Exhibit 4.6


 




 





STOCK PURCHASE CONTRACT AGREEMENT


 


 


between


 


 


STATE STREET CORPORATION


 


 


and


 


 


STATE
STREET CAPITAL TRUST III,


acting through U.S. Bank National Association,

as Property Trustee


 


Dated as of January 25, 2008




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
  ARTICLE I

  
	
   

  	
   

  	
   

  
	
  Definitions
  And Other Provisions Of General Application

  
	
   

  	
   

  	
   

  
	
  SECTION 1.1.

  	
  Definitions

  	
  1

  
	
  SECTION 1.2.

  	
  Form of Documents Delivered to Property
  Trustee

  	
  7

  
	
  SECTION 1.3.

  	
  Notices

  	
  7

  
	
  SECTION 1.4.

  	
  Effect of Headings and Table of Contents

  	
  8

  
	
  SECTION 1.5.

  	
  Successors and Assigns

  	
  8

  
	
  SECTION 1.6.

  	
  Separability Clause

  	
  8

  
	
  SECTION 1.7.

  	
  Benefits of Agreement

  	
  8

  
	
  SECTION 1.8.

  	
  Governing Law; Submission to Jurisdiction

  	
  8

  
	
  SECTION 1.9.

  	
  Legal Holidays

  	
  8

  
	
  SECTION 1.10.

  	
  No Waiver

  	
  9

  
	
  SECTION 1.11.

  	
  No Consent to Assumption

  	
  9

  
	
  SECTION 1.12.

  	
  No Recourse

  	
  9

  



 


ARTICLE II


 


The Stock Purchase Contracts


 


	
  SECTION 2.1.

  	
  Issuance of Stock Purchase Contracts;
  Transferability; Assignment; Amendment

  	
  10

  
	
  SECTION 2.2.

  	
  Purchase of Preferred Stock; Payment of
  Purchase Price

  	
  10

  
	
  SECTION 2.3.

  	
  Issuance of Preferred Stock

  	
  11

  
	
  SECTION 2.4.

  	
  Termination Event; Redemption Prior to
  Stock Purchase Date; Notice

  	
  11

  
	
  SECTION 2.5.

  	
  Charges and Taxes

  	
  12

  
	
  SECTION 2.6.

  	
  Contract Payments

  	
  12

  
	
  SECTION 2.7.

  	
  Deferral of Contract Payments

  	
  16

  



 


ARTICLE III


 


Remedies


 


	
  SECTION 3.1.

  	
  Unconditional Right of the Property Trustee
  to Receive Contract Payments and to Purchase Shares of Preferred Stock;
  Direct Action by Holders of Normal APEX, Capital APEX or Stripped APEX

  	
  19

  
	
  SECTION 3.2.

  	
  Restoration of Rights and Remedies

  	
  19

  
	
  SECTION 3.3.

  	
  Rights and Remedies Cumulative

  	
  19

  
	
  SECTION 3.4.

  	
  Waiver of Stay or Extension Laws

  	
  19

  



 


i

















 


ARTICLE IV


 


Consolidation, Merger, Conveyance, Transfer Or Lease


 


	
  SECTION 4.1.

  	
  Covenant Not to Consolidate, Merge, Convey,
  Transfer or Lease Property Except under Certain Conditions

  	
  20

  
	
  SECTION 4.2.

  	
  Rights and Duties of Successor Corporation

  	
  20

  
	
  SECTION 4.3.

  	
  Officers’ Certificate and Opinion of
  Counsel Given to Property Trustee

  	
  20

  



 


ARTICLE V


 


Covenants


 


	
  SECTION 5.1.

  	
  Performance under Stock Purchase Contracts

  	
  21

  
	
  SECTION 5.2.

  	
  Company to Reserve Preferred Stock

  	
  21

  
	
  SECTION 5.3.

  	
  Covenants as to Preferred Stock

  	
  21

  
	
  SECTION 5.4.

  	
  Statements of Officers of the Company as to
  Default

  	
  21

  



 


ii

















 


STOCK PURCHASE CONTRACT AGREEMENT, dated as
of January 25, 2008, between State Street Corporation, a Massachusetts
corporation (the “Company”), having its principal office at One Lincoln Street,
Boston, Massachusetts 02111, and State Street Capital Trust III, a Delaware
statutory trust (the “Issuer Trust”), acting through U.S. Bank National
Association, not in its individual capacity but solely as Property Trustee of
the Issuer Trust (the “Property Trustee”).


 


RECITALS


 


The Company has duly authorized
the execution and delivery of this Agreement.


 


All things necessary to make
the Stock Purchase Contracts (as defined herein) the valid obligations of the
Company and to constitute this Agreement as a valid agreement of the Company,
in accordance with its terms, have been done.


 


NOW, THEREFORE, this Stock
Purchase Contract Agreement Witnesseth: 
For and in consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, it is mutually agreed as follows:


 


ARTICLE I


 


Definitions
And Other Provisions Of General Application


 


SECTION 1.1.  Definitions.  For all purposes of this 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 accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and the term “generally accepted accounting principles”, with
respect to any computation required or permitted hereunder, shall mean such
accounting principles that are generally accepted in the United States at the
date or time of such computation; provided that when two or more principles are
so generally accepted, it shall mean that set of principles consistent with
those in use by the Company at that point in time.


 


(c)           The words “herein,” “hereof” and “hereunder” and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision.


 





















 


(d)           Unless the context otherwise requires, any references to
an “Article,” a “Section” or another subdivision refers to an Article, a Section or
another subdivision, as the case may be, of this Stock Purchase Contract
Agreement.


 


(e)           The following terms shall have the following meanings:


 


“Additional Subordinated
Debentures” means the subordinated notes of the Company that may be issued
to the Property Trustee as provided in Section 2.7(c).


 


“Administrative Trustee”
has the meaning specified in the Trust Agreement.


 


“Agreement” means this
instrument as originally executed or as it may from time to time be
supplemented or amended by one or more agreements supplemental hereto entered
into pursuant to the applicable provisions hereof.


 


“APEX” has the meaning
specified in the Trust Agreement.


 


“Bankruptcy Code” means
the Bankruptcy Reform Act of 1978, Title 11 of the United States Code, as
amended from time to time, or any other law of the United States that from time
to time provides a uniform system of bankruptcy laws.


