Exhibit 4.1
FIRST SUPPLEMENTAL
INDENTURE
Dated as of March 6, 2009
to
INDENTURE
Dated as of August 2, 1993
between
STATE STREET CORPORATION,
as Issuer,
and
U.S. BANK, NATIONAL
ASSOCIATION,
as successor in interest to The First National
Bank of Boston,
as Trustee
2.150% Senior Notes due
2012
TABLE OF CONTENTS
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Page
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ARTICLE I
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Definitions
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SECTION
1.01.
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Defined
Terms
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2
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ARTICLE II
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Establishment of the 2.150% Senior
Notes Due 2012
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SECTION
2.01.
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Establishment
and Designation of the Notes
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3
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SECTION
2.02.
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Form of the
Notes
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3
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SECTION
2.03.
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Principal
Amount of the Notes
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3
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SECTION
2.04.
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Interest Rate,
Withholding and Additional Amounts of the Notes
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3
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SECTION
2.05.
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Redemption of
the Notes
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4
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SECTION
2.06.
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Stated Maturity
of the Notes
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4
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SECTION
2.07.
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No Sinking
Fund
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4
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SECTION
2.08.
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Payment and
Place of Payment
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4
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SECTION
2.09.
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Global
Securities; Appointment of Depositary for Global
Securities
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4
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SECTION
2.10.
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Defeasance and
Covenant Defeasance
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5
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SECTION
2.11.
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Events of
Default
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5
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SECTION
2.12.
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Supplemental
Indenture with Consent of Holders
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5
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SECTION
2.13.
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Waiver of
Certain Covenants
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6
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ARTICLE III
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FDIC Guarantee
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SECTION
3.01.
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Events of
Default
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6
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SECTION
3.02.
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Acceleration of
Maturity; Rescission and Annulment
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6
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SECTION
3.03.
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Acknowledgement
of the FDIC’s Debt Guarantee Program
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7
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SECTION
3.04.
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The Trustee as
Representative of Holders
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7
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SECTION
3.05.
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Subrogation
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7
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SECTION
3.06.
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Agreement to
Execute Assignment upon Guarantee Payment
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7
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SECTION
3.07.
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Surrender of
Senior Unsecured Debt Instrument to the FDIC
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8
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SECTION
3.08.
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Notice
Obligations to FDIC of Payment Default
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8
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SECTION
3.09.
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Ranking
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8
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SECTION
3.10.
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No Event of
Default During Time of Timely FDIC Guarantee Payments
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- i -
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SECTION
3.11.
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No
Modifications Without FDIC Consent
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9
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SECTION
3.12.
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Demand
Obligations to FDIC upon the Company’s Failure to
Pay
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9
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ARTICLE IV
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Miscellaneous
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SECTION
4.01.
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Ratification
and Incorporation of Original Indenture
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10
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SECTION
4.02.
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Executed in
Counterparts
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10
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SECTION
4.03.
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No Undertaking
or Representation by the Trustee
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10
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SECTION
4.04.
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Applicability
of First Supplemental Indenture
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10
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SECTION
4.05.
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Further
Assurances
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10
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SECTION
4.06.
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Governing
Law
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11
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- ii -
FIRST SUPPLEMENTAL INDENTURE, dated
as of March 6, 2009 (this “ First Supplemental
Indenture ”), between STATE STREET CORPORATION, a
corporation duly organized and existing under the laws of the
Commonwealth of Massachusetts (the “ Company ”),
and U.S. BANK, NATIONAL ASSOCIATION, a national banking
association, as successor in interest to The First National Bank of
Boston, as Trustee under the Original Indenture (as hereinafter
defined) (the “ Trustee ”).
