  Number of Stripped

  APEX evidenced by this

  Global Certificate

  	
   

  	
  Amount of decrease in

  Number of Stripped

  APEX evidenced by this

  Global Certificate

  	
   

  	
  Number of Stripped

  APEX evidenced by this

  Global Certificate 

  following such decrease

  or increase

  	
   

  	
  Signature of authorized 

  signatory of Securities 

  Registrar

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


D-5