 


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


 


“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 law or executive order to
close.


 


“Capital APEX” has the
meaning specified in the Trust Agreement.


 


“Code” means the
Internal Revenue Code of 1986, as amended.


 


“Collateral” 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 become such 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 Company,
the Issuer Trust (acting through the Property Trustee), the Collateral Agent,
the Custodial Agent, the Securities Intermediary and the Securities Registrar,
as amended from time to time.


 


2

















 


“Company” has the
meaning set forth in the preamble to this Agreement until a successor shall
have become such pursuant to the applicable provision of this Agreement, and
thereafter “Company” shall mean such successor.


 


“Contract Payments”
means the payments payable by the Company on the Payment Dates in respect of
each Stock Purchase Contract, at the rate of 2.249% per annum of the Stated
Amount of each Stock Purchase Contract.


 


“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.


 


“Deferred Contract Payments”
has the meaning specified in Section 2.7(a).


 


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


 


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


 


“Federal Reserve” means (i) 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 Agreement the
Federal Reserve is not existing and performing the duties now assigned to it,
then the body or bodies performing such duties at such time, or the Federal
Reserve Bank of Boston, or (ii) any successor Federal Reserve Bank (or successor
body performing such duties) having primary jurisdiction over the Company.


 


“Guarantee Agreement”
means the Guarantee Agreement between the Company, as Guarantor and U.S. Bank
National Association, as Guarantee Trustee named thereunder, dated as of the
date hereof.


 


“Holder” means a Holder
(as such term is defined in the Trust Agreement) of Normal APEX, Capital APEX
or Stripped APEX.


 


“Indenture” means the
Junior Subordinated Indenture, dated as of December 15, 1996 between the
Company 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 supplemented by the Third
Supplemental Indenture dated January 25, 2008.


 


“Issuer Trust” means the
Person named as the “Issuer Trust” in the preamble to this Agreement.


 


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


 


3

















 


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


 


“Normal APEX” has the
meaning specified in the Trust Agreement.


 


“Officers’ Certificate”
means a certificate signed by the Chairman and Chief Executive Officer,
President or a Vice President, and by the Treasurer, an Associate Treasurer, an
Assistant Treasurer, the Controller, the Secretary or an Assistant Secretary of
the Company or the duly authorized designee of the foregoing, and delivered to
the Property Trustee.


 


“Opinion of Counsel”
means a written opinion of legal counsel, who may be counsel to the Company
(and who may be an employee of the Company), and who shall be reasonably
acceptable to the Property Trustee.  An
Opinion of Counsel may rely on certificates as to matters of fact.


 


“Parity Securities” has
the meaning specified in Section 2.7(d).


 


“Paying Agent” has the
meaning specified in the Trust Agreement.


 


“Payment Account” has
the meaning specified in the Trust Agreement.


 


“Payment Date” means (i) each
Regular Distribution Date, commencing on September 15, 2008 and (ii) the
Stock Purchase Date.


 


“APEX” has the meaning
specified in the Trust Agreement.


 


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


 


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


 


“Pledged Securities”
means the Pledged Junior Subordinated Debentures and the Pledged Treasury Securities.


 


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


 


“Preferred Stock” means
the Non-Cumulative Perpetual Preferred Stock, Series A, $100,000
liquidation preference per share with no par value per share, of the Company.


 


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


 


4

















 


“Property Trustee” means
U.S. Bank National Association, not in its individual capacity but solely as
Property Trustee under the Trust Agreement until a successor Property Trustee
shall have become such pursuant to the applicable provisions of the Trust
Agreement, and thereafter “Property Trustee” shall mean the Person who is then
Property Trustee thereunder.


 


“Qualifying Treasury
Securities” has the meaning specified in the Trust Agreement.


 


“Redemption Price” has
the meaning specified in the Trust Agreement.


 


“Remarketing” means a
remarketing of Junior Subordinated Debentures pursuant to the Indenture.


 


“Remarketing Agent” has
the meaning specified in the Trust Agreement.


 


“Remarketing Agreement”
has the meaning specified in the Trust Agreement.


 


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


 


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


 


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


 


“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 Registrar”
means U.S. Bank National Association, as Securities Registrar under the
Collateral Agreement until a successor Securities Registrar shall have become such
pursuant to the applicable provisions of the Collateral Agreement, and
thereafter “Securities Registrar” shall mean such successor or any subsequent
successor who is appointed pursuant to the Collateral Agreement.


 


“Senior Indebtedness”
has the meaning specified in the Indenture.


 


“Stated Amount” means,
with respect to any one Stock Purchase Contract, $100,000.


 


“Stock Purchase Contract”
means a contract having a Stated Amount of $100,000 obligating (i) the
Company to sell, and the Issuer Trust (acting through the Property Trustee) to
purchase, one share of Preferred Stock for $100,000 on the Stock 


 


5

















 


Purchase Date
and (ii) the Company to pay Contract Payments to the Issuer Trust, in each
case on the terms and subject to the conditions set forth in Article II
and Article V.


 


“Stock Purchase Date”
means the first to occur of any March 15, June 15, September 15
or December 15, or if any such day is not a Business Day, the next
Business Day, after (i) the Remarketing Settlement Date or (ii) the
Remarketing Period of a Failed Remarketing.


 


“Stripped APEX” has the
meaning specified in the Trust Agreement.


 


“Successful” has the
meaning specified in the Indenture.


 


“Termination Date” means
the date, if any, on which a Termination Event occurs or the Company redeems
all the Junior Subordinated Debentures prior to the Stock Purchase Date in
accordance with the Indenture.


 


“Termination Event”
means the occurrence of any of the following events at any time on or prior to
the Stock Purchase Date:


 


(i)            a
judgment, decree or court order shall have been entered granting relief under
the Bankruptcy Code or any other similar applicable federal or state law,
adjudicating the Company to be insolvent, or approving as properly filed a
petition seeking reorganization or liquidation of the Company and if such
judgment, decree or order shall have been entered more than 90 days prior
to the Stock Purchase Date, such decree or order shall have continued
undischarged and unstayed for a period of 90 days;


 


(ii)           a
judgment, decree or court order for the appointment of a receiver or liquidator
or trustee or assignee in bankruptcy or insolvency of the Company or of its
property, or for the termination or liquidation of its affairs, shall have been
entered and if such judgment, decree or order shall have been entered more than
90 days prior to the Stock Purchase Date, such judgment, decree or order
shall have continued undischarged and unstayed for a period of 90 days; or


 


(iii)          the
Company shall file a petition for relief under the Bankruptcy Code or any other
similar applicable federal or state law, or shall consent to the filing of a
bankruptcy proceeding against it, or shall file a petition or answer or consent
seeking reorganization or liquidation under the Bankruptcy Code or any other
similar applicable federal or state law, or shall consent to the filing of any
such petition, or shall consent to the appointment of a receiver or liquidator
or trustee or assignee in bankruptcy or insolvency of it or of its property, or
shall make an assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts generally as they become due.