WHEREAS, the Company and the Trustee
have heretofore entered into an indenture, dated as of
August 2, 1993 (the “ Original Indenture
”);
WHEREAS, the Original Indenture is
incorporated herein by this reference and the Original Indenture,
as supplemented and amended by this First Supplemental Indenture,
is herein called the “ Indenture ”;
WHEREAS, the Company, in the
exercise of the power and authority conferred upon and reserved to
it under the provisions of the Original Indenture and pursuant to
appropriate resolutions of the Board of Directors, has duly
determined to make, execute and deliver to the Trustee this First
Supplemental Indenture to the Original Indenture in order to
establish the form and terms of, and to provide for the creation
and issuance of, a new series of Securities designated as its
“2.150% Senior Notes due 2012” in the initial principal
amount of $1,500,000,000 (the “ Notes ”), which
principal amount may be increased from time to time through the
issuance of additional Notes;
WHEREAS, Section 901 of the
Original Indenture provides, among other things, that the Company,
when authorized by Board Resolution, and the Trustee, at any time
and from time to time, without the consent of any Holders, may
enter into an indenture supplemental to the Original Indenture to
establish the form or terms of Securities of any series as
permitted by Sections 201 and 301 of the Original
Indenture;
WHEREAS, the Company has requested
that the Trustee execute and deliver this First Supplemental
Indenture; and
WHEREAS, all things necessary to
make the Notes, when executed by the Company and authenticated and
delivered by the Trustee and issued upon the terms and subject to
the conditions hereinafter and in the Original Indenture set forth
against payment therefor, the valid, binding and legal obligations
of the Company and to make this First Supplemental Indenture a
valid, binding and legal agreement of the Company, have been
done;
NOW, THEREFORE, this First
Supplemental Indenture witnesseth that, in order to establish the
form and terms of the Notes and for and in consideration of the
premises and of the covenants contained in the Original Indenture
and in this First Supplemental Indenture and for other good and
valuable consideration the receipt and sufficiency of which are
hereby acknowledged, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders, as
follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms.
Unless the context otherwise requires, capitalized terms used but
not defined herein have the meaning set forth in the Original
Indenture. The following additional terms are hereby established
for purposes of this First Supplemental Indenture and shall have
the meanings set forth in this First Supplemental Indenture only
for purposes of this First Supplemental Indenture:
“ Business Day ”
means any day other than a Saturday, Sunday or other day on which
banking institutions in New York, New York and Boston,
Massachusetts are authorized or required by law or executive order
to remain closed; provided that, solely for the purposes of
Section 3.08, “Business Day” shall have the
meaning set forth in Section 3.08.
“ Company ” has
the meaning set forth in the recitals hereto.
“ Debt Guarantee
Program ” has the meaning set forth in
Section 3.03.
“ Effective Period
” has the meaning set forth in Section 3.07.
“ FDIC ” means
the Federal Deposit Insurance Corporation, a corporation organized
under the laws of the United States.
“ First Supplemental
Indenture ” has the meaning set forth in the recitals
hereto.
“ Holder ” means
a “Holder” (as defined in the Original Indenture) of
the Notes.
“ Indenture ” has
the meaning set forth in the recitals hereto.
“ Master Agreement
” means the Master Agreement, dated December 11, 2008,
as the same may be amended from time to time, between the Company
and the FDIC pursuant to which the FDIC agrees to guarantee
payments with respect to certain debt securities that are eligible
for such guarantee under the Debt Guarantee Program.
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“ Notes ” has the
meaning set forth in the recitals hereto.
“ Notice of Default
” means a written notice of the kind specified in
Section 501(4) of the Original Indenture.
“ Original Indenture
” has the meaning set forth in the recitals
hereto.
“ Representative
” has the meaning set forth in Section 3.04.
“ Temporary Liquidity
Guarantee Program ” means the Temporary Liquidity
Guarantee Program established pursuant to 12 C.F.R. Part
370.
“ Trustee ” has
the meaning set forth in the recitals hereto.
ARTICLE II
Establishment of the 2.150%
Senior Notes Due 2012
SECTION 2.01. Establishment and
Designation of the Notes. Pursuant to the terms hereof and
Section 301 of the Original Indenture, the Company hereby
establishes a series of Securities known and designated as the
“2.150% Senior Notes due 2012”.
SECTION 2.02. Form of the
Notes. The Notes shall be issued in the form of one or more
Global Securities in substantially the form set forth in
Exhibit A hereto.
SECTION 2.03. Principal Amount of
the Notes. The Notes shall have an initial principal amount of
$1,500,000,000. The Company may from time to time, without the
consent of the Holders of the Notes and in accordance with the
Indenture and the Debt Guarantee Program, create and issue further
notes having the same terms and conditions as the Notes in all
respects so as to form a single series with the Notes.
