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FIRST SUPPLEMENTAL INDENTURE

Addendum or Modifications

FIRST SUPPLEMENTAL INDENTURE | Document Parties: First National Bank of Boston | STATE STREET CORPORATION | US BANK, NATIONAL ASSOCIATION You are currently viewing:
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First National Bank of Boston | STATE STREET CORPORATION | US BANK, NATIONAL ASSOCIATION

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Title: FIRST SUPPLEMENTAL INDENTURE
Governing Law: Massachusetts     Date: 3/10/2009
Industry: Regional Banks     Sector: Financial

FIRST SUPPLEMENTAL INDENTURE, Parties: first national bank of boston , state street corporation , us bank  national association
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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

 

 

  

 

  

Page

ARTICLE I

Definitions

SECTION 1.01.

  

Defined Terms

  

2

ARTICLE II

Establishment of the 2.150% Senior Notes Due 2012

SECTION 2.01.

  

Establishment and Designation of the Notes

  

3

SECTION 2.02.

  

Form of the Notes

  

3

SECTION 2.03.

  

Principal Amount of the Notes

  

3

SECTION 2.04.

  

Interest Rate, Withholding and Additional Amounts of the Notes

  

3

SECTION 2.05.

  

Redemption of the Notes

  

4

SECTION 2.06.

  

Stated Maturity of the Notes

  

4

SECTION 2.07.

  

No Sinking Fund

  

4

SECTION 2.08.

  

Payment and Place of Payment

  

4

SECTION 2.09.

  

Global Securities; Appointment of Depositary for Global Securities

  

4

SECTION 2.10.

  

Defeasance and Covenant Defeasance

  

5

SECTION 2.11.

  

Events of Default

  

5

SECTION 2.12.

  

Supplemental Indenture with Consent of Holders

  

5

SECTION 2.13.

  

Waiver of Certain Covenants

  

6

ARTICLE III

FDIC Guarantee

SECTION 3.01.

  

Events of Default

  

6

SECTION 3.02.

  

Acceleration of Maturity; Rescission and Annulment

  

6

SECTION 3.03.

  

Acknowledgement of the FDIC’s Debt Guarantee Program

  

7

SECTION 3.04.

  

The Trustee as Representative of Holders

  

7

SECTION 3.05.

  

Subrogation

  

7

SECTION 3.06.

  

Agreement to Execute Assignment upon Guarantee Payment

  

7

SECTION 3.07.

  

Surrender of Senior Unsecured Debt Instrument to the FDIC

  

8

SECTION 3.08.

  

Notice Obligations to FDIC of Payment Default

  

8

SECTION 3.09.

  

Ranking

  

8

SECTION 3.10.

  

No Event of Default During Time of Timely FDIC Guarantee Payments

  

9

 

- i -


SECTION 3.11.

  

No Modifications Without FDIC Consent

  

9

SECTION 3.12.

  

Demand Obligations to FDIC upon the Company’s Failure to Pay

  

9

ARTICLE IV

Miscellaneous

SECTION 4.01.

  

Ratification and Incorporation of Original Indenture

  

10

SECTION 4.02.

  

Executed in Counterparts

  

10

SECTION 4.03.

  

No Undertaking or Representation by the Trustee

  

10

SECTION 4.04.

  

Applicability of First Supplemental Indenture

  

10

SECTION 4.05.

  

Further Assurances

  

10

SECTION 4.06.

  

Governing Law

  

11

 

- 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.

 

2


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


 
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