 


“Trust Agreement” means
the Amended and Restated Trust Agreement, dated as of the date hereof, among
the Company, as Depositor, U.S. Bank National Association, as Property Trustee,
U.S. Bank Trust National Association, as Delaware 


 


6

















 


Trustee and
the Administrative Trustees (each as named therein) and the several Holders (as
defined therein).


 


“Vice President” means
any vice president, whether or not designated by a number or a word or words
added before or after the title “Vice President.”


 


SECTION 1.2.  Form of Documents Delivered to Property
Trustee.  (a)  In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.  Any certificate or opinion of an officer of
the Company may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which its
certificate or opinion is based are erroneous. 
Any such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.


 


(b)           Where any Person is required to make, give or execute two
or more applications, requests, consents, certificates, statements, opinions or
other instruments under this Agreement, they may, but need not, be consolidated
and form one instrument.


 


SECTION 1.3.  Notices.  Any notice or communication is duly given if
in writing and delivered in Person or mailed by first-class mail (registered or
certified, return receipt requested), telecopied (with receipt confirmed) or
delivered by overnight air courier guaranteeing next day delivery, to the
others’ address; provided that notice shall be deemed given to the Property
Trustee only upon receipt thereof:


 


If to the Issuer Trust or the
Property Trustee:


 


U.S. Bank National Association,


as Property Trustee of State
Street Capital Trust III


100 Wall Street, Suite 1600,
New York, New York 10005


 


Attention: Earl W. Dennison, Jr.,
Vice President


 


If to the Company:


 


State Street Corporation


One Lincoln Street


Boston, Massachusetts 02111


 


7

















 


Attention: Chief Legal Officer


Facsimile: (617) 664-8209


 


If to the Collateral Agent:


 


U.S. Bank National Association,


 


100 Wall Street, Suite 1600,
New York, New York 10005


Attention: Earl W. Dennison, Jr.,
Vice President


Facsimile: (617) 603-6667


 


SECTION 1.4.  Effect of Headings and Table of Contents.  The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.


 


SECTION 1.5.  Successors and Assigns.  All covenants and agreements in this
Agreement by the Company and the Issuer Trust shall bind their respective
successors and assigns, whether so expressed or not.


 


SECTION 1.6.  Separability Clause.  In case any provision in this Agreement shall
be invalid, illegal or unenforceable by a court of competent jurisdiction, the
validity, legality and enforceability of the remaining provisions hereof and
thereof shall not in any way be affected or impaired thereby.


 


SECTION 1.7.  Benefits of Agreement.  Nothing contained in this Agreement, express
or implied, shall give to any Person, other than the parties hereto and their
successors and assigns hereunder and, to the extent provided hereby, the
holders of Senior Indebtedness and any Paying Agent, and in the case of Section 1.10
and 2.2(c) the Collateral Agent any benefits or any legal or equitable
right, remedy or claim under this Agreement.


 


SECTION 1.8.  Governing Law; Submission to Jurisdiction.  This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without regard to the
conflict of law principles thereof.  The
Company and the Issuer Trust hereby submit to the nonexclusive jurisdiction of
the United States District Court for the Southern District of New York and the
courts of the State of New York (in each case sitting in New York County) for
the purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby.  The Company and the Issuer Trust irrevocably
waive, to the fullest extent permitted by applicable law, any objection that
they may now or hereafter have to the laying of the venue of any such
proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.


 


SECTION 1.9.  Legal Holidays.  (a)  In any case where any Payment
Date shall not be a Business Day (notwithstanding any other provision of this
Agreement), Contract Payments or other distributions shall not be paid on such
date, but Contract Payments or such other distributions shall be paid on the
next succeeding Business Day 


 


8





















 


with the same force and effect as if made on
such Payment Date.  No interest shall
accrue or be payable by the Company or to the Property Trustee (on behalf of
the Issuer Trust) for the period from and after any such Payment Date on such
successive Business Day.


 


(b)           In any case where the Stock Purchase Date shall not be a
Business Day (notwithstanding any other provision of this Agreement), the Stock
Purchase Contracts shall not be performed and shall not be effected on such
date, but the Stock Purchase Contracts shall be performed on the next
succeeding Business Day with the same force and effect as if made on such Stock
Purchase Date.


 


SECTION 1.10.  No Waiver.  No failure on the part of the Company, the
Property Trustee, the Collateral Agent, the Securities Intermediary or any of
their respective agents to exercise, and no course of dealing with respect to,
and no delay in exercising, any right, power or remedy hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise by the Company,
the Property Trustee, the Collateral Agent, the Securities Intermediary or any
of their respective agents of any right, power or remedy hereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy.  The remedies herein are
cumulative and are not exclusive of any remedies provided by law.


 


SECTION 1.11.  No Consent to Assumption.  The Property Trustee for and on behalf of the
Issuer Trust hereby expressly withholds any consent to the assumption under Section 365
of the Bankruptcy Code or otherwise, of the Stock Purchase Contract by the
Company or its trustee, receiver, liquidator or a Person performing similar
functions in the event that the Company becomes the debtor under the Bankruptcy
Code or subject to other similar state or Federal law providing for
reorganization or liquidation.