SECTION 2.04. Interest Rate,
Withholding and Additional Amounts of the Notes. Interest on
the Notes will accrue from and including March 6, 2009 and
will be payable semi-annually in arrears on April 30 and
October 30 of each year, commencing April 30, 2009. The
interest so payable on any Interest Payment Date will be paid to
the Person in whose name the Notes are registered at the close of
business on the Regular Record Date for such interest, which shall
be April 15 or October 15, whether or not a Business Day,
as the case may be, next preceding such Interest Payment Date;
provided that interest payable at Maturity will be paid to
the Person to whom principal is payable. Interest will be computed
on the basis of a 360-day year of twelve 30-day months. In the
event that an Interest Payment Date is not a Business Day, the
Company will pay interest on the next day that is a Business Day,
with the same force and effect as if made on the Interest Payment
Date, and without any interest
3
or other payment with respect to the
delay. If the date of maturity for the Notes is not a Business Day,
payment of principal and interest on the Notes will be made on the
following day that is a Business Day and no interest will accrue
for the period from and after such date of maturity. The Notes
shall be subject to tax withholding and the payment of Additional
Amounts as defined in the form of the Note set forth in Exhibit
A hereto.
SECTION 2.05. Redemption of the
Notes. The Notes may be redeemed, as a whole but not in part,
at the option of the Company, at a redemption price equal to 100%
of the principal amount of the Notes to be redeemed together with
unpaid interest accrued to the date fixed for redemption upon the
occurrence of the events and in compliance with the requirements
set forth in the form of the Note set forth in
Exhibit A hereto. Immediately prior to the giving of
any notice of redemption of the Notes pursuant to this
Section 2.05 and the terms of the Notes, the Company will
deliver to the Trustee an Officers’ Certificate stating that
the Company is entitled to effect such redemption and setting forth
in reasonable detail a statement of facts showing that the
conditions precedent to the right of the Company to so redeem the
Notes have occurred.
SECTION 2.06. Stated Maturity of
the Notes. The Notes shall have a Stated Maturity of
April 30, 2012.
SECTION 2.07. No Sinking
Fund. No sinking fund is provided for the Notes.
SECTION 2.08. Payment and Place
of Payment. The Place of Payment of the Notes shall be the
offices or agencies of the Company maintained for that purpose in
the City of Boston, Massachusetts; provided that for so long
as the Notes are Global Securities, payment of the principal of and
any interest on the Notes will be made by the Paying Agent by wire
transfer of immediately available funds to a separate account of
the Depositary or its nominee at the Federal Reserve Bank of New
York; provided that, in the case of payments made at maturity of
such Global Security, the Global Security is presented to the
Paying Agent in time for the Paying Agent to make such payments in
accordance with its normal procedures. If any Paying Agent is
appointed, and such Paying Agent is not also serving as the
Representative, the Company and such Paying Agent shall enter into
a written agreement requiring the Paying Agent to send a written
notice to the Representative within one (1) day of any uncured
payment default by the Company, informing the Representative of
such uncured payment default.
SECTION 2.09. Global Securities;
Appointment of Depositary for Global Securities. The Notes
shall be issued in the form of one or more permanent Global
Securities deposited with, or on behalf of, The Depository Trust
Company (“ DTC ”) and registered in the name of
Cede & Co. (DTC’s partnership nominee). The Notes
will be available for purchase in denominations of $2,000 and
integral multiples of $1,000 in excess thereof in book-entry form
only. So long as DTC or any successor
4
depositary (collectively, the
“ Depositary ”) or its nominee is the registered
owner of the Global Securities, the Depositary, or such nominee, as
the case may be, will be considered to be the sole owner or holder
of the Notes for all purposes of the Indenture. Beneficial
interests in the Global Securities will be represented through
book-entry accounts of financial institutions acting on behalf of
beneficial owners as direct and indirect participants in
DTC.
SECTION 2.10. Defeasance and
Covenant Defeasance. The Notes shall be defeasible pursuant to
Section 1302 and Section 1303 of the Original
Indenture.
SECTION 2.11. Events of
Default. (a) Section 501(4) of the Original Indenture
shall not apply to the Notes and the following paragraph shall
hereby be inserted with respect to the Notes in lieu
thereof:
“(4) default in the
performance, or breach, of any covenant or warranty of the Company
in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in
this Indenture solely for the benefit of series of Securities other
than the Notes), and continuance of such default or breach for a
period of 90 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 10% in principal amount of
the Outstanding Notes 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”
(b) Section 501(5) of the
Original Indenture shall not apply to the Notes.