 


SECTION 1.12.  No Recourse.  It is expressly understood and agreed by the
parties hereto that (a) this Agreement is executed and delivered by U.S.
Bank National Association, not individually or personally but solely as
Property Trustee of the Issuer Trust, in the exercise of the powers and
authority conferred and vested in it, (b) each of the representations,
warranties, covenants, undertakings and agreements herein made on the part of
the Issuer Trust is made and intended not as personal representations,
warranties, covenants, undertakings and agreements by U.S. Bank National
Association but is made and intended for the purpose of binding only the Issuer
Trust, (c) nothing herein contained shall be construed as creating any
liability on the part of U.S. Bank National Association, individually or
personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties
hereto and by any Person claiming by, through or under the parties hereto and (d) under
no circumstances shall U.S. Bank National Association be personally liable for
the payment of any indebtedness or expenses of the Issuer Trust or be liable
for the breach or failure of any obligation, representation, warranty or covenant
made or undertaken by the Issuer Trust under this Agreement or any other
related documents.


 


9





















 


ARTICLE II  


 


The Stock
Purchase Contracts


 


SECTION 2.1.  Issuance of Stock Purchase Contracts;
Transferability; Assignment; Amendment. 
(a)  Contemporaneously with the execution and delivery of this
Agreement, the Company hereby issues 5,001 Stock Purchase Contracts having the
terms and conditions set forth herein to the Issuer Trust (acting through the
Property Trustee), which by its execution and delivery of this Agreement is
entering into and agreeing to be bound by the Stock Purchase Contracts.  No certificates will be issued to evidence
the Stock Purchase Contracts.


 


(b)           To the fullest extent permitted by law, other than a
transfer in connection with (i) a merger, consolidation, amalgamation or
replacement of the Issuer Trust or (ii) any conveyance, transfer or lease
by the Issuer Trust of its properties and assets substantially as an entirety
to, and the assumption by, a successor entity pursuant to Section 9.5 of
the Trust Agreement, any attempted transfer of the Stock Purchase Contracts
shall be void.


 


(c)           To the fullest extent permitted by law, any assignment by
the Issuer Trust of its rights hereunder, other than an assignment of this
Agreement in connection with a merger, consolidation, amalgamation or
replacement of the Issuer Trust or any conveyance, transfer or lease by the
Issuer Trust of its properties and assets substantially as an entirety to, and
the assumption by, a successor entity pursuant to Section 9.5 of the Trust
Agreement, shall be void.


 


(d)           No amendment, modification or waiver of any provision of
this Agreement shall be effective against either party hereto unless it is duly
authorized by resolution of the Board of Directors of the Company and permitted
under Section 6.1(c) of the Trust Agreement.


 


SECTION 2.2.  Purchase of Preferred Stock; Payment of
Purchase Price.  (a)  Each
Stock Purchase Contract shall obligate the Issuer Trust (acting through the
Property Trustee) to purchase, and the Company to sell, on the Stock Purchase
Date at a price equal to the Stated Amount, one share of Preferred Stock,
unless a Termination Event shall have occurred or the Company shall have
redeemed all of the Junior Subordinated Debentures prior to the Stock Purchase
Date in accordance with the Indenture.


 


(b)           The Issuer Trust will satisfy its obligations under Section 2.2(a) to
pay the purchase price in respect of the Stock Purchase Contracts out of the
Proceeds at maturity of the Pledged Treasury Securities.


 


(c)           If there is a Failed Remarketing, the Collateral Agent for
the benefit of the Company reserves all of its rights as a secured party with
respect to the Pledged Junior Subordinated Debentures and, subject to
applicable law and Section 2.2(d), may, among other things, (i) retain
such Pledged Junior Subordinated Debentures 


 


10





















 


or their Proceeds in full satisfaction of the
Issuer Trust’s obligations under the Stock Purchase Contracts or (ii) sell
such Pledged Junior Subordinated Debentures in one or more public or private
sales as permitted by applicable law, in order to satisfy the Issuer Trust’s
obligations under Section 2.2(a) to pay the purchase price in respect
of the Stock Purchase Contracts to the extent not satisfied out of the Proceeds
at maturity of the Pledged Treasury Securities.


 


(d)           The obligations of the Issuer Trust to pay the purchase
price in respect of the Stock Purchase Contracts are non-recourse obligations
and are payable solely out of the Proceeds of any Collateral pledged to secure
the obligations of the Issuer Trust as set forth in this Section 2.2, and
in no event will the Property Trustee be liable for any deficiency between the
Proceeds of the disposition of Collateral and the purchase price in respect of
the Stock Purchase Contracts.


 


(e)           The Company shall not be obligated to cause the issuance
of any share of Preferred Stock in respect of a Stock Purchase Contract or
deliver any certificates therefor to the Property Trustee unless the Company
shall have received payment for the share of Preferred Stock to be purchased
thereunder in the manner herein set forth.


 


SECTION 2.3.  Issuance of Preferred Stock.  Unless a Termination Event shall have
occurred or the Company shall have redeemed all the Junior Subordinated
Debentures prior to the Stock Purchase Date in accordance with the Indenture,
on the Stock Purchase Date upon receipt of the aggregate purchase price payable
on all Stock Purchase Contracts, the Company shall cause to be issued and
deposited with the Property Trustee (or its nominee), one or more certificates
representing newly issued shares of Preferred Stock registered in the name of
the Property Trustee (or its nominee) as custodian for the Issuer Trust to
which the Issuer Trust is entitled hereunder.


 


SECTION 2.4.  Termination Event; Redemption Prior to
Stock Purchase Date; Notice.  (a)  The
Stock Purchase Contracts and all obligations and rights of the Company and the
Issuer Trust (including the obligations and rights of the Property Trustee
acting on behalf of the Issuer Trust) thereunder, including, without
limitation, the right of the Issuer Trust to receive and the obligation of the
Company to pay any Contract Payments (including any accrued and unpaid Contract
Payments), and the rights and obligations of the Issuer Trust to purchase
shares of Preferred Stock, shall immediately and automatically terminate,
without the necessity of any notice or action by the Issuer Trust, the Property
Trustee or the Company, if a Termination Event shall have occurred on or prior
to the Stock Purchase Date.


 


(b)           The Stock Purchase Contracts and all obligations and
rights of the Company and the Issuer Trust (including the obligations and
rights of the Property Trustee acting on behalf of the Issuer Trust)
thereunder, including, without limitation, the right of the Issuer Trust to
receive and the obligation of the Company to pay any Contract Payments, except
as provided in this Section 2.4(b), and the rights and obligations of the
Issuer Trust to purchase shares of Preferred Stock, shall also terminate
automatically upon the redemption of all the Junior Subordinated Debentures by
the Company prior to 


 


11





















 


the Stock Purchase Date in accordance with
the Indenture. Upon any such termination, the Company shall pay to the Issuer
Trust for distribution to the Holders of the Normal APEX, Capital APEX and the
Stripped APEX all accrued and unpaid Contract Payments.


 


(c)           Upon the occurrence of a Termination Event or the
redemption of all the Junior Subordinated Debentures by the Company prior to
the Stock Purchase Date in accordance with the Indenture, the Company shall
promptly but in no event later than five Business Days thereafter give written
notice to the Property Trustee and the Collateral Agent of such event.


 


SECTION 2.5.  Charges and Taxes.  The Company will pay all stock transfer and
similar taxes attributable to the initial issuance and delivery of the shares
of Preferred Stock pursuant to the Stock Purchase Contracts; provided that the
Company shall not be required to pay any such tax or taxes that may be payable
in respect of any issuance of a share of Preferred Stock in a name other than
in the name of the Property Trustee or its nominee, as custodian for the Issuer
Trust, and the Company shall not be required to issue or deliver such share
certificates unless or until the Person or Persons requesting the issuance
thereof shall have paid to the Company, in addition to any Stated Amount, the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.


 


SECTION 2.6.  Contract Payments.  (a)  Subject to Section 2.7,
the Company shall pay, in arrears on each Payment Date, the Contract Payments
payable in respect of each Stock Purchase Contract to the Property Trustee or
upon its order.  The Contract Payments
will be payable by wire transfer to the Payment Account established under the
Trust Agreement by U.S. Bank, National Association, as Paying Agent, and the
Property Trustee so directs.  The
Contract Payments will accrue from and including January 25, 2008 or from
and including the most recent Payment Date on which Contract Payments have been
paid or duly provided for (subject to deferral as set forth in Section 2.7)
to but excluding the next succeeding Payment Date. Contract Payments will be
calculated on the basis of a 360-day year consisting of twelve 30-day months.


 


(b)           The Company’s obligations with respect to Contract
Payments, if any, will be subordinated and junior in right of payment to the
Company’s obligations under any Senior Indebtedness to the extent and in the
manner set forth in Sections 2.6(c) through (m).


 


(c)           No payment or distribution in respect of any Contract
Payments shall be made by the Company unless full payment of amounts then due
for principal (and premium, if any), sinking funds, and interest on Senior
Indebtedness of the Company has been made or duly provided for in money or
money’s worth in accordance with its terms. 
No payment or distribution in respect of any Contract Payments shall be
made by the Company if, at the time of such payment or immediately after giving
effect thereto, there shall have occurred an event of default with respect to
any Senior Indebtedness of the Company or in any instrument under which the
same is outstanding, or an event of default with respect to any Senior
Indebtedness of the Company resulting 


 


12





















 


in the acceleration of the maturity thereof,
or if any judicial proceedings are pending with respect to any such default.


 


(d)           Upon the occurrence of any event of default referred to in
Section 2.6(c) that shall not have been cured or waived:


 


(i)            all
Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, shall
be made to the Property Trustee in respect of Contract Payments;


 


(ii)           any
payment or distribution, whether in cash, securities or other property that
would otherwise (but for these subordination provisions) be payable or
deliverable in respect of Contract Payments shall be paid or delivered directly
to the holders of Senior Indebtedness in accordance with the priorities then
existing among such holders until all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such proceedings) shall
have been paid in full;


 


(iii)          after
payment in full of all sums owing with respect to Senior Indebtedness, the
Property Trustee, together with the holders of any obligations of the Company
ranking on a parity with the Contract Payments, shall be entitled to be paid
from the remaining assets of the Company the amounts at the time due and owing
on account of unpaid Contract Payments and interest thereon and such other
obligations before any payment or other distribution, whether in cash,
securities or other property, shall be made on account of any capital stock of
the Company or any obligations of the Company ranking junior to the Company’s
obligations to make Contract Payments under the Stock Purchase Contracts and
such other obligations; and


 


(iv)          in
the event that, notwithstanding the foregoing, any payment or distribution of
any character or any security, whether in cash, securities or other property,
shall be received by the Property Trustee or the Issuer Trust in contravention
of any of the terms hereof such payment or distribution or security shall be
received in trust for the benefit of, and shall be paid over or delivered and
transferred back to the transferor for distribution, or to the holders of the
Senior Indebtedness at the time outstanding in accordance with the priorities
then existing among such holders for application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay all such Senior
Indebtedness in full. In the event of the failure of the Property Trustee or
the Issuer Trust to endorse or assign any such payment, distribution or
security, each holder of Senior Indebtedness is hereby irrevocably authorized
to endorse or assign the same.


 


(e)           For purposes of Sections 2.6(c) through (p), the
words “cash, securities or other property” shall not be deemed to include
shares of stock of the Company as reorganized or readjusted, or securities of
the Company or any other Person 


 


13





















 


provided for by a plan of reorganization or
readjustment, the payment of which is subordinated at least to the extent
provided in Sections 2.6(b) through (m) with respect to such
Contract Payments on the Stock Purchase Contracts to the payment of all Senior
Indebtedness that may at the time be outstanding; provided that (i) the
indebtedness or guarantee of indebtedness, as the case may be, that constitutes
Senior Indebtedness is assumed by the Person, if any, resulting from any such
reorganization or readjustment, and (ii) the rights of the holders of the
Senior Indebtedness are not, without the consent of each such holder adversely
affected thereby, altered by such reorganization or readjustment.


 


(f)            Any failure by the Company to make any payment on or
perform any other obligation under Senior Indebtedness, other than any
indebtedness incurred by the Company or assumed or guaranteed, directly or
indirectly, by the Company for money borrowed (or any deferral, renewal,
extension or refunding thereof) or any indebtedness or obligation as to which the
provisions of Sections 2.6(b) through (m) shall have been waived
by the Company in the instrument or instruments by which the Company incurred,
assumed, guaranteed or otherwise created such indebtedness or obligation, shall
not be deemed a default or event of default if (i) the Company shall be
disputing its obligation to make such payment or perform such obligation and (ii) either
(A) no final judgment relating to such dispute shall have been issued
against the Company that is in full force and effect and is not subject to
further review, including a judgment that has become final by reason of the
expiration of the time within which a party may seek further appeal or review,
or (B) in the event a judgment that is subject to further review or appeal
has been issued, the Company shall in good faith be prosecuting an appeal or
other proceeding for review and a stay of execution shall have been obtained
pending such appeal or review.