SECTION 2.12. Supplemental
Indenture with Consent of Holders. The clause preceding
Section 902(1) of the Original Indenture shall not apply to
the Notes and the following clause shall hereby be inserted with
respect to the Notes in lieu thereof:
“With the consent of the
Holders of not less than a majority in aggregate principal amount
of the Outstanding Notes affected by such supplemental indenture,
by Act of said Holders delivered to the Company and the Trustee,
the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Notes under
this Indenture; provided, however , that no such
supplemental indenture shall, without the consent of the Holder of
each Outstanding Note affected thereby,”
5
SECTION 2.13. Waiver of Certain
Covenants. Section 1009 of the Original Indenture shall
not apply to the Notes and the following paragraph shall hereby be
inserted with respect to the Notes in lieu thereof:
“Except as otherwise specified
as contemplated by Section 301 for the Notes, the Company may,
with respect to the Notes, omit in any particular instance to
comply with any term, provision or condition set forth in any
covenant provided pursuant to Section 301(18), 901(2) or
901(7) for the benefit of the Holders of the Notes or in any of
Section 1008, if before the time for such compliance the
Holders of at least a majority in aggregate principal amount of the
Outstanding Notes shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in
full force and effect.”
ARTICLE III
FDIC Guarantee
SECTION 3.01. Events of
Default. Sections 501(1) and 501(2) of the Original Indenture
shall not apply to the Notes and the following paragraphs shall
hereby be inserted with respect to the Notes in lieu
thereof:
“(1) default (a) by the
Company in the payment of interest, if any, upon the Notes when
such interest becomes due and payable, and continuance of such
default for a period of 30 days and (b) by the FDIC in the
payment of interest, if any, upon the Notes in accordance with the
Temporary Liquidity Guarantee Program (12 C.F.R. Part 370);
or
(2) default (a) by the Company
in the payment of the principal of or premium, if any, on the Notes
as and when the same shall become due and payable at Maturity and
(b) by the FDIC in the payment of the principal of or premium,
if any, on the Notes in accordance with the Temporary Liquidity
Guarantee Program (12 C.F.R. Part 370).”
SECTION 3.02. Acceleration of
Maturity; Rescission and Annulment. The first paragraph of
Section 502 of the Original Indenture shall not apply to the
Notes and the following paragraph shall hereby be inserted with
respect to the Notes in lieu thereof:
“If an Event of Default
specified in Sections 501(1) or 501(2) occurs with respect to the
Notes and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in aggregate principal amount of
the Notes Outstanding may declare the principal amount, premium, if
any, and accrued interest of all of the Notes, as the case may be,
to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such
declaration such principal amount, premium, if any, and accrued
interest shall become immediately due and
payable.”
6
SECTION 3.03. Acknowledgement of
the FDIC’s Debt Guarantee Program. The Company has not
opted out of the Debt Guarantee Program as set forth in 12 C.F.R.
Part 370 (the “ Debt Guarantee Program ”)
established by the FDIC under its Temporary Liquidity Guarantee
Program.
This debt is guaranteed under the
FDIC Temporary Liquidity Guarantee Program and is backed by the
full faith and credit of the United States. The details of the FDIC
guarantee are provided in the FDIC’s regulations, 12 C.F.R.
Part 370, and at the FDIC’s website, www.fdic.gov/tlgp. The
expiration date of the FDIC’s guarantee is the earlier of the
maturity date of this debt or June 30, 2012.
The security certificate, note or
other instrument evidencing each Note shall bear a legend, upon
which the Representative shall be entitled to rely, to the effect
that such certificate, note or other instrument is guaranteed by
the FDIC under the Debt Guarantee Program.
SECTION 3.04. The Trustee as
Representative of Holders. The Trustee is hereby designated,
and each Holder of the Notes, by its acceptance of a Note, shall be
deemed to have appointed the Trustee as the duly authorized
representative of the Holders for purposes of making claims and
taking other permitted or required actions under the Debt Guarantee
Program (the “ Representative ”). Any Holder may
elect not to be represented by the Representative by providing
written notice of such election to the Representative (it being
understood that such election shall not affect the Trustee’s
capacity hereunder except as the representative of such Holder
under the Debt Guarantee Program). The Company hereby authorizes
and directs the Representative to take all actions on behalf of the
Holders that the Representative is required or empowered to take on
behalf of the Holders pursuant to the Debt Guarantee Program. Until
instructed by Holders of not less than 25% in aggregate principal
amount of the Notes, the Representative shall have no duty or
obligation to take any action which it is empowered but not
required to take and shall have no liability or responsibility for
failure to do so. For avoidance of doubt, the obligations of the
Representative pursuant to Section 3.12 hereto shall be deemed
to be required actions.
SECTION 3.05. Subrogation.
The FDIC shall be subrogated to all of the rights of the Holders
and the Representative under the Notes and the Indenture against
the Company in respect of any amounts paid to the Holders, or for
the benefit of the Holders, by the FDIC pursuant to the Debt
Guarantee Program.
SECTION 3.06. Agreement to
Execute Assignment upon Guarantee Payment. The Holders, by
acceptance of the Notes, hereby authorize and direct the
Representative, at such time as the FDIC shall commence making any
guarantee payments to the Representative for the benefit of the
Holders pursuant to the Debt Guarantee Program, to execute an
assignment in the form attached to each Note pursuant to which the
Representative shall assign to the FDIC its right as Representative
to receive any and all payments from the Company under the Notes,
on behalf of the Holders. The Company hereby consents and agrees
that the FDIC is an acceptable transferee for all or any portion of
the indebtedness hereunder for all purposes of the
7
Notes, and upon any such assignment,
the FDIC shall be deemed the Holder of the Notes, for all purposes
hereof, and the Company hereby agrees to take such reasonable steps
as are necessary to comply with any relevant provision of the Notes
and the Indenture as a result of such assignment.
If a Holder has exercised its right
not to be represented by the Representative, such Holder, by its
acceptance of the Notes, agrees that, at such time as the FDIC
shall commence making any guarantee payments to the Representative
for the benefit of the Holders pursuant to the Debt Guarantee
Program, such Holder shall execute an assignment in the form
attached to each Note pursuant to which the Holder shall assign to
the FDIC its right to receive any and all payments from the Company
under the Notes and the Indenture.
SECTION 3.07. Surrender of Senior
Unsecured Debt Instrument to the FDIC. If, at any time on or
prior to the expiration of the period during which senior unsecured
debt of the Company is guaranteed by the FDIC under the Debt
Guarantee Program (the “ Effective Period ”),
payment in full hereunder shall be made pursuant to the Debt
Guarantee Program on the outstanding principal and accrued interest
to such date of payment, the Holder shall, or the Holder shall
cause the person or entity in possession to, promptly surrender to
the FDIC their Notes or other instrument evidencing such Notes, if
any.
SECTION 3.08. Notice Obligations
to FDIC of Payment Default. If, at any time prior to the
earlier of (a) full satisfaction of the payment obligations in
respect of the Notes, or (b) expiration of the Effective
Period, the Company is in default of any payment obligation
hereunder, including timely payment of any accrued and unpaid
interest on the Notes, without regard to any cure period, the
Representative and the Company covenant and agree that each shall
provide written notice to the FDIC within one (1) Business Day
of such payment default at the address set forth below, or at such
other address or by such other means of delivery as the FDIC may
specify from time to time:
The Federal Deposit Insurance
Corporation
Deputy Director, Receivership
Operations Branch
Division of Resolutions and
Receiverships
Attention: Master
Agreement
550 17th Street, N.W.
Washington, D.C. 20429
Solely for the purpose of this
Section 3.08, “ Business Day ” means any
day that is not a Saturday, a Sunday or a day on which banks are
required or authorized by law to be closed in the State of New
York.
SECTION 3.09. Ranking. Any
indebtedness of the Company to the FDIC arising under
Section 2.03 of the Master Agreement will constitute a senior
unsecured general obligation of the Company, ranking pari
passu with the Notes.
8
SECTION 3.10. No Event of Default
During Time of Timely FDIC Guarantee Payments. There shall not
be deemed to be an Event of Default under the Notes or the
Indenture which would permit or result in the acceleration of
amounts due hereunder, if such Event of Default is due solely to
the failure of the Company to make timely payment hereunder;
provided that the FDIC is making timely guarantee payments
with respect to the Notes, in accordance with 12 C.F.R
Part 370.
Without limiting the foregoing,
under no circumstances shall an Event of Default specified in
Section