 


(g)           Subject to the irrevocable payment in full of all Senior
Indebtedness, the Property Trustee on behalf of the Issuer Trust shall be
subrogated (equally and ratably with the holders of all obligations of the
Company that by their express terms are subordinated to Senior Indebtedness of
the Company to the same extent as payment of the Contract Payments in respect
of the Stock Purchase Contracts is subordinated and that are entitled to like
rights of subrogation) to the rights of the holders of Senior Indebtedness to
receive payments or distributions of cash, securities or other property of the
Company applicable to the Senior Indebtedness until all such Contract Payments
owing on the Stock Purchase Contracts shall be paid in full, and as between the
Company, its creditors other than holders of such Senior Indebtedness and the Property
Trustee, no such payment or distribution made to the holders of Senior
Indebtedness by virtue of Sections 2.6(b) through (m) that
otherwise would have been made to the Property Trustee shall be deemed to be a
payment by the Company on account of such Senior Indebtedness, it being
understood that the provisions of Sections 2.6(b) through (m) are
intended solely for the purpose of defining the relative rights of the Property
Trustee, on the one hand, and the holders of Senior Indebtedness, on the other hand.


 


(h)           Nothing contained in Sections 2.6(b) through (m) or
elsewhere in this Agreement is intended to or shall impair, as among the
Company, its creditors other 


 


14





















 


than the holders of Senior Indebtedness and
the Property Trustee, the obligation of the Company, which is absolute and
unconditional, to pay to the Property Trustee such Contract Payments on the
Stock Purchase Contracts as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Property Trustee and creditors of the Company other than the
holders of Senior Indebtedness, nor shall anything herein or therein prevent
the Property Trustee from exercising all remedies otherwise permitted by
applicable law upon default under this Agreement, subject to the rights, if
any, under Sections 2.6(b) through (m), of the holders of Senior
Indebtedness in respect of cash, securities or other property of the Company
received upon the exercise of any such remedy.


 


(i)            Upon payment or distribution of assets of the Company
referred to in Sections 2.6(b) through (m), the Property Trustee
shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which any such dissolution, winding up, liquidation
or reorganization proceeding affecting the affairs of the Company is pending or
upon a certificate of the trustee in bankruptcy, receiver, conservator,
assignee for the benefit of creditors, liquidating trustee or other Person
making any payment or distribution, delivered to the Property Trustee, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to
Sections 2.6(b) through (m); provided that the foregoing shall not be
construed as creating any duty on the part of the Property Trustee.


 


(j)            The Property Trustee shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself to be a
holder of Senior Indebtedness (or a trustee or representative on behalf of such
holder) to establish that such notice has been given by a holder of Senior
Indebtedness or a trustee or representative on behalf of any such holder or
holders.  In the event that the Property
Trustee determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Senior Indebtedness to participate in
any payment or distribution pursuant to Section 2.6(b) through (m),
the Property Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Property Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is entitled
to participate in such payment or distribution and any other facts pertinent to
the rights of such Person under Sections 2.6(b) through (m), and, if
such evidence is not furnished, the Property Trustee may defer payment to such
Person pending judicial determination as to the right of such Person to receive
such payment, provided that the foregoing shall not be construed as imposing any
obligation or duty on the part of the Property Trustee.


 


(k)           Nothing contained in Sections 2.6(b) through (m) shall
affect the obligations of the Company to make, or prevent the Company from
making, payment of the Contract Payments, except as otherwise provided in
Sections 2.6(b) through (m).


 


(l)            U.S. Bank National Association, or any successor Property
Trustee, in its individual capacity shall be entitled to all the rights set
forth in this Section with respect to any Senior Indebtedness at the time
held by it, to the same extent as any 


 


15





















 


other holder of Senior Indebtedness and
nothing in this Agreement shall deprive U.S. Bank National Association, or any
successor Property Trustee of any of its rights as such holder.


 


(m)          No right of any present or future holder of any Senior
Indebtedness to enforce the subordination herein shall at any time or in any
way be prejudiced or impaired by any act or failure to act on the part of the
Company or by any noncompliance by the Company with the terms, provisions and
covenants of this Agreement, regardless of any knowledge thereof that any such
holder may have or be otherwise charged with.


 


(n)           Nothing in this Section 2.6 shall apply to claims of,
or payments to, the Property Trustee under or pursuant to Section 2.7.


 


(o)           With respect to the holders of Senior Indebtedness, (i) the
Property Trustee shall not be liable to any such holders if it shall pay over
or distribute to the Holders or to the Company or any other Person cash,
securities or other property received by it to which any holders of Senior
Indebtedness shall be entitled by virtue of this Section 2.6 or otherwise;
(ii) no implied covenants or obligations shall be read into this Agreement
against the Property Trustee; and (iii) the Property Trustee shall owe no
duties, fiduciary or otherwise, to such holders.


 


(p)           Nothing in this Section 2.6 shall apply to any
payment or distribution, whether in cash, securities or other property, made
to, or paid over or distributed by, any Paying Agent in respect of Contract
Payments or otherwise.  The Paying Agent
shall owe no duty, fiduciary or otherwise, to any holder of Senior Indebtedness
and shall not be liable to any holders of Senior Indebtedness if it shall pay
over or distribute to the Holders or to the Company or any other Person cash,
securities or other property to which any holders of Senior Indebtedness shall
otherwise be entitled by virtue of this Section 2.6 or otherwise; and no
implied covenants or obligations shall be read into this Agreement against the
Paying Agent.


 


SECTION 2.7.  Deferral of Contract Payments.  (a)  The Company shall have the
right (which will be exercised if so directed by the Federal Reserve), at any
time prior to the Stock Purchase Date, to defer the payment of any or all of
the Contract Payments otherwise payable on any Payment Date, but only if the
Company shall give the Property Trustee (with a copy to the Paying Agent)
written notice of its election to defer each such deferred Contract Payment
(specifying the amount to be deferred) at least one Business Day prior to the
record date for the next succeeding Payment Date.  Any Contract Payments so deferred shall, to
the extent permitted by law, accrue interest thereon at the rate originally
applicable to the Junior Subordinated Debentures (calculated on the same basis
as originally applicable to the Junior Subordinated Debentures), compounding on
each succeeding Payment Date, until paid in full (such deferred installments of
Contract Payments, if any, together with the additional Contract Payments, if
any, accrued thereon, being referred to herein as the “Deferred Contract
Payments”).  Deferred Contract Payments,
if any, shall be due on the next succeeding Payment Date except to the extent
that payment is deferred pursuant to this Section 2.7, except as provided
under Section 1.9.  No Contract
Payments may be deferred to a date 


 


16





















 


that is after the Stock Purchase Date and no
such deferral period may end other than on a Payment Date, except as provided
under Section 1.9.  If the Stock
Purchase Contracts are terminated upon the occurrence of a Termination Event or
the redemption of all the Junior Subordinated Debentures by the Company prior
to the Stock Purchase Date in accordance with the Indenture, the Issuer Trust’s
right to receive any Contract Payments and any Deferred Contract Payments will
terminate.


 


(b)           In the event that the Company elects to defer the payment
of Contract Payments until a Payment Date prior to the Stock Purchase Date,
then all Deferred Contract Payments, if any, shall be payable to the Property
Trustee on behalf of the Issuer Trust on such Payment Date, except as provided
under Section 1.9.


 


(c)           In the event that the Company elects to defer the payment
of Contract Payments on the Stock Purchase Contracts and such deferral is
continuing on the Stock Purchase Date, the Property Trustee on behalf of the
Issuer Trust will receive on the Stock Purchase Date in lieu of a cash payment,
in addition to the shares of Preferred Stock to be issued pursuant to Section 2.3,
Additional Subordinated Debentures that will (i) have a principal amount
equal to the aggregate amount of Deferred Contract Payments at the Stock
Purchase Date, (ii) mature on the later of March 15, 2013 and five
years after the first Payment Date on which any of such Deferred Contract
Payments was payable, (iii) bear interest at the rate per annum equal to
the originally applicable rate of interest on the Junior Subordinated
Debentures (subject to deferral on the same basis as the Contract Payments;
provided that the reference in clause (i)(2) of Section 2.7(d) to
the beginning of the deferral period shall be deemed to refer to the beginning
of the deferral period with respect to the Contract Payments), (iv) be
subordinate and rank junior in right of payment to all of the Company’s Senior
Indebtedness on the same basis as the Contract Payments and (v) be
redeemable at the option of the Company at any time or from time to time prior
to their stated maturity at a redemption price equal to the principal amount
thereof plus any accrued and unpaid interest to the date of redemption;
provided that the Company shall register such Additional Subordinated
Debentures under the Securities Act prior to the delivery thereof to the
Property Trustee unless they may be so delivered pursuant to an exemption or
exception from registration thereunder.


 


(d)           In the event the Company exercises its option to defer the
payment of Contract Payments then, until the earlier of (x) the
Termination Date or (y) the date on which the Company shall have either
paid all Deferred Contract Payments to the Property Trustee in cash or repaid
all amounts outstanding on the Additional Subordinated Debentures, the Company
shall not (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any shares of
its capital stock, including Preferred Stock; (ii) make any payment of
principal of or interest or premium, if any, on or repay, repurchase or redeem
any debt security of the Company that ranks or make any payments under any
guarantee that ranks, upon liquidation, pari passu in all respects with the
Junior Subordinated Debentures (“Parity Securities”) or any debt securities of
the Company that rank junior to the Junior Subordinated Debentures; or (iii) make
any guarantee payments with respect to any guarantee by the Company of the debt
securities of any subsidiary of the Company that 


 


17





















 


by its terms ranks junior in interest to the
Company’s guarantee related to the APEX other than, in each case:


 


(i)            any
repurchase, redemption or other acquisition of shares of the Company’s capital
stock in connection with (1) any employment contract, benefit plan or
other similar arrangement with or for the benefit of any one or more employees,
officers, directors, consultants or independent contractors, (2) the
satisfaction of the Company’s obligations pursuant to any contract entered into
in the ordinary course prior to the beginning of the deferral period, (3) a
dividend reinvestment or shareholder purchase plan, or (4) the issuance of
the Company’s capital stock, or securities convertible into or exercisable for
such capital stock, as consideration in an acquisition transaction entered into
prior to the beginning of the deferral period;


 


(ii)           any
exchange, redemption or conversion of any class or series of the Company’s
capital stock, or the capital stock of one of its subsidiaries, for any other
class or series of the Company’s capital stock, or any class or series of the
Company’s indebtedness for any class or series of its capital stock;


 


(iii)          any
purchase of fractional interests of the Company’s capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged;


 


(iv)          any
declaration of a dividend in connection with any rights plan, or the issuance
of rights, stock or other property under any rights plan, or the redemption or
repurchase of rights pursuant thereto;


 


(v)           payments
in respect of the Company’s guarantee related to the APEX executed for the
benefit of the Holders of the APEX;


 


(vi)          payments
of interest on Parity Securities (including the Junior Subordinated Debentures)
in additional Parity Securities (including any Additional Subordinated
Debentures) and any repurchase of Parity Securities (including the Junior
Subordinated Debentures) in exchange for preferred stock (including the Preferred
Stock), in each case in connection with a Failed Remarketing or similar event;


 


(vii)         any
payment of current or deferred interest on Parity Securities that is made pro
rata to the amounts due on such Party Securities (including the Junior
Subordinated Debentures) and any payments of principal of or deferred interest
on Parity Securities that, if not made, would cause the Company to breach the
terms of the instrument governing such Parity Securities; or


 


(viii)        any
dividend in the form of stock, warrants, options or other rights where the
dividend stock or stock issuable upon exercise of such warrants, options or
other rights is the same stock as that on which the dividend is being paid or
ranks equally with or junior to such stock.


 


18
















 


ARTICLE III


 


Remedies


 


SECTION 3.1.  Unconditional Right of the Property
Trustee to Receive Contract Payments and to Purchase Shares of Preferred Stock;
Direct Action by Holders of Normal APEX, Capital APEX or Stripped APEX.  The Property Trustee on behalf of the Issuer
Trust shall have the right, which is absolute and unconditional, (i) subject
to Article II, to receive each Contract Payment with respect to each Stock
Purchase Contract on the respective Payment Date and (ii) except upon and
following a Termination Event or the redemption of all the Junior Subordinated
Debentures by the Company prior to the Stock Purchase Date in accordance with
the Indenture, to purchase one share of Preferred Stock pursuant to such Stock
Purchase Contract and, in each such case, to institute suit for the enforcement
of any such right to receive Contract Payments and the right to purchase such
share of Preferred Stock, and such rights shall not be impaired without its
consent.  Up to and including the Stock
Purchase Date, or the earlier termination of the Stock Purchase Contracts, any
Holder shall have the right, upon default in the payment of any Contract
Payment with respect to any Stock Purchase Contract on the respective Payment
Date (subject to Article II), to institute a suit directly against the
Company for enforcement of payment to such Holder of Contract Payments on Stock
Purchase Contracts (or interests therein) having a stated amount equal to the
aggregate Liquidation Amount (as defined in the Trust Agreement) of the APEX
held by such Holder.


 


SECTION 3.2.  Restoration of Rights and Remedies.  If the Property Trustee on behalf of the
Issuer Trust has instituted any proceeding to enforce any right or remedy under
this Agreement and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Issuer Trust, then and in every
such case, subject to any determination in such proceeding, the Company and the
Issuer Trust shall be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Property
Trustee on behalf of the Issuer Trust shall continue as though no such
proceeding had been instituted.


 


SECTION 3.3.  Rights and Remedies Cumulative.  No right or remedy herein conferred upon or
reserved to the Property Trustee on behalf of the Issuer Trust is intended to
be exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise.  The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or
remedy.  Every right and remedy given by
this Article III or by law to the Property Trustee may be exercised from
time to time, and as often as may be deemed expedient, by the Property Trustee.


 


SECTION 3.4.  Waiver of Stay or Extension Laws.  The Company covenants (to the extent that it
may lawfully do so) that it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which
may 


 


19





















 


affect the covenants or the performance of
this Agreement; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Property Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.


 


ARTICLE IV


 


Consolidation,
Merger, Conveyance, Transfer Or Lease


 


SECTION 4.1.  Covenant Not to Consolidate, Merge,
Convey, Transfer or Lease Property Except under Certain Conditions.  The Company covenants that it will not
consolidate with, convert into, or merge with and into, any other entity or
sell, assign, transfer, lease or convey all or substantially all of its
properties and assets to any Person or entity, unless:


 


(a)           the
successor shall be a corporation organized and existing under the laws of the
United States of America or a State thereof or the District of Columbia and
such corporation shall expressly assume all the obligations of the Company
under the Stock Purchase Contracts, this Agreement, the Collateral Agreement,
the Trust Agreement, the Indenture, the Guarantee Agreement and the Remarketing
Agreement by one or more supplemental agreements in form reasonably
satisfactory to the Property Trustee, executed and delivered to the Property
Trustee by such corporation;


 


(b)           such
successor corporation shall not, immediately after such consolidation,
conversion, merger, sale, assignment, transfer, lease or conveyance, be in
default of payment obligations under the Stock Purchase Contracts, this
Agreement, the Collateral Agreement, the Trust Agreement or the Remarketing
Agreement or in material default in the performance of any other covenants
under any of the foregoing agreements; and


 


(c)           the
successor entity shall have reserved sufficient authorized and unissued shares
of preferred stock having substantially the same terms and conditions as the
Preferred Stock such that the Issuer Trust will receive, on the Stock Purchase
Date, shares of preferred stock having substantially the same rights as the
Preferred Stock that the Issuer Trust would have received had such merger,
consolidation or other transaction not occurred.


 


SECTION 4.2.  Rights and Duties of Successor
Corporation.  In case of any such
merger, consolidation, share exchange, sale, assignment, transfer, lease or
conveyance and upon any such assumption by a successor corporation in
accordance with Section 4.1, such successor entity shall succeed to and be
substituted for the Company with the same effect as if it had been named herein
as the Company.


 


SECTION 4.3.  Officers’ Certificate and Opinion of
Counsel Given to Property Trustee. 
The Property Trustee shall receive an Officers’ Certificate and an 


 


20





















 


Opinion of Counsel as conclusive evidence
that any such merger, consolidation, share exchange, sale, assignment,
transfer, lease or conveyance, and any such assumption, complies with the
provisions of this Article IV and that all conditions precedent to the
consummation of any such merger, consolidation, share exchange, sale,
assignment, transfer, lease or conveyance have been met.


 


ARTICLE V  


 


Covenants


 


SECTION 5.1.  Performance under Stock Purchase
Contracts.  The Company covenants and
agrees for the benefit of the Issuer Trust that it will duly and punctually
perform its obligations under the Stock Purchase Contracts in accordance with
the terms of the Stock Purchase Contracts and this Agreement.


 


SECTION 5.2.  Company to Reserve Preferred Stock.  The Company shall at all times prior to the
Stock Purchase Date reserve and keep available, free from preemptive rights,
out of its authorized but unissued Preferred Stock the full number of shares of
Preferred Stock issuable against tender of payment for such shares of Preferred
Stock in respect of all Stock Purchase Contracts.


 


SECTION 5.3.  Covenants as to Preferred Stock.  The Company covenants that all shares of
Preferred Stock that may be issued against tender of payment for such shares of
Preferred Stock in respect of any Stock Purchase Contract will, upon issuance,
be duly authorized, validly issued, fully paid and nonassessable.


 


SECTION 5.4.  Statements of Officers of the Company as
to Default.  The Company will deliver
to the Property Trustee, within 120 days after the end of each fiscal year
of the Company ending after the date hereof, an Officers’ Certificate, stating
whether or not to the knowledge of the signers thereof the Company is in
default in the performance and observance of any of the terms, provisions and
conditions hereof, and if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.


 


* * * *


 


This instrument may be executed
in any number of counterparts, each of which so executed shall be deemed to be
an original, but all such counterparts shall together constitute but one and
the same instrument.


 


21

















 


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.


 


 


	
   

  	
  STATE STREET CORPORATION,

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  
	
   

  	
    Name:

  
	
   

  	
    Title:

  
	
   

  	
   

  
	
   

  	
  STATE STREET CAPITAL TRUST III,

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  by

  	
  U.S. BANK NATIONAL 

  ASSOCIATION, not in its

  individual capacity but solely as

  Property Trustee

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
    Name:

  
	
   

  	
   

  	
    Title: