SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) December 16, 1998
THE BEAR STEARNS COMPANIES INC.
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(Exact name of registrant as specified in its charter)
DELAWARE File No. 1-8989 13-3286161
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(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification
incorporation) Number)
245 Park Avenue, New York, New York 10167
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(Address of principal executive offices) (zip code)
Registrant's telephone number, including area code: (212) 272-2000
Not Applicable
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(former name or former address, if changed since last report)
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Item 5. Other Events
Filed herewith are copies of:
(a) Indenture, dated as of December 16, 1998, between The Bear
Stearns Companies Inc. (the "Company") and The Chase Manhattan
Bank (the "Debenture Trustee");
(b) First Supplemental Indenture, dated as of December 16, 1998,
between the Company, and the Debenture Trustee;
(c) 7 1/2% Junior Subordinated Deferrable Interest Debenture due
December 15, 2028, dated December 16, 1998, evidencing
$309,278,375 principal amount of Debentures;
(d) Amended and Restated Trust Agreement, dated as of December 16,
1998, among the Company, as Depositor, The Chase Manhattan Bank,
as Property Trustee, Chase Manhattan Bank Delaware, as Delaware
Trustee, the Administrators named therein and the Holders defined
therein;
(e) Certificate No. P-1, dated December 16, 1998, Evidencing
8,000,000 shares of 7 1/2% Trust Issued Preferred Securities of
Bear Stearns Capital Trust II (Liquidation Amount $25 per
Preferred Security);
(f) Certificate No. P-2, dated December 16, 1998, Evidencing
4,000,000 shares of 7 1/2% Trust Issued Preferred Securities of
Bear Stearns Capital Trust II (Liquidation Amount $25 per
Preferred Security);
(g) Preferred Securities Guarantee Agreement, dated as of December
16, 1998, executed and delivered by the Company, as Guarantor,
and The Chase Manhattan Bank, as Guarantee Trustee, for the
benefit of the Holders (as defined therein) of the Preferred
Securities (as defined therein) of Bear Stearns Capital Trust II.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(a) Financial Statements of Businesses Acquired:
Not applicable.
(b) Pro Form Financial Information:
Not applicable.
(c) Exhibits:
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(4.3) Indenture, dated as of December 16, 1998, between The
Bear Stearns Companies Inc. (the "Company") and The
Chase Manhattan Bank, as Debenture Trustee.
(4.4) First Supplemental Indenture, dated as of December 16,
1998, between the Company and The Chase Manhattan Bank,
as Debenture Trustee;
(4.4.1) 7 1/2% Junior Subordinated Deferrable Interest
Debenture due December 15, 2028, dated December 16,
1998, evidencing $309,278,375 principal amount of
Debentures;
(4.9) Amended and Restated Trust Agreement, dated as of
December 16, 1998, among the Company, as Depositor, The
Chase Manhattan Bank, as Property Trustee, Chase
Manhattan Bank Delaware, as Delaware Trustee, the
Administrators named therein and the Holders defined
therein;
(4.10.1) Certificate No. P-1, dated December 16, 1998,
Evidencing 4,000,000 shares of 7 1/2% Trust Issued
Preferred Securities of Bear Stearns Capital Trust II
(Liquidation Amount $25 per Preferred Security);
(4.10.2) Certificate No. P-2, dated December 16, 1998,
Evidencing 7 1/2% Trust Issued Preferred Securities of
Bear Stearns Capital Trust II (Liquidation Amount $25
per Preferred Security) representing 4,000,000
Preferred Securities;
(4.11) Preferred Securities Guarantee Agreement, dated as of
December 16, 1998, executed and delivered by the
Company, as Guarantor, and The Chase Manhattan Bank, as
Guarantee Trustee, for the benefit of the Holders (as
defined therein) of the Preferred Securities (as
defined therein) of Bear Stearns Capital Trust II.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
THE BEAR STEARNS COMPANIES INC.
By: /s/ Samuel L. Molinaro Jr.
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Samuel L. Molinaro Jr.
Senior Vice President - Finance and
Chief Financial Officer
Dated: December 17, 1998
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THE BEAR STEARNS COMPANIES INC.
FORM 8-K
CURRENT REPORT
EXHIBIT INDEX
Exhibit No. Description
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(4.3) Indenture, dated as of December 16, 1998, between The
Bear Stearns Companies Inc. (the "Company") and The
Chase Manhattan Bank, as Debenture Trustee.
(4.4) First Supplemental Indenture, dated as of December 16,
1998, between the Company and The Chase Manhattan Bank,
as Debenture Trustee.
(4.4.1) 7 1/2% Junior Subordinated Deferrable Interest
Debenture due December 15, 2028, dated December 16,
1998, evidencing $309, 278,375 principal amount of
Debentures.
(4.9) Amended and Restated Trust Agreement, dated as of
December 16, 1998, among the Company, as Depositor, The
Chase Manhattan Bank, as Property Trustee, Chase
Manhattan Bank Delaware, as Delaware Trustee, the
Administrators named therein and the Holders defined
therein.
(4.10.1) Certificate No. P-1, dated December 16, 1998,
Evidencing 4,000,000 shares of 7 1/2% Trust Issued
Preferred Securities of Bear Stearns Capital Trust II
(Liquidation Amount $25 per Preferred Security).
(4.10.2) Certificate No. P-2, dated December 16, 1998,
Evidencing 7 1/2% Trust Issued Preferred Securities of
Bear Stearns Capital Trust II (Liquidation Amount $25
per Preferred Security) representing 4,000,000
Preferred Securities.
(4.11) Preferred Securities Guarantee Agreement, dated as of
December 16, 1998, executed and delivered by the
Company, as Guarantor, and The Chase Manhattan Bank, as
Guarantee Trustee, for the benefit of the Holders (as
defined therein) of the Preferred Securities (as
defined therein) of Bear Stearns Capital Trust II.
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THE BEAR STEARNS COMPANIES INC.
and
THE CHASE MANHATTAN BANK
Trustee
INDENTURE
Dated as of December 16, 1998
JUNIOR SUBORDINATED DEBENTURES
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CROSS-REFERENCE TABLE
Trust
Indenture Indenture
Act Section Section
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310 (a)(1).................................................. 7.09
(a)(2).................................................. 7.09
(a)(3).................................................. Not Applicable
(a)(4).................................................. Not Applicable
(b)..................................................... 7.08, 7.10
(c)..................................................... Not Applicable
311 (a)..................................................... 7.13(a)
(b)..................................................... 7.13(b)
(c)..................................................... Not Applicable
312 (a)..................................................... 5.01, 5.02(a)
(b)..................................................... 5.02(b)
(c)..................................................... 5.02(c)
313 (a)..................................................... 5.04(a)
(b)(1).................................................. Not Applicable
(b)(2).................................................. 5.04(b)
(c)..................................................... 5.04(c)
(d)..................................................... 5.04(d)
314 (a)(1).................................................. 5.03(a)
(a)(2).................................................. 5.03(b)
(a)(3).................................................. 5.03(c)
(a)(4).................................................. 4.06
(b)..................................................... Not Applicable
(c)(1).................................................. 4.06
(c)(2).................................................. 4.05
(c)(3).................................................. Not Applicable
(d)..................................................... Not Applicable
(e)..................................................... 4.05
(f)..................................................... Omitted
315 (a)..................................................... 7.01
(b)..................................................... 6.07, 7.01(b)
(c)..................................................... 7.01
(d)..................................................... 7.01
(e)..................................................... 6.08
316 (a)(1).................................................. 6.06, 8.04
(a)(2).................................................. Omitted
(b)..................................................... 6.04
(c)..................................................... 10.05
317 (a)..................................................... 6.02
(b)..................................................... 4.04
318 (a)..................................................... 15.06
__________
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
a part of this Indenture.
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Terms Defined.....................................2
ARTICLE II
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION
OF TRANSFER AND EXCHANGE OF SECURITIES
SECTION 2.01. Amount, Series and Delivery of Securities................10
SECTION 2.02. Form of Securities and Trustee's Certificate.............14
SECTION 2.03. Denominations of and Payment of Interest on Securities...16
SECTION 2.04. Execution of Securities..................................17
SECTION 2.05. Registration, Transfer and Exchange of Securities........17
SECTION 2.06. Temporary Securities.....................................19
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Securities..........20
SECTION 2.08. Cancellation and Destruction of Surrendered Securities...21
SECTION 2.09. Authenticating Agents....................................21
SECTION 2.10. Deferrals of Interest Payment Dates......................22
SECTION 2.11. Right of Set-Off.........................................23
SECTION 2.12. Shortening or Extension of Stated Maturity...............24
SECTION 2.13. Agreed Tax Treatment.....................................24
ARTICLE III
REDEMPTION OF SECURITIES
SECTION 3.01. Applicability of Article.................................24
SECTION 3.02. Mailing of Notice of Redemption..........................25
SECTION 3.03. When Securities Called for Redemption Become Due and
Payable................................................26
SECTION 3.04. Right of Redemption of Securities Initially Issued
to a Bear Stearns Trust................................27
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ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal of and Interest on Securities.......27
SECTION 4.02. Maintenance of Offices or Agencies for Registration
of Transfer, Exchange and Payment of Securities........28
SECTION 4.03. Appointment to Fill a Vacancy in the Office of
Trustee................................................28
SECTION 4.04. Duties of Paying Agent...................................28
SECTION 4.05. Further Assurances.......................................29
SECTION 4.06. Officers' Certificate as to Defaults; Notices of
Certain Defaults.......................................30
SECTION 4.07. Waiver of Covenants......................................30
SECTION 4.08. Additional Sums..........................................30
SECTION 4.09. Additional Covenants.....................................31
ARTICLE V
SECURITYHOLDERS LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. Company to Furnish Trustee Information as to the
Names and Addresses of Securityholders.................32
SECTION 5.02. Trustee to Preserve Information as to the Names and
Addresses of Securityholders Received by It............32
SECTION 5.03. Annual and Other Reports to Be Filed by Company with
Trustee................................................34
SECTION 5.04. Trustee to Transmit Annual Report to Securityholders.....34
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. Events of Default Defined................................36
SECTION 6.02. Covenant of Company to Pay to Trustee Whole Amount
Due on Securities or Default in Payment of
Interest or Principal..................................39
SECTION 6.03. Application of Moneys Collected by Trustee...............40
SECTION 6.04. Limitation on Suits by Holders of Securities.............41
SECTION 6.05. On Default Trustee May Take Appropriate Action...........42
SECTION 6.06. Rights of Holders of Majority in Principal Amount of
Securities to Direct Trustee and to Waive Default......42
SECTION 6.07. Trustee to Give Notice of Defaults Known to It, but
May Withhold in Certain Circumstances..................43
SECTION 6.08. Requirement of an Undertaking to Pay Costs in
Certain Suits under the Indenture or against the
Trustee................................................44
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ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01. Upon Event of Default Occurring and Continuing,
Trustee Shall Exercise Powers Vested in It, and
Use Same Degree of Care and Skill in Their
Exercise, as a Prudent Man Would Use...................44
SECTION 7.02. Reliance on Documents, Opinions, Etc.....................45
SECTION 7.03. Trustee Not Liable for Recitals in Indenture or in
Securities.............................................46
SECTION 7.04. May Own Securities.......................................47
SECTION 7.05. Moneys Received by Trustee to Be Held in Trust
without Interest.......................................47
SECTION 7.06. Trustee Entitled to Compensation, Reimbursement and
Indemnity..............................................47
SECTION 7.07. Right of Trustee to Rely on Officers' Certificate
Where No Other Evidence Specifically Prescribed........47
SECTION 7.08. Disqualification; Conflicting Interests..................48
SECTION 7.09. Requirements for Eligibility of Trustee..................48
SECTION 7.10. Resignation of Trustee...................................48
SECTION 7.11. Acceptance by Successor Trustee..........................50
SECTION 7.12. Successor to Trustee by Merger, Consolidation or
Succession to Business.................................51
SECTION 7.13. Limitations on Rights of Trustee as a Creditor to
Obtain Payment of Certain Claims within Three
Months Prior to Default or During Default, or to
Realize on Property as such Creditor Thereafter........52
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Evidence of Action by Securityholders....................55
SECTION 8.02. Proof of Execution of Instruments and of Holding of
Securities.............................................56
SECTION 8.03. Who May be Deemed Owners of Securities...................56
SECTION 8.04. Securities Owned by Company or Controlled or
Controlling Persons Disregarded for Certain
Purposes...............................................57
SECTION 8.05. Instruments Executed by Securityholders Bind Future
Holders................................................57
ARTICLE IX
SECURITYHOLDERS' MEETINGS
SECTION 9.01. Purposes for which Meeting May Be Called.................58
SECTION 9.02. Manner of Calling Meetings...............................58
SECTION 9.03. Call of Meeting by Company or Securityholders............58
SECTION 9.04. Who May Attend and Vote at Meetings......................59
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SECTION 9.05. Regulations May Be Made by Trustee.......................59
SECTION 9.06. Manner of Voting at Meetings and Record to be Kept.......60
SECTION 9.07. Exercise of Rights of Trustee, Securityholders and
Holders of Preferred Securities Not to Be Hindered
or Delayed.............................................60
ARTICLE X
SUPPLEMENTAL INDENTURES
SECTION 10.01. Purposes for Which Supplemental Indentures May Be
Entered into without Consent of Securityholders........61
SECTION 10.02. Modification of Indenture with Consent of Holders
of a Majority in Principal Amount of Securities........62
SECTION 10.03. Effect of Supplemental Indentures.......................64
SECTION 10.04. Securities May Bear Notation of Changes by
Supplemental Indentures................................64
SECTION 10.05. Revocation and Effect of Consents.......................64
ARTICLE XI
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 11.01. Company May Consolidate, Etc., on Certain Terms.........65
SECTION 11.02. Successor Corporation Substituted.......................65
SECTION 11.03. Opinion of Counsel to Trustee...........................66
ARTICLE XII
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 12.01. Satisfaction and Discharge of Indenture.................66
SECTION 12.02. Application by Trustee of Funds Deposited for
Payment of Securities..................................67
SECTION 12.03. Repayment of Moneys Held by Paying Agent................67
SECTION 12.04. Repayment of Moneys Held by Trustee.....................67
ARTICLE XIII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 13.01. Incorporators, Stockholders, Officers, Directors
and Employees of Company Exempt from Individual
Liability..............................................68
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ARTICLE XIV
SUBORDINATION OF SECURITIES
SECTION 14.01. Agreement to Subordinate................................68
SECTION 14.02. Obligation of the Company Unconditional.................70
SECTION 14.03. Limitations on Duties to Holders of Senior
Indebtedness of the Company............................70
SECTION 14.04. Notice to Trustee of Facts Prohibiting Payment..........71
SECTION 14.05. Application by Trustee of Moneys Deposited with It......71
SECTION 14.06. Subrogation.............................................71
SECTION 14.07. Subordination Rights Not Impaired by Acts or
Omissions of Company or Holders of Senior
Indebtedness of the Company............................72
SECTION 14.08. Authorization of Trustee to Effectuate
Subordination of Securities............................72
SECTION 14.09. No Payment when Senior Indebtedness in Default..........72
SECTION 14.10. Right of Trustee to Hold Senior Indebtedness of the
Company................................................73
SECTION 14.11. Article XIV Not to Prevent Defaults.....................73
ARTICLE XV
CONVERSION OF SECURITIES
SECTION 15.01. Applicability of Article................................73
SECTION 15.02. Conversion Privilege....................................73
SECTION 15.03. Exercise of Conversion Privilege........................74
SECTION 15.04. Fractional Interests....................................75
SECTION 15.05. Conversion Price........................................75
SECTION 15.06. Adjustment of Conversion Price..........................75
SECTION 15.07. Continuation of Conversion Privilege in Case of
Reclassification, Change, Merger, Consolidation or
Sale of Assets.........................................78
SECTION 15.08. Notice of Certain Events................................79
SECTION 15.09. Taxes on Conversion.....................................80
SECTION 15.10. Company to Provide Stock................................80
SECTION 15.11. Disclaimer of Responsibility for Certain Matters........81
SECTION 15.12. Return of Funds Deposited for Redemption of
Converted Securities...................................81
ARTICLE XVI
MISCELLANEOUS PROVISIONS
SECTION 16.01. Successors and Assigns of Company Bound by
Indenture..............................................81
SECTION 16.02. Acts of Board, Committee or Officer of Successor
Corporation Valid......................................81
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SECTION 16.03. Required Notices or Demands May Be Served by Mail.......82
SECTION 16.04. Officers' Certificate and Opinion of Counsel to Be
Furnished upon Applications or Demands by the
Company................................................82
SECTION 16.05. Payments Due on Saturdays, Sundays, and Holidays........83
SECTION 16.06. Provisions Required by Trust Indenture Act of 1939
to Control.............................................83
SECTION 16.07. Indenture and Securities to be Construed in
Accordance with the Laws of the State of New York......83
SECTION 16.08. Provisions of the Indenture and Securities for the
Sole Benefit of the Parties and the
Securityholders .....................................84
SECTION 16.09. Indenture May be Executed in Counterparts...............84
SECTION 16.10. Securities in Foreign Currencies........................84
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<PAGE>
THIS INDENTURE, dated as of the 16th day of December, 1998 between
THE BEAR STEARNS COMPANIES INC., a corporation duly organized and existing under
the laws of the State of Delaware (hereinafter sometimes referred to as the
"Company"), party of the first part, and THE CHASE MANHATTAN BANK, a banking
corporation duly organized and existing under the laws of the State of New York
(hereinafter sometimes referred to as the "Trustee"), party of the second part,
W I T N E S S E T H:
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the issuance from time to time of its unsecured subordinated
debentures or other evidences of indebtedness (hereinafter referred to as the
"Securities"), without limit as to principal amount, issuable in one or more
series, the amount and terms of each such series to be determined as hereinafter
provided, including, without limitation, Securities issued to evidence loans
made to the Company of the proceeds from the issuance from time to time by one
or more business trusts (each a "Bear Stearns Trust" and collectively, the "Bear
Stearns Trusts" or the "Trusts") of preferred interests in such Trusts (the
"Preferred Securities" which may also be referred to, without limitation, as the
"Capital Securities") and common interests in such Trusts (the "Common
Securities," and collectively with the Preferred Securities, the "Trust
Securities"); to be authenticated by the certificate of the Trustee; and, to
provide the terms and conditions upon which the Securities are to be
authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture; and
WHEREAS, all acts and things necessary to make the Securities when
executed by the Company and authenticated and delivered by the Trustee as in
this Indenture provided, the valid, binding and legal obligations of the
Company, and to constitute these presents a valid indenture and agreement
according to its terms, have been done and performed and the execution of this
Indenture and the issue hereunder of the Securities have in all respects been
duly authorized, and the Company, in the exercise of the legal rights and power
vested in it, executes this Indenture and proposes to make, execute, issue and
deliver the Securities;
NOW, THEREFORE, in order to declare the terms and conditions upon
which the Securities are authenticated, issued and delivered, and in
consideration of the premises and of the purchase and acceptance of the
Securities by the holders thereof, the Company covenants and agrees with the
Trustee, for the equal and proportionate benefit of the respective holders from
time to time of the Securities or of series thereof, as follows:
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Terms Defined.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the singular;
(b) All other terms used herein which are defined in the Trust
Indenture Act of 1939, as amended, either directly or by reference therein, have
the meanings assigned to them therein;
(c) All accounting terms used herein and not expressly defined
herein shall 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 which are generally accepted at the date
or time of such computation; and
(d) The terms "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Additional Interest" shall mean the interest, if any, that shall
accrue on any interest on the Securities of any series the payment of which has
not been made on the applicable interest payment date and which shall accrue at
the rate per annum specified or determined as specified in such Security.
"Additional Sums" shall have the meaning specified in Section
4.08.
"Administrator" shall mean, in respect of any Bear Stearns Trust
each Person identified as an "Administrator" in the related Trust Agreement,
solely in such Person's capacity as Administrator of such Bear Stearns Trust
under such Trust Agreement and not in such Person's individual capacity, or any
successor administrative trustee appointed as therein provided.
"Authenticating Agent" shall mean any Authenticating Agent appointed
by the Trustee pursuant to Section 2.09.
"Authorized Newspaper" shall mean a newspaper in the Borough of
Manhattan, The City of New York, State of New York, each of which is printed in
the English language and customarily published at least once a day for at least
five days in each calendar week and of general circulation in such city.
Whenever successive publications are required to be made in an Authorized
Newspaper, the successive publications may be made in the same or in a
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different newspaper meeting the foregoing requirements and in each case on any
day of the week. If it is impossible or, in the opinion of the Trustee,
impracticable to publish any notice in the manner herein provided, then such
publication in lieu thereof as shall be made with the approval of the Trustee
shall constitute a sufficient publication of such notice.
"Bear Stearns Guarantee" shall mean the guarantee by the Company of
distributions on the Preferred Securities of a Bear Stearns Trust to the extent
provided in the applicable Guarantee Agreement.
"Bear Stearns Trust" shall mean a Delaware business trust, or any
similar trust created for the purpose of issuing Preferred Securities in
connection with the issuance of Securities under this Indenture of which the
Company is the sponsor.
"Board of Directors," when used with reference to the Company, shall
mean the Board of Directors of the Company or the Executive Committee or any
other committee of or created by the Board of Directors of the Company duly
authorized to act hereunder.
"Business Day" shall mean any day which is not a Saturday or Sunday
and which in the City of New York is neither a legal holiday nor a day on which
banking institutions are authorized by law or executive order to close or a day
on which the corporate trust office of the Trustee is closed for business.
"Capital Stock" shall mean shares of capital stock of any class of
any corporation whether now or hereafter authorized regardless of whether such
capital stock shall be limited to a fixed sum or percentage in respect of the
rights of the holders thereof to participate in dividends and in the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up.
"Commission" shall mean the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act of 1939, then the body performing such duties on such
date.
"Common Stock" shall mean the common stock, par value $1.00 per
share, of the Company.
"Company" shall mean The Bear Stearns Companies Inc., a corporation
duly organized and existing under the laws of the State of Delaware and, subject
to the provisions of Article XI, shall also include its successors and assigns.
"Compounded Interest" shall mean with respect to any series of
Securities any interest designated as Compounded Interest with respect to the
Securities of such series as contemplated by Section 2.01.
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"Depositary" shall mean, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more global
Securities, the person designated as Depositary by the Company pursuant to
Section 2.01 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter the term "Depositary"
shall mean or include each person who is then a Depositary hereunder and if at
any time there is more than one such person, the term "Depositary" as used with
respect to the Securities of any series shall mean the Depositary with respect
to the Securities of such series.
"Distributions," with respect to the Trust Securities issued by a
Bear Stearns Trust shall mean amounts payable in respect of such Trust
Securities as provided in the related Trust Agreement and referred to therein as
"Distributions."
"Event of Default" with respect to Securities of any series shall
mean any event specified as such in Section 6.01 and any other event as may be
established with respect to the Securities of such series as contemplated by
Section 2.01.
"Existing Indenture" shall mean the Indenture, dated as of January
29, 1997, between the Company and The Chase Manhattan Bank, as trustee, as
amended or supplemented from time to time.
"Extension Period" has the meaning specified in Section 2.10.
"Guarantee Agreement" shall mean the guarantee agreement executed by
the Company of distributions on the Preferred Securities of a Bear Stearns Trust
to the extent provided in any Bear Stearns Guarantee.
"Indenture" shall mean this instrument as originally executed, or,
if amended or supplemented as herein provided, then as so amended or
supplemented, and shall include the form and terms of particular series of
Securities established as contemplated by Sections 2.01 and 2.02.
"Indebtedness" or "indebtedness" shall mean with respect to any
person, whether recourse is to all or a portion of the assets of such person and
whether or not contingent, (i) every obligation of such person for money
borrowed; (ii) every obligation of such person evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in connection
with the acquisition of property, assets or businesses; (iii) every
reimbursement obligation of such person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
person; (iv) every obligation of such person issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business); (v) every
capital lease obligation of such person; (vi) every obligation of such person
for claims in respect of derivative products such as interest and foreign
exchange rate contracts, commodity contracts and similar arrangements; and (vii)
and every obligation of the type referred to in clauses (i) through (vi) of
another person and all dividends of another person the payment of which, in
either case, such person has guaranteed or is responsible or liable, directly or
indirectly, as obligor or otherwise.
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"Investment Company Event" shall mean the receipt by a Bear Stearns
Trust of an Opinion of Counsel (as defined in the relevant Trust Agreement)
experienced in such matters to the effect that, as a result of the occurrence of
a change in law or regulation or a change (including any announced proposed
change) in interpretation or application of law or regulation by any legislative
body, court, governmental agency or regulatory authority, there is more than an
insubstantial risk that such Bear Stearns Trust is or will be considered an
"investment company" that is required to be registered under the 1940 Act, which
change or proposed change becomes effective or would become effective, as the
case may be, on or after the date of the issuance of the Preferred Securities of
such Bear Stearns Trust.
"Maturity" when used with respect to any Security shall mean the
date on which the principal of such Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"1940 Act" shall mean the Investment Company Act of 1940, as
amended.
"Officers' Certificate" shall mean a certificate signed by the
Chairman of the Board, any Vice Chairman of the Board, the President, any Vice
Chairman, any Executive Vice President, the Chief Operating Officer or the Chief
Financial Officer of the Company (whether or not designated by a number or a
word or words added before or after the title Vice President) and by the
Treasurer or an Assistant Treasurer, Controller or the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee. Each such certificate
shall include the statements provided for in Section 16.04, if and to the extent
required by the provisions thereof and will comply with Section 314 of the Trust
Indenture Act of 1939.
"Opinion of Counsel" shall mean an opinion in writing signed by
legal counsel, who shall be satisfactory to the Trustee, and who may be an
employee of, or counsel to, the Company and delivered to the Trustee. Each such
opinion shall include the statements provided for in Section 16.04, if and to
the extent required by the provisions thereof and will comply with Section 314
of the Trust Indenture Act of 1939.
"Original Issue Date" shall mean the first date of issuance of each
Security.
"Original Issue Discount Security" shall mean any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon declaration pursuant to Section 6.01.
"Paying Agent" shall mean the Trustee or any Person authorized by
the Company to pay the principal or interest on any Securities on behalf of the
Company.
"Person" or "person" shall mean any individual, corporation,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Preferred Securities" shall mean undivided beneficial interests in
the assets of a Bear Stearns Trust which rank pari passu with Common Securities
issued by such Bear Stearns
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Trust; provided, however, that upon the occurrence of an Event of Default (as
defined in the Trust Agreement with respect to such Bear Stearns Trust), the
rights of holders of such Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of such Preferred Securities.
"Preferred Securities Guarantee" shall mean, in respect of any Bear
Stearns Trust, any guarantee that the Company may enter into with The Chase
Manhattan Bank or other Persons that operates directly or indirectly for the
benefit of holders of Preferred Securities of such Bear Stearns Trust.
"Principal," wherever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any."
"Property Trustee" shall mean, in respect of any Bear Stearns Trust,
the commercial bank or trust company identified as the "Property Trustee" in the
related Trust Agreement, solely in its capacity as Property Trustee of such Bear
Stearns Trust under such Trust Agreement and not in its individual capacity, or
its successor in interest in such capacity, or any successor property trustee
appointed as therein provided.
"Ranking junior to the Securities" when used with respect to any
obligation of the Company shall mean any obligation of the Company which (a)
ranks junior to and not equally with or prior to the Securities (or any other
obligations of the Company ranking on a parity with the Securities) in right of
payment upon the happening of any event of the kind specified in the first
sentence of the first paragraph of Section 14.01, and (b) is specifically
designated as ranking junior to the Securities by express provision in the
instrument creating or evidencing such obligation.
The securing of any obligations of the Company, otherwise ranking
junior to the Securities, shall be deemed to prevent such obligations from
constituting obligations ranking junior to the Securities.
"Ranking on a parity with the Securities" when used with respect to
any obligation of the Company shall mean any obligation of the Company which (a)
ranks equally with and not prior to the Securities in right of payment upon the
happening of any event of the kind specified in the first sentence of the first
paragraph of Section 14.01, including without limitation, the obligation of the
Company under the EPICs Loan Agreement (as such term is defined within the
definition of "Senior Indebtedness of the Company" below) and (b) is
specifically designated as ranking on a parity with the Securities by express
provision in the instrument creating or evidencing such obligation.
The securing of any obligations of the Company, otherwise ranking on
a parity with the Securities, shall not be deemed to prevent such obligations
from constituting obligations ranking on a parity with the Securities.
"Register" shall have the meaning specified in Section 2.05.
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"Resolution of the Company" shall mean a resolution of the Company,
in the form of a resolution of the Board of Directors or in the form of a
resolution of senior officers of the Company pursuant to the Bylaws,
authorizing, ratifying, setting forth or otherwise validating agreements,
execution and delivery of documents, the issuance, form and terms of securities,
or any other actions or proceedings pursuant or with respect to this Indenture.
"Responsible Officer," when used with respect to the Trustee, shall
mean the Chairman and Vice Chairman of the Board of Directors, the President,
the Chairman and vice chairman of the executive committee of the Board of
Directors, every Vice President or officer senior thereto, every assistant Vice
President, the Secretary, every Assistant Secretary, the Treasurer, every
assistant Treasurer, every Corporate Trust Officer, every Assistant Corporate
Trust Officer, and every other officer and assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his knowledge of, and familiarity with, a
particular subject.
"Rights Plan" shall mean a plan of the Company providing for the
issuance by the Company to all holders of its Common Stock of rights entitling
the holders thereof to subscribe for or purchase shares of Common Stock or any
class or series of preferred stock, which rights (i) are deemed to be
transferred with such shares of Common Stock, (ii) are not exercisable and (iii)
are also issued in respect of future issuances of Common Stock, in each case
until the occurrence of a specified event or events.
"Security" or "Securities" shall mean any security or securities of
the Company, as the case may be, without regard to series, authenticated and
delivered under this Indenture.
"Outstanding," when used with reference to Securities, shall,
subject to the provisions of Section 8.04, mean as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption
of which moneys in the necessary amount shall have been deposited in trust with
the Trustee or with any paying agent (other than the Company) or shall have been
set aside and segregated in trust by the Company (if the Company shall act as
its own paying agent), provided that such Securities shall have reached their
Stated Maturity or, if such Securities are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as in Article III
provided, or provision satisfactory to the Trustee shall have been made for
giving such notice; and
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered or which have been paid
pursuant to the terms of Section 2.07 unless proof satisfactory to the Trustee
is presented that any such Securities are held by
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persons in whose hands any of such Securities is a valid, binding and legal
obligation of the Company.
In determining whether the holders of the requisite principal amount
of outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of an
Original Issue Discount Security that shall be deemed to be outstanding for such
purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the maturity thereof pursuant to Section 6.01.
"Securityholder," "holder of Securities," "registered holder" or
other similar term, shall mean any person who shall at the time be the
registered holder of any Security or Securities on the Register kept for that
purpose in accordance with the provisions of this Indenture.
"Senior Indebtedness of the Company" shall mean the principal of and
premium, if any, and interest, if any (including interest accruing on or after
the filing of any petition in bankruptcy or for reorganization relating to the
Company whether or not such claim for post-petition interest is allowed in such
proceeding), on Indebtedness, whether incurred on or prior to the date of the
Indenture or thereafter incurred, unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that such obligations are not superior in right of payment to the Securities or
to other Indebtedness which is pari passu with, or subordinated to, the
Securities; provided, however, that Senior Indebtedness shall not be deemed to
include (i) any Indebtedness of the Company which when incurred and without
respect to any election under Section 1111(b) of the federal Bankruptcy Code was
without recourse to the Company, (ii) any Indebtedness of the Company to any of
its subsidiaries, (iii) Indebtedness to any employee of the Company, (iv)
Indebtedness which by its terms is subordinated to trade accounts payable or
accrued liabilities arising in the ordinary course of business to the extent
that payments made to the holders of such Indebtedness by the holders of the
Securities as a result of the subordination provisions of the Indenture would be
greater than such payments otherwise would have been as a result of any
obligation of such holders of such Indebtedness to pay amounts over to the
obligees on such trade accounts payable or accrued liabilities arising in the
ordinary course of business as a result of subordination provisions to which
such Indebtedness is subject, and (v) any other debt securities issued pursuant
to the Indenture or the Existing Indenture. The Securities of all series will
rank pari passu with, and will not be superior in right of payment to, the
obligation of the Company under the Loan Agreement (the "EPICS Loan Agreement")
dated as of February 24, 1994, between the Company and Bear Stearns Finance LLC
("BS Finance") in the aggregate principal amount of $189,875,000 (the "EPICS
Loan") entered into in connection with the issuance by BS Finance of 6,000,000
shares of 8% Exchangeable Preferred Income Cumulative Shares ("EPICS"), Series A
(having an aggregate liquidation preference of $150,000,000).
"Special Event" shall mean an Investment Company Event or a Tax
Event.
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"Special Interest" shall mean with respect to any series of
Securities any interest designated as Special Interest with respect to the
Securities of such series as contemplated by Section 2.01.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof or interest thereon shall mean the date
specified pursuant to the terms of such Security as the date on which the
principal of such Security or such installment of interest is due and payable in
the case of such principal, as such date may be shortened or extended as
provided pursuant to the terms of such Security and this Indenture.
"Subsidiary" shall mean a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Tax Event" shall mean the receipt by a Bear Stearns Trust of an
Opinion of Counsel (as defined in the relevant Trust Agreement) experienced in
such matters to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which pronouncement or
decision is announced on or after the date of issuance of the Preferred
Securities of such Bear Stearns Trust, there is more than an insubstantial risk
that (i) the Bear Stearns Trust is, or will be within 90 days of the date of
such Opinion of Counsel, subject to United States federal income tax with
respect to income received or accrued on the corresponding series of Securities
issued by the Company to such Bear Stearns Trust, (ii) interest payable by the
Company on such corresponding series of Securities is not, or within 90 days of
the date of such Opinion of Counsel, will not be, deductible, in whole or in
part, for United States federal income tax purposes, or (iii) the Bear Stearns
Trust is, or will be within 90 days of the date of such Opinion of Counsel,
subject to more than a de minimis amount of taxes, duties or governmental
charges.
"Trust Agreement" shall mean any Trust Agreement governing any Bear
Stearns Trust whether now existing or created in the future, relating to the
Securities of any series.
"Trustee" shall mean The Chase Manhattan Bank and, subject to the
provisions of Article VII, shall also include its successors. The term
"principal office" of the Trustee shall mean the corporate trust office of the
Trustee at which the corporate trust business of the Trustee shall, at any
particular time, be principally administered. The present address of the office
at which the corporate trust business of the Trustee is administered is 450 West
33rd Street, 15th Floor, New York, New York 10001.
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"Trust Indenture Act of 1939" shall mean the Trust Indenture Act of
1939, as amended by the Trust Indenture Reform Act of 1990, as in force at the
date as of which this Indenture was originally executed.
"Trust Securities" shall mean the Common Securities and Preferred
Securities of a Bear Stearns Trust.
ARTICLE II
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION OF
TRANSFER AND EXCHANGE OF SECURITIES
SECTION 2.01. Amount, Series and Delivery of Securities.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. The terms of
each series (which terms shall not be inconsistent with the provisions of this
Indenture) including:
(1) The designation of the Securities of the series (which
shall distinguish the Securities of the series from all other Securities
and which shall include the word "subordinated" or a word of like
meaning);
(2) Any limit upon the aggregate principal amount of the
Securities of the series which may be executed, authenticated and
delivered under this Indenture; provided, however, that nothing contained
in this Section or elsewhere in this Indenture or in the Securities or in
such resolution or in such certificate is intended to or shall limit
execution by the Company or authentication and delivery by the Trustee of
Securities under the circumstances contemplated by Sections 2.05, 2.06,
2.07, 3.02, 3.03 and 10.04;
(3) The date or dates (if any) on which the principal of the
Securities of the series is payable;
(4) The rate or rates at which the Securities of the series
shall bear interest, if any, including Additional Sums, Additional
Interest, Compounded Interest and Special Interest, if any, the date or
dates from which such interest shall accrue, the dates on which such
interest shall be payable and the record date for the interest payable on
any interest payment date and the right to defer the payment of interest
in accordance with Section 2.10;
(5) The place or places where Securities of the series may be
presented for payment and for the other purposes provided in Section 4.02;
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(6) Any price or prices at which, any period or periods within
which, and any terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(7) The type or types (if any) of Capital Stock of the Company
into which, any period or periods within which, and any terms and
conditions upon which Securities of the series may be made payable,
converted, exchanged in whole or in part, at the option of the holder or
of the Company;
(8) If other than denominations of $1,000 and any whole
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(9) If other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to
Section 6.01;
(10) If other than such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public
or private debts, the coin or currency (which may be a composite currency)
in which payment of the principal of (and premium, if any) and interest,
if any, on the Securities of that series shall be payable;
(11) If the principal of (and premium, if any) or interest, if
any, on the Securities of that series are to be payable, at the election
of the Company or a holder thereof, in a coin or currency (including a
composite currency) other than that in which the Securities are stated to
be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(12) If the amounts of payments of principal of (and premium,
if any) or interest, if any, on the Securities of the series may be
determined with reference to an index based on a coin or currency
(including a composite currency) other than that in which the Securities
are stated to be payable, the manner in which such amounts shall be
determined;
(13) If the Securities of the series are payable at maturity
or upon earlier redemption in Capital Stock, the terms and conditions upon
which such payment shall be made;
(14) The person or persons who shall be registrar for the
Securities of the series, and the place or places where the Register of
the Securities of the series shall be kept;
(15) Any Events of Default with respect to the Securities of a
particular series, if not set forth herein;
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(16) Whether any Securities of the series are to be issuable
in global form with or without coupons, and, if so, the Depositary for
such global Securities and whether beneficial owners of interests in any
such global Security may exchange such interests for definitive Securities
of such series and of like tenor of any authorized form and denomination
and the circumstances under which, and the place or places where, any such
exchanges may occur, if other than in the manner provided in Section 2.05;
(17) The form of Trust Agreement and Guarantee Agreement, if
applicable;
(18) If applicable, the relative degree to which Securities of
the series shall be senior to or be subordinated to other series of such
Securities or other indebtedness of the Company in right of payment,
whether such other series of Securities or other indebtedness are
outstanding or not; and
(19) Whether the Securities of the series are to be issued
pursuant to an exemption from registration under the Securities Act; and
(20) Any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture);
or in any case, the method for determining such terms, the persons authorized to
determine such terms and the limits, if any, within which any such determination
of such terms is to be made shall either be established in or pursuant to a
Resolution of the Company and set forth in an Officers' Certificate, or set
forth in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series.
The Securities of all series shall be subordinate to Senior
Indebtedness of the Company as provided in Article XIV. The applicable Officers'
Certificate or supplemental indenture may provide that Securities of any
particular series may be issued at various times, with different dates on which
the principal or any installment of principal is payable, with different rates
of interest, if any, or different methods by which interest may be determined,
with different dates from which such interest shall accrue, with different dates
on which such interest may be payable or with any different terms other than
Events of Default but all such Securities of a particular series shall for all
purposes under this Indenture including, but not limited to, voting and Events
of Default, be treated as Securities of a single series.
If any of the terms of the series are established by action taken
pursuant to a Resolution of the Company, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate or supplemental indenture setting forth the terms of the
series.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication by it, and the Trustee shall
thereupon authenticate and deliver said
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Securities to or upon the written order of the Company, signed by its Chairman
of the Board, any Vice Chairman of the Board, its President, any Vice Chairman,
any Executive Vice President, the Chief Operating Officer or the Chief Financial
Officer of the Company, and by its Treasurer or an Assistant Treasurer,
Controller or its Secretary or an Assistant Secretary, without any further
corporate action by the Company. If the form or terms of the Securities of the
series have been established in or pursuant to one or more Resolutions of the
Company and set forth in an Officers' Certificate or set forth in one or more
indentures supplemental hereto, as permitted by this Section and Section 2.02,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 7.01) shall be fully protected in
relying upon:
(a) an Opinion of Counsel stating:
(i) If the form or terms of such Securities have been
established by or pursuant to Resolutions of the Company as permitted by
Section 2.02 and set forth in an Officers' Certificate, that such form and
terms have been established in conformity with the provisions of this
Indenture;
(ii) If the form or terms of such Securities have been
established by or pursuant to a Resolution of the Company and set forth in
one or more indentures supplemental hereto as permitted by Section 2.02,
that such form and terms have been established in conformity with the
provisions of this Indenture;
(iii) That such Securities, when authenticated and delivered
by the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute legal,
valid and binding obligations of the Company, enforceable in accordance
with their terms, entitled to the benefits of the Indenture, subject to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting the enforcement of creditors'
rights and to general equity principles;
(iv) If the form or terms of such Securities provide for the
conversion of such Securities into shares of Capital Stock of the Company,
or the payment in Capital Stock upon maturity or earlier redemption of the
Securities, that the Company has reserved a number of shares of Capital
Stock sufficient for issuance upon such conversion or payment, and such
shares of Capital Stock are fully paid and nonassessable; and
(v) Such other matters as the Trustee may reasonably request.
(b) An Officers' Certificate setting forth the form and terms of
the Securities of such series pursuant to Section 2.01 and Section 2.02 hereof
(but only if the form and terms of the Securities of such series are not set
forth in one or more supplemental indentures hereto) and stating that all
conditions precedent provided for in this Indenture relating to the
authentication and delivery of such Securities have been complied with, that no
Event of
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Default with respect to any series of Securities has occurred and is continuing
and that the issuance of such Securities is not and will not result in (i) an
Event of Default or an event or condition which, upon the giving of notice (or
the acquisition of knowledge) or the lapse of time or both, would become an
Event of Default or (ii) a default under the provisions of any other instrument
or agreement by which the Company is bound.
The Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
If all the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver either an Opinion of Counsel or an
Officers' Certificate at the time of issuance of each Security, provided that
such Opinion of Counsel and Officers' Certificate, with appropriate
modifications, are instead delivered at or prior to the time of issuance of the
first Security of such series.
Each Security shall be dated the date of its authentication.
SECTION 2.02. Form of Securities and Trustee's Certificate.
The Securities of each series shall be substantially of the tenor
and purport as shall be authorized in or pursuant to a Resolution of the Company
and set forth in an Officers' Certificate or set forth in an indenture or
indentures supplemental hereto in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements thereon as the
Company may deem appropriate and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Securities may be listed, or to conform to usage. If the
form of Securities of any series is authorized by action taken pursuant to a
Resolution of the Company, a copy of an appropriate record of such action shall
be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate contemplated by Section 2.01 setting forth the terms of the series.
The Securities may be printed, lithographed or fully or partly
engraved.
The Trustee's certificate of authentication shall be in
substantially the following form:
"This is one of the Securities, of the series designated therein,
referred to in the within-mentioned Indenture.
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THE CHASE MANHATTAN BANK,
as Trustee
By _____________________________
Authorized Officer"
If Securities of a series are issuable in global form, as specified
pursuant to Section 2.01, then, notwithstanding clause (8) of Section 2.01 and
the provisions of Section 2.03, such Security shall represent such of the
outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of outstanding Securities
from time to time endorsed thereon and that the aggregate amount of outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount,
or any increase or decrease in the amount, of outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given
by such person or persons as shall be specified in such Security or by the
Company. Subject to the provisions of Section 2.04 and, if applicable, Section
2.06, the Trustee shall deliver and redeliver any Security in global form in the
manner and upon written instructions given by the person or persons specified in
such Security or by the Company. Any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form after the
original issuance of the Securities of such series shall be in writing but need
not comply with Section 16.04 and need not be accompanied by an Opinion of
Counsel.
Unless otherwise specified pursuant to Section 2.01, payment of
principal of and any premium and any interest on any Security in global form
shall be made to the person or persons specified therein.
The owners of beneficial interests in any global Security shall have
no rights under this Indenture with respect to any global Security held on their
behalf by a Depositary, and such Depositary may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the sole holder and
owner of such global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by a Depositary, or impair, as between a
Depositary and its participants in any global Security, the operation of
customary practices governing the exercise of the rights of a holder of a
Security of any series, including, without limitation, the granting of proxies
or other authorization of participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action that a holder
is entitled to give or take under this Indenture.
Neither the Company, the Trustee nor any Authenticating Agent will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests of a global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
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Each Depositary designated pursuant to Section 2.01 for a global
Security must, at the time of its designation and at all times while it serves
as Depositary, be a clearing agency registered under the Securities Exchange Act
of 1934, as amended, and any other applicable statute or regulation.
SECTION 2.03. Denominations of and Payment of Interest on
Securities.
The Securities of each series shall be issuable as fully registered
Securities without coupons in such denominations as shall be specified as
contemplated by Section 2.01. In the absence of any such provisions with respect
to the Securities of any series, the Securities of such series shall be issuable
in denominations of $1,000 and integral multiples of $1,000 in excess thereof.
If the Securities of any series shall bear interest, each Security
of such series shall bear interest from the applicable date at the rate or rates
per annum, and such interest shall be payable on the dates, specified on, or
determined in the manner provided for in, the Security. The person in whose name
any Security is registered at the close of business on any record date (as
hereinbelow defined) for the Security with respect to any interest payment date
for such Security shall be entitled to receive the interest payable thereon on
such interest payment date notwithstanding the cancellation of such Security
upon any registration of transfer, exchange or conversion thereof subsequent to
such record date and prior to such interest payment date, unless such Security
shall have been called for redemption on a date fixed for redemption subsequent
to such record date and prior to such interest payment date, or unless the
Company shall default in the payment of interest due on such interest payment
date on such Security, in which case such defaulted interest shall be paid to
the person in whose name such Security (or any Security or Securities issued
upon registration of or exchange thereof) is registered at the close of business
on the record date for the payment of such defaulted interest, or except as
otherwise specified as contemplated by Section 2.01. The term "record date" as
used in this Section with respect to any regular interest payment date for any
Security shall mean such day or days as shall be specified as contemplated by
Section 2.01; provided, however, that in the absence of any such provisions with
respect to any Security, such term shall mean: (1) the last day of the calendar
month next preceding such interest payment date if such interest payment date is
the fifteenth day of a calendar month; or (2) the fifteenth day of the calendar
month next preceding such interest payment date if such interest payment date is
the first day of a calendar month; provided, further, that (except as otherwise
specified as contemplated by Section 2.01) if the day which would be the record
date as provided herein is not a Business Day, then it shall mean the Business
Day next preceding such day. Such term, as used in this Section, with respect to
the payment of any defaulted interest on any Security shall mean (except as
otherwise specified as contemplated by Section 2.01) the fifth day next
preceding the date fixed by the Company for the payment of defaulted interest,
established by notice given by first class mail by or on behalf of the Company
to the holder of such Security not less than 10 days preceding such record date,
or, if such fifth day is not a Business Day, the Business Day next preceding
such fifth day.
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SECTION 2.04. Execution of Securities.
The Securities shall be signed on behalf of the Company, manually or
in facsimile, by its Chairman of the Board or any Vice Chairman of the Board, or
its President or any Vice Chairman or any Executive Vice President, the Chief
Operating Officer or the Chief Financial Officer of the Company and by its
Treasurer or an Assistant Treasurer, the Controller or its Secretary or an
Assistant Secretary under its corporate seal, which may be affixed thereto or
printed, engraved or otherwise reproduced thereon, by facsimile or otherwise.
Only such Securities as shall bear thereon a certificate of authentication
substantially in the form recited herein, executed by or on behalf of the
Trustee manually by an authorized officer, shall be entitled to the benefits of
this Indenture or be valid or obligatory for any purpose. Such certificate by
the Trustee upon any Security executed by the Company shall be conclusive
evidence that the Security so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the benefits of this
Indenture. Typographical or other errors or defects in the seal or facsimile
signature on any Security or in the text thereof shall not affect the validity
or enforceability of such Security if it has been duly authenticated and
delivered by the Trustee.
In case any officer of the Company who shall have signed any of the
Securities, manually or in facsimile, shall cease to be such officer before the
Securities so signed shall have been authenticated and delivered by the Trustee,
or disposed of by the Company, such Securities nevertheless may be authenticated
and delivered or disposed of as though the person who signed such Securities had
not ceased to be such officer of the Company; and any Security may be signed on
behalf of the Company, manually or in facsimile, by such persons as, at the
actual date of the execution of such Security, shall be the proper officers of
the Company, although at the date of the execution of this Indenture any such
person was not such officer.
SECTION 2.05. Registration, Transfer and Exchange of Securities.
Securities of any series (other than a global Security, except as
set forth below) may be exchanged for a like aggregate principal amount of
Securities of the same series of the same tenor and terms of other authorized
denominations. Securities to be exchanged shall be surrendered at the offices or
agencies to be maintained by the Company in accordance with the provisions of
Section 4.02 and the Company shall execute and the Trustee shall authenticate
and deliver, or cause to be authenticated and delivered, in exchange therefor
the Security or Securities which the Securityholder making the exchange shall be
entitled to receive.
The Company shall keep, at one of the offices or agencies to be
maintained by the Company in accordance with the provisions of Section 4.02 with
respect to the Securities of each series, a Register (herein defined as the
"Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall register the Securities of such series and the
transfer of Securities of such series as in this Article provided. Such Register
shall be in written form or in any other form capable of being converted into
written form within a reasonable time. At all reasonable times the Register
shall be open for inspection by the Trustee and any registrar of the Securities
of such series other than the Trustee. Upon due
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presentment for registration of transfer of any Security of any series at the
offices or agencies of the Company to be maintained by the Company in accordance
with Section 4.02 with respect to the Securities of such series, the Company
shall execute and register and the Trustee shall authenticate and deliver in the
name of the transferee or transferees a new Security or Securities of the same
series of like tenor and terms for a like aggregate principal amount of
authorized denominations.
Every Security issued upon registration of transfer or exchange of
Securities pursuant to this Section shall be the valid obligation of the
Company, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Security or Securities surrendered upon registration of such
transfer or exchange.
All Securities of any series presented or surrendered for exchange,
registration of transfer, redemption, conversion or payment shall, if so
required by the Company or any registrar of the Securities of such series, be
accompanied by a written instrument or instruments of transfer, in form
satisfactory to the Company and such registrar, duly executed by the registered
holder or by his attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto.
The Company shall not be required to exchange or register the
transfer of (a) any Securities of any series during a period beginning at the
opening of business fifteen days before the day of the mailing of a notice of
redemption of outstanding Securities of such series and ending at the close of
business on the day of such mailing, or (b) any Securities or portions thereof
called or selected for redemption, except, in the case of Securities called for
redemption in part, the portion thereof not so called for redemption.
Notwithstanding any other provision of this Section, unless and
until it is exchanged in whole or in part for Securities in definitive form, a
global Security representing all or a portion of the Securities of a series may
not be transferred, except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary for such series or a nominee of such successor
Depositary.
Notwithstanding the foregoing, except as otherwise specified
pursuant to Section 2.01, any global Security shall be exchangeable pursuant to
this Section only as provided in this paragraph. If at any time the Depositary
for the Securities of a series notifies the Company that it is unwilling or
unable to continue as Depositary for the Securities of such series, or if at any
time the Depositary for the Securities of such series shall no longer be
eligible to so act, the Company shall appoint a successor Depositary with
respect to the Securities of such series. If (a) a successor Depositary for the
Securities of such series is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such ineligibility (thereby
automatically making the Company's election pursuant to Section 2.01 no longer
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effective with respect to the Securities of such series), (b) the beneficial
owners of interests in a global Security are entitled to exchange such interests
for Securities of such series and of the same tenor and terms, as specified
pursuant to Section 2.01, or (c) the Company in its sole discretion determines
that the Securities of any series issued in the form of one or more global
Securities shall no longer be represented by such global Security or Securities,
then without unnecessary delay, but, if appropriate, in any event not later than
the earliest date on which such interest may be so exchanged, the Company shall
deliver to the Trustee definitive Securities in aggregate principal amount equal
to the principal amount of such global Security, executed by the Company. On or
after the earliest date on which such interests are or may be so exchanged, such
global Security shall be surrendered by the Depositary to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities upon payment by the beneficial owners of such
interest, at the option of the Company, of a service charge for such exchange
and of a proportionate share of the cost of printing such definitive Securities,
and the Trustee shall authenticate and deliver, (a) to each person specified by
the Depositary in exchange for each portion of such global Security, an equal
aggregate principal amount of definitive Securities of the same series of
authorized denominations and of the same tenor and terms as the portion of such
global Security to be exchanged, and (b) to such Depositary a global Security in
a denomination equal to the difference, if any, between the principal amount of
the surrendered global Security and the aggregate principal amount of definitive
Securities delivered to holders thereof; provided, however, that no such
exchanges may occur during a period beginning at the opening of business 15
Business Days before any selection of Securities of that series to be redeemed
and ending on the relevant redemption date. If a Security is issued in exchange
for any portion of a global Security after the close of business at the office
or agency where such exchange occurs on (i) any record date and before the
opening of business at such office or agency on the relevant interest payment
date, or (ii) any record date for the payment of defaulted interest and before
the opening of business at such office or agency on the related proposed date
for payment of defaulted interest, then interest or defaulted interest, as the
case may be, will not be payable on such interest payment date or proposed date
for payment of defaulted interest, as the case may be, in respect of such
Security, but will be payable on such interest payment date or proposed date for
payment of defaulted interest, as the case may be, only to the person to whom
interest in respect of such portion of such global Security is payable in
accordance with the provisions of this Indenture and such global Security.
SECTION 2.06. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute and the Trustee shall authenticate and deliver temporary
Securities of such series (printed or lithographed) of any denomination and
substantially in the form of the definitive Securities of such series, but with
or without a recital of specific redemption prices or conversion provisions and
with such omissions, insertions and variations as may be appropriate for
temporary Securities, all as may be determined by the Company. Temporary
Securities may contain such reference to any provisions of this Indenture as may
be appropriate. Every such temporary Security shall be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
the same effect, as the definitive Securities. Without
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unreasonable delay the Company will execute and deliver to the Trustee
definitive Securities of such series and thereupon any or all temporary
Securities of such series may be surrendered in exchange therefor, at the
offices or agencies to be maintained by the Company as provided in Section 4.02
with respect to the Securities of such series, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities an equal
aggregate principal amount of definitive Securities of such series. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series authenticated and delivered hereunder.
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become mutilated
or be destroyed, lost or stolen, the Company, in the case of any mutilated
Security shall, and in the case of any destroyed, lost or stolen Security in its
discretion may, execute, and upon its request the Trustee shall authenticate and
deliver, or cause to be authenticated and delivered, a new Security of the same
series of like tenor and terms in exchange and substitution for the mutilated
Security, or in lieu of and in substitution for the Security so destroyed, lost
or stolen. In case any such Security shall have matured or shall be about to
mature, instead of issuing a substituted Security, the Company may pay or
authorize payment of the same (without surrender thereof, except in the case of
a mutilated Security). In every case the applicant for a substituted Security or
for such payment shall furnish to the Company and the Trustee such security or
indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and to the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security and of the ownership thereof. The
Trustee may authenticate any such substituted Security and deliver the same, or
the Trustee or any paying agent of the Company may make any such payment, upon
the written request or authorization of any officer of the Company. Upon the
issue of any substituted Security, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses connected therewith
(including the fees and expenses of the Trustee).
To the extent permitted by mandatory provisions of law, every
substituted Security issued pursuant to the provisions of this Section in
substitution for any destroyed, lost or stolen Security shall constitute an
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be found at any time, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities of the same series duly issued hereunder.
To the full extent legally enforceable, all Securities shall be held
and owned upon the express condition that the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable instruments or other
securities without their surrender.
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SECTION 2.08. Cancellation and Destruction of Surrendered
Securities.
All Securities surrendered for the purpose of payment, redemption,
conversion, exchange, substitution or registration of transfer, shall, if
surrendered to the Company or any agent of the Company or of the Trustee, be
delivered to the Trustee, and the same, together with Securities surrendered to
the Trustee for cancellation, shall be canceled by it, and no Securities shall
be issued in lieu thereof except as expressly permitted by any of the provisions
of this Indenture. The Trustee shall dispose of canceled Securities in
accordance with its customary procedures and deliver a certificate of
disposition thereof to the Company unless by an Officers' Certificate the
Company shall direct that canceled Securities be returned to it. If the Company
shall purchase or otherwise acquire any of the Securities, however, such
purchase or acquisition shall not operate as a payment, redemption or
satisfaction of the Indebtedness represented by such Securities unless and until
the Company, at its option, shall deliver or surrender the same to the Trustee
for cancellation.
SECTION 2.09. Authenticating Agents.
The Trustee may from time to time appoint one or more Authenticating
Agents with respect to one or more series of Securities, which shall be
authorized to act on behalf of the Trustee and subject to its direction in
authenticating and delivering Securities of such series pursuant hereto in
connection with exchanges, registrations of transfer, redemptions and
conversions as fully to all intents and purposes as though any such
Authenticating Agent had been expressly authorized to execute and deliver
Securities of such series, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as though authenticated by the Trustee. Wherever reference is made in
this Indenture to the authentication or delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication or delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee by
an Authenticating Agent. Each Authenticating Agent shall at all times be a
corporation (including a banking association) organized and doing business under
the laws of the United States or any State or territory thereof or of the
District of Columbia, having a combined capital and surplus of at least five
million dollars, authorized under such laws to exercise corporate trust powers
and subject to supervision or examination by federal, state, territorial, or
District of Columbia authorities. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect herein specified in this Section.
Any corporation succeeding to the corporate agency business of an
Authenticating Agent shall continue to be an Authenticating Agent, if such
successor corporation is otherwise eligible under this Section, without the
execution or filing of any
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paper or any further act on the part of the Trustee or the Authenticating Agent
or such successor corporation.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may, or at the request of the Company
promptly shall, appoint a successor Authenticating Agent. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent herein. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
Any Authenticating Agent by the acceptance of its appointment shall
be deemed to have agreed with the Trustee that: it will perform and carry out
the duties of an Authenticating Agent as herein set forth, including among other
things the duties to authenticate and deliver Securities of any series for which
it has been appointed an Authenticating Agent it will furnish from time to time
as requested by the Trustee appropriate records of all transactions carried out
by it as Authenticating Agent and will furnish the Trustee such other
information and reports as the Trustee may reasonably require; it is eligible
for appointment as Authenticating Agent under this Section and will notify the
Trustee promptly if it shall cease to be so qualified; and it will indemnify the
Trustee against any loss, liability or expense incurred by the Trustee and will
defend any claim asserted against the Trustee by reason of any acts or failures
to act of the Authenticating Agent but it shall have no liability for any action
taken by it at the specific written direction of the Trustee.
SECTION 2.10. Deferrals of Interest Payment Dates.
If specified as contemplated by Section 2.01 or Section 2.02 with
respect to the Securities of a particular series, so long as no Event of Default
has occurred and is continuing, the Company shall have the right, at any time
during the term of such series, from time to time to defer the payment of
interest on such Securities for such period or periods as may be specified as
contemplated by Section 2.01 (each, an "Extension Period") during which
Extension Periods the Company shall have the right to make partial payments of
interest on any interest payment date. No Extension Period shall end on a date
other than an interest payment date. At the end of any such Extension Period the
Company shall pay all interest then accrued and unpaid on the Securities
(together with Additional Sums, Additional Interest, Compounded Interest and
Special Interest thereon, if any, at the rate specified for the Securities of
such series to the extent permitted by applicable law); provided, however, that
no Extension Period shall extend beyond the Stated Maturity of the principal of
the Securities of
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such series; provided, further, that during any such Extension Period, the
Company shall not, and shall not permit any Subsidiary of the Company to, (i)
declare or pay any dividends or distributions on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any shares of the Company's
capital stock (which includes common and preferred stock), or (ii) make any
payment of principal of or interest or premium, if any, on or repay, repurchase
or redeem any debt securities of the Company that rank pari passu with or junior
in interest to the Securities of such series or make any guarantee payments with
respect to any Bear Stearns Guarantee or other guarantee by the Company of the
debt securities of any Subsidiary of the Company that by their terms rank pari
passu with or junior in interest to the Securities of such series (other than
(a) dividends or distributions in capital stock of the Company; (b) any
declaration of a dividend in connection with the implementation of a Rights
Plan, or the issuance of capital stock of the Company under any Rights Plan, or
the redemption or repurchase of any rights distributed pursuant to a Rights
Plan; (c) payments under any Bear Stearns Guarantee (as defined herein and in
the Existing Indenture); (d) purchases of common stock related to the issuance
of common stock or rights under any of the Company's benefit plans for its
directors, officers or employees; and (e) payments of interest pursuant to the
EPICS Loan Agreement). Prior to the termination of any such Extension Period,
the Company may further extend the interest payment period, provided that no
Extension Period shall exceed the period or periods specified in such Securities
or extend beyond the Stated Maturity of the principal of such Securities. Upon
termination of any Extension Period and upon the payment of all accrued and
unpaid interest and any Additional Sums, Additional Interest, Compounded
Interest and Special Interest then due on any interest payment date, the Company
may elect to begin a new Extension Period, subject to the above requirements. No
interest shall be due and payable during an Extension Period, except at the end
thereof. The Company shall give the holders of the Securities of such series and
the Trustee notice of its election to begin or extend any such Extension Period
at least five Business Days prior to the next succeeding interest payment date
on which interest on Securities of such series would be payable but for such
deferral or, with respect to the Securities of a series issued to a Bear Stearns
Trust so long as such Securities are held by such Bear Stearns Trust prior to
the earlier of (i) the next succeeding date on which Distributions on the
Preferred Securities of such Bear Stearns Trust would be payable but for such
deferral, or (ii) the date the Property Trustee of such Bear Stearns Trust is
required to give notice to any securities exchange or other applicable
self-regulatory organization or to holders of such Preferred Securities of the
record date or the date such Distributions are payable, but in any event not
less than five Business Days prior to such record date.
The Trustee shall promptly give notice of the Company's election to
begin any such Extension Period to the holders of the outstanding Securities of
such series.
SECTION 2.11. Right of Set-Off.
With respect to the Securities of a series issued to a Bear Stearns
Trust notwithstanding anything to the contrary in the Indenture, the Company
shall have the right to set-off any payment it is otherwise required to make
thereunder in respect of any such Security to the extent the Company has
theretofore made, or is concurrently on the date of such
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payment making, a payment under the Bear Stearns Guarantee relating to such
Security or under Section 6.05 of the Indenture.
SECTION 2.12. Shortening or Extension of Stated Maturity.
If specified as contemplated by Section 2.01 or Section 2.02 with
respect to the Securities of a particular series, the Company shall have the
right to (i) shorten the Stated Maturity of the principal of the Securities of
such series at any time to any date not earlier than the first date on which the
Company has the right to redeem the Securities of such series, and (ii) extend
the Stated Maturity of the principal of the Securities of such series at any
time at its election for one or more periods, but in no event to a date later
than the 49th anniversary of the first interest payment date following the
Original Issue Date of the Securities of such series; provided that, if the
Company elects to exercise its right to extend the Stated Maturity of the
principal of the Securities of such series pursuant to this clause (ii), at the
time such election is made and at the time of extension (A) the Company is not
in bankruptcy, otherwise insolvent or in liquidation, (B) the Company is not in
default in the payment of any interest or principal on such Securities, (C) in
the case of any series of Securities issued to a Bear Stearns Trust such Bear
Stearns Trust is not in arrears on payments of Distributions on the Preferred
Securities issued by such Bear Stearns Trust and no deferred Distributions are
accumulated, and (D) such Securities are rated not less than BBB- by Standard &
Poor's Ratings Services or Baa3 by Moody's Investors Service, Inc. or the
equivalent by any other nationally recognized statistical rating organization.
In the event the Company elects to shorten or extend the Stated Maturity of the
Securities, it shall give notice to the Trustee, and the Trustee shall give
notice of such shortening or extension to the holders no less than 30 and no
more than 60 days prior to the effectiveness thereof.
SECTION 2.13. Agreed Tax Treatment.
Each Security issued hereunder shall provide that the Company and,
by its acceptance of a Security or a beneficial interest therein, the holder of,
and any Person that acquires a beneficial interest in, such Security agree that
for United States federal, state and local tax purposes it is intended that such
Security constitute indebtedness.
ARTICLE III
REDEMPTION OF SECURITIES
SECTION 3.01. Applicability of Article.
Securities of any series which are redeemable prior to Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 2.01 for Securities of any
series) in accordance with this Article.
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SECTION 3.02. Mailing of Notice of Redemption.
In case the Company shall desire to exercise any right to redeem all
or, as the case may be, any part of the Securities of any series pursuant to
this Indenture, it shall give notice of such redemption to holders of the
Securities to be redeemed as hereinafter in this Section provided.
The Company covenants that it will pay to the Trustee or one or more
paying agents, on or before the Business Day next preceding the date fixed for
each redemption of Securities, a sum in cash sufficient to redeem on the
redemption date all the Securities so called for redemption at the applicable
redemption price, together with any accrued interest on the Securities to be
redeemed to the date fixed for redemption.
Notice of redemption shall be given to the holders of Securities to
be redeemed as a whole or in part by mailing by first class mail, postage
prepaid, a notice of such redemption not less than 30 nor more than 60 days
prior to the date fixed for redemption to their last addresses as they shall
appear upon the Register, but failure to give such notice by mailing in the
manner herein provided to the holder of any Security designated for redemption
as a whole or in part, or any defect therein, shall not affect the validity of
the proceedings for the redemption of any other Security.
Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the holder
receives the notice.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Securities are to be redeemed or if
the redemption price cannot be calculated prior to the time the notice is
required to be given, the manner of calculation thereof, and shall state that
payment of the redemption price of the Securities or portions thereof to be
redeemed will be made at any of the offices or agencies to be maintained by the
Company in accordance with the provisions of Section 4.02 with respect to the
Securities to be redeemed, upon presentation and surrender of such Securities or
portions thereof, and that, if applicable, interest accrued to the date fixed
for redemption will be paid as specified in said notice and on and after said
date interest thereon will cease to accrue and shall also specify, if
applicable, the conversion price and the date on which the right to convert the
Securities will expire and that holders must comply with Article XV hereof in
order to convert their Securities. If less than all the Securities of any series
are to be redeemed, the notice of redemption to each holder shall specify such
holder's Securities of such series to be redeemed as a whole or in part. In case
any Security is to be redeemed in part only, the notice which relates to such
Security shall state the portion of the principal amount thereof to be redeemed
(which shall be equal to the minimum authorized denomination for Securities of
such series or any whole multiple thereof), and shall state that on and after
the redemption date, upon surrender of such Security, the holder will receive
the redemption price in respect to the principal amount thereof called for
redemption and, without charge, a new Security or Securities of the same series
of authorized denominations for the principal amount thereof remaining
unredeemed.
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In the case of any redemption at the election of the Company, the
Company shall, at least 60 days prior to the date fixed for redemption (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
redemption date, the basis for such redemption and of the principal amount of
Securities of the applicable series to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or that is subject to
compliance with conditions provided in the terms of such Securities, the Company
shall furnish the Trustee with an Officers' Certificate evidencing compliance
with such restriction or conditions.
If less than all the Securities of any series are to be redeemed,
the Company shall give the Trustee, at least 60 days in advance of the date
fixed for redemption, notice of the aggregate principal amount of Securities of
such series to be redeemed, and thereupon the Trustee shall select, pro rata, by
lot, or in any manner it shall deem fair, the Securities of such series to be
redeemed as a whole or in part and shall thereafter promptly notify the Company
in writing of the particular Securities of such series or portions thereof to be
redeemed. If the Securities of any series to be redeemed consist of Securities
having different dates on which the principal or any installment of principal is
payable or different rates of interest, if any, or different methods by which
interest may be determined or have any other different tenor or terms, then the
Company may, by written notice to the Trustee, direct that Securities of such
series to be redeemed shall be selected from among groups of such Securities
having specified term or terms and the Trustee shall thereafter select the
particular Securities to be redeemed in the manner set forth in the preceding
sentence from among the group of such Securities so specified.
SECTION 3.03. When Securities Called for Redemption Become Due
and Payable.
If the giving of notice of redemption shall have been completed as
above provided, the Securities or portions of Securities specified in such
notice shall become due and payable on the date and at the place or places
stated in such notice at the applicable redemption price, together, if
applicable, with any interest accrued (including any Additional Sums, Additional
Interest, Compounded Interest or Special Interest) to the date fixed for
redemption, and on and after such date fixed for redemption (unless the Company
shall default in the payment of such Securities at the applicable redemption
price, together with any interest accrued to the date fixed for redemption) any
interest on the Securities or portions of Securities so called for redemption
shall cease to accrue, and, except as provided in Sections 7.05 and 12.04, such
Securities shall cease from and after the date fixed for redemption to be
entitled to any benefit or security under this Indenture, and the holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and any unpaid interest accrued to the date
fixed for redemption. On presentation and surrender of such Securities at said
place of payment in said notice specified, the said Securities or portions
thereof shall be paid and redeemed by the Company at the applicable redemption
price, together with any interest accrued to the date fixed for redemption;
provided, however, that, except as otherwise specified as contemplated by
Section 2.01, any regular payment of interest becoming due on the date fixed for
redemption shall be payable to the holders of the Securities
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registered as such on the relevant record date as provided in Article II hereof.
Upon presentation of any Security which is redeemed in part only, the Company
shall execute and the Trustee shall authenticate and deliver at the expense of
the Company a new Security of the same series of like tenor and terms of
authorized denomination in principal amount equal to the unredeemed portion of
the Security so presented; except that if a global Security is so surrendered,
the Company shall execute, and the Trustee shall authenticate and deliver to the
Depositary for such global Security, without service charge, a global Security
in a denomination equal to and in exchange for the unredeemed portion of the
principal of the global Security so surrendered.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear interest
from the date fixed for redemption at the rate borne by or prescribed therefor
in the Security, or, in the case of a Security which does not bear interest, at
the rate of interest set forth therefor in the Security to the extent permitted
by law.
SECTION 3.04. Right of Redemption of Securities Initially Issued
to a Bear Stearns Trust.
In the case of the Securities of a series initially issued to Bear
Stearns Trust, except as otherwise specified as contemplated by Section 2.01,
the Company, at its option, may redeem such Securities on or after the date five
years after the Original Issue Date of such Securities, in whole at any time or
in part from time to time at a redemption price equal to 100% of the principal
amount thereof together with any unpaid interest accrued, (including any
Additional Sums, Additional Interest, Compounded Interest or Special Interest)
to the date fixed for redemption.
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
The Company covenants as follows:
SECTION 4.01. Payment of Principal of and Interest on Securities.
The Company will duly and punctually pay or cause to be paid the
principal of and interest, if any, on each of the Securities at the time and
places and in the manner provided herein and in the Securities. Except as
otherwise specified as contemplated by Section 2.01, if the Securities of any
series bear interest, each installment of interest on the Securities of such
series may at the option of the Company be paid (i) by mailing a check or checks
for such interest payable to the person entitled thereto pursuant to Section
2.03 to the address of such person as it appears on the Register of the
Securities of such series or (ii) by transfer to an account maintained by the
Person entitled thereto as specified in the Register of Securities, provided
that proper transfer instructions have been received by the record date.
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SECTION 4.02. Maintenance of Offices or Agencies for Registration of
Transfer, Exchange and Payment of Securities.
So long as any of the Securities shall remain outstanding, the
Company will maintain an office or agency in the City of New York, State of New
York, where the Securities may be presented for registration, conversion,
exchange and registration of transfer as in this Indenture provided, and where
notices and demands to or upon the Company in respect of the Securities or of
this Indenture may be served, and where the Securities may be presented for
payment. In case the Company shall designate and maintain some office or agency
other than the previously designated office or agency, it shall give the Trustee
prompt written notice thereof. In case the Company shall fail to maintain any
such office or agency or shall fail to give such notice of the location or of
any change in the location thereof to the Trustee, presentations and demands may
be made and notices may be served at the principal office of the Trustee.
In addition to such office or agency, the Company may from time to
time constitute and appoint one or more other offices or agencies for such
purposes with respect to Securities of any series, and one or more paying agents
for the payment of Securities of any series, in such cities or in one or more
other cities, and may from time to time rescind such appointments, as the
Company may deem desirable or expedient, and as to which the Company has
notified the Trustee; provided, however, that no such appointment or rescission
shall in any manner relieve the Company of its obligation to maintain such
office or agency in the Borough of Manhattan, City of New York, where Securities
of such series may be presented for payment.
SECTION 4.03. Appointment to Fill a Vacancy in the Office of
Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 7.10, a
Trustee, so that there shall at all times be a Trustee with respect to each
series of Securities hereunder.
SECTION 4.04. Duties of Paying Agent.
(a) If the Company shall appoint a Paying Agent other than the
Trustee with respect to Securities of any series, it will cause such Paying
Agent to execute and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section and
Section 12.03,
(1) That it will hold all sums held by it as such agent for
the payment of the principal of or interest, if any, on the Securities of
such series (whether such sums have been paid to it by the Company or by
any other obligor on the Securities of such series) in trust for the
benefit of the holders of the Securities entitled to such principal or
interest and will notify the Trustee of the receipt of sums to be so held,
(2) That it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Securities of such series) to make
any payment of the
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principal of or interest on the Securities of such series when the same
shall be due and payable, and
(3) That it will at any time during the continuance of any
Event of Default, upon the written request of the Trustee, deliver to the
Trustee all sums so held in trust by it.
(b) Whenever the Company shall have one or more Paying Agents with
respect to the Securities of any series, it will, prior to each due date of the
principal of or any interest on a Security of such series, deposit with a Paying
Agent of such series a sum sufficient to pay the principal or interest so
becoming due, such sum to be held in trust for the benefit of the holders of
Securities entitled to such principal or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
(c) If the Company shall act as its own Paying Agent with respect
to the Securities of any series, it will, on or before each due date of the
principal of or any interest on a Security of such series, set aside, segregate
and hold in trust for the benefit of the holder of such Security, a sum
sufficient to pay such principal or interest so becoming due and will notify the
Trustee of such action, or any failure by it or any other obligor on the
Securities of such series to take such action and will at any time during the
continuance of any Event of Default, upon the written request of the Trustee,
deliver to the Trustee all sums so held in trust by it.
(d) Anything in this Section to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtain a satisfaction and discharge
of this Indenture with respect to one or more or all series of Securities
hereunder, or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust for such series by it, or any Paying Agent hereunder, as
required by this Section, such sums are to be held by the Trustee upon the trust
herein contained.
(e) Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 12.03 and 12.04.
SECTION 4.05. Further Assurances.
From time to time whenever reasonably demanded by the Trustee, the
Company will make, execute and deliver or cause to be made, executed and
delivered any and all such further and other instruments and assurances and take
all such further action as may be reasonably necessary or proper to carry out
the intention of or to facilitate the performance of the terms of this Indenture
or to secure the rights and remedies hereunder of the holders of the Securities
of any series.
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SECTION 4.06. Officers' Certificate as to Defaults; Notices of
Certain Defaults.
The Company will, so long as any of the Securities are outstanding,
deliver to the Trustee on or before September 15 of each year, beginning with
the year 1999, a certificate signed by the Company's principal executive
officer, principal financial officer or principal accounting officer stating
that a review has been made under his or her supervision of the activities of
the Company during such year and of the performance under this Indenture and, to
the best of his or her knowledge, the Company has complied with all conditions
and covenants under this Indenture throughout such year, or if there has been a
default in the fulfillment of any such obligation, specifying each such default
known and the nature and status thereof. For purposes of this Section, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
SECTION 4.07. Waiver of Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition specifically contained in this Indenture for the benefit
of one or more series of Securities, if before the time for such compliance the
holders of a majority in principal amount of the Securities of all series
affected (all series voting as one class) at the time outstanding (determined as
provided in Section 8.04) shall waive such compliance in such instance, but no
such waiver shall extend to or affect such covenant 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
covenant or condition shall remain in full force and effect.
SECTION 4.08. Additional Sums.
In the case of the Securities of a series issued to a Bear Stearns
Trust, so long as no Event of Default has occurred and is continuing and except
as otherwise specified as contemplated by Section 2.01 or Section 2.02, in the
event that (i) a Bear Stearns Trust is the holder of all of the Outstanding
Securities of such series, (ii) a Special Event in respect of such Bear Stearns
Trust shall have occurred and be continuing and (iii) the Company shall not have
(a) redeemed the Securities of such series or (b) terminated such Bear Stearns
Trust pursuant to the termination provisions of the related Trust Agreement, the
Company shall pay to such Trust (and its permitted successors or assign under
the related Trust Agreement) for so long as such Bear Stearns Trust (or its
permitted successor or assignee) is the registered holder of any Securities of
such series, such additional amounts as may be necessary in order that the
amount of Distributions (including any Additional Amounts (as defined in the
Trust Agreement)), then due and payable by such Bear Stearns Trust on the
related Preferred Securities and Common Securities that at any time remain
outstanding in accordance with the terms thereof shall not be reduced as a
result of any additional taxes (the "Additional Sums"). Whenever in this
Indenture or the Securities there is a reference in any context to the payment
of principal of or interest on the Securities, such mention shall be deemed to
include mention of the payments of the Additional Sums provided for in this
paragraph to the extent that, in such context,
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Additional Sums are, were or would be payable in respect thereof pursuant to the
provisions of this paragraph and express mention of the payment of Additional
Sums (if applicable) in any provisions hereof shall not be construed as
excluding Additional Sums in those provisions hereof where such express mention
is not made, provided, however, that the deferral of the payment of interest
pursuant to Section 2.10 or the Securities shall not defer the payment of any
Additional Sums that may be due and payable.
SECTION 4.09. Additional Covenants.
The Company covenants and agrees with each holder of Securities of a
series issued to a Bear Stearns Trust that it will not, and it will not permit
any Subsidiary of the Company to, (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any shares of the Company's capital stock (which includes
common and preferred stock), or (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company that rank pari passu with or junior in interest to the
Securities of such series or make any guarantee payments with respect to any
Bear Stearns Guarantee or other guarantee by the Company of debt securities of
any Subsidiary of the Company that by their terms rank pari passu with or junior
in interest to the Securities of such series (other than (a) dividends or
distributions in capital stock of the Company; (b) any declaration of a dividend
in connection with the implementation of a Rights Plan, or the issuance of
capital stock of the Company under any Rights Plan, or the redemption or
repurchase of any rights distributed pursuant to a Rights Plan; (c) payments
under any Bear Stearns Guarantee (as defined herein and in the Existing
Indenture); (d) purchases of common stock related to the issuance of common
stock under any of the Company's benefit plans for its directors, officers or
employees; and (e) payments of interest pursuant to the EPICS Loan Agreement) if
at such time (i) there shall have occurred any event of which the Company has
actual knowledge that (a) with the giving of notice or the lapse of time or
both, would constitute an Event of Default hereunder and (b) in respect of which
the Company shall not have taken reasonable steps to cure, (ii) the Company
shall be in default with respect to its payment of any obligations under the
related Bear Stearns Guarantee or (iii) the Company shall have given notice of
its election to begin an Extension Period as provided herein and shall not have
rescinded such notice, or such period, or any extension thereof, shall be
continuing.
The Company also covenants with each holder of Securities of a
series issued to Bear Stearns Trust (i) to maintain directly or indirectly 100%
ownership of the Common Securities of such Bear Stearns Trust; provided,
however, that any permitted successor of the Company hereunder may succeed to
the Company's ownership of such Common Securities, (ii) not to voluntarily
terminate, wind up or liquidate such Bear Stearns Trust, except (a) in
connection with a distribution of the Securities of such series to the holders
of Preferred Securities in liquidation of such Bear Stearns Trust or (b) in
connection with certain mergers, consolidations or amalgamations permitted by
the related Trust Agreement and (iii) to use its reasonable efforts, consistent
with the terms and provisions of such Trust Agreement, to cause such Trust to
remain classified as a grantor trust and not an association taxable as a
corporation for United States federal income tax purposes.
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The Company also covenants and agrees with each holder of Securities
of a series issued to a Bear Stearns Trust that it will pay all debts and other
obligations (other than with respect to the Preferred Securities) and all costs
and expenses of the Bear Stearns Trust (including costs and expenses relating to
the organization of the Bear Stearns Trust, the fees and expenses of the
trustees of such Bear Stearns Trust and the costs and expenses relating to the
operation of the Bear Stearns Trust) and the offering of the Preferred
Securities and to pay any and all taxes and all costs and expenses with respect
to the foregoing (other than United States withholding taxes) to which the Bear
Stearns Trust might become subject. The foregoing obligations of the Company are
for the benefit of, and shall be enforceable by, any person to whom any such
debts, obligations, costs, expenses and taxes are owed (a "Creditor") whether or
not such Creditor has received notice thereof. Any such Creditor may enforce
such obligations of the Company directly against the Company and the Company has
irrevocably waived any right or remedy to require that any such Creditor take
any action against the Bear Stearns Trust or any other person before proceeding
against the Company.
ARTICLE V
SECURITYHOLDERS LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 5.01. Company to Furnish Trustee Information as to the Names
and Addresses of Securityholders.
The Company covenants and agrees that it will furnish or cause to be
furnished to the Trustee, semiannually not more than five days after January 1
and July 1 of each year beginning with January 1999, and at such other times as
the Trustee may request in writing within 30 days after receipt by the Company
of any such request, a list in such form as the Trustee may reasonably require
containing all information in the possession or control of the Company, or any
Paying Agent or any registrar of the Securities of such series, other than the
Trustee, as to the names and addresses of the holders of Securities of such
series obtained (in the case of each list other than the first list) since the
date as of which the next previous list was furnished; provided, however, that
if the Trustee shall be the registrar of the Securities of such series, no such
list need be furnished. Any such list may be dated as of a date not more than
fifteen days prior to the time such information is furnished or caused to be
furnished, and need not include information received after such date.
SECTION 5.02. Trustee to Preserve Information as to the Names and
Addresses of Securityholders Received by It.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
holders of Securities of each series (1) contained in the most recent list
furnished to it as provided in Section 5.01 and (2) received by it in the
capacity of Paying Agent or registrar (if so acting). The Trustee may destroy
any list furnished to it as provided in Section 5.01 upon receipt of a new list
so furnished.
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(b) In case three or more holders of Securities (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Security for a
period of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other holders
of Securities of any series or with holders of all Securities with respect to
their rights under this Indenture or under such Securities, and is accompanied
by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five Business Days after the
receipt of such application, at its election, either
(1) afford such applicants access to the information preserved
at the time by the Trustee in accordance with the provisions of subsection
(a) of this Section, or
(2) inform such applicants as to the approximate number of
holders of Securities of such series or all Securities, as the case may
be, whose names and addresses appear in the information preserved at the
time by the Trustee in accordance with the provisions of subsection (a) of
this Section, and as to the approximate cost of mailing to such
Securityholders the form of proxy or other communications, if any,
specified in such application.
If the Trustee shall elect not to afford such access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each of the holders of Securities of such series, or all Securities, as
the case may be, whose name and address appear in the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a) of
this Section, a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the holders of Securities of such series or
all Securities, as the case may be, or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every holder of the Securities, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any Paying Agent nor any registrar shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the holders of Securities in accordance with
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the provisions of subsection (b) of this Section, regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
said subsection (b).
(d) If there shall be different Trustees acting hereunder with
respect to separate series of Securities, applicants shall make separate
applications hereunder to each such Trustee, and such Trustees shall
collaborate, if necessary, in acting under this Section.
SECTION 5.03. Annual and Other Reports to Be Filed by Company
with Trustee.
(a) The Company covenants and agrees to file with the Trustee
within fifteen days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended; or, if the
Company is not required to file information, documents or reports pursuant to
either of such Sections, then it will file with the Trustee and the Commission,
in accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Securities Exchange
Act of 1934, as amended in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in such
rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and
the Commission, in accordance with the rules and regulations prescribed from
time to time by the Commission, such additional information, documents, and
reports with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be required from time to time by
such rules and regulations.
(c) The Company covenants and agrees to transmit to the holders of
Securities within 30 days after the filing thereof with the Trustee, in the
manner and to the extent provided in subsection (c) of Section 5.04 with respect
to reports pursuant to subsection (a) of said Section 5.04, such summaries of
any information, documents and reports required to be filed by the Company
pursuant to subsections (a) and (b) of this Section as may be required by rules
and regulations prescribed from time to time by the Commission.
SECTION 5.04. Trustee to Transmit Annual Report to
Securityholders.
(a) On or before January 15, 2000, and on or before January 15 in
every year thereafter, if and so long as any Securities are outstanding
hereunder, the Trustee shall transmit to the Securityholders as hereinafter in
this Section provided, a brief report dated as of the preceding November 15 with
respect to any of the following events which may have occurred within the
previous twelve (12) months (but if no such event has occurred within such
period no report need be transmitted):
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(1) Any change to its eligibility under Section 7.09, and its
qualifications under Section 7.08;
(2) The creation of or any material change to a relationship
which, with the occurrence of an Event of Default, would create a
conflicting interest within the meaning of the Trust Indenture Act;
(3) The character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date of
such report, and for the reimbursement of which it claims or may claim a
lien or charge, prior to that of the Securities of any series, on any
property or funds held or collected by it as Trustee, except that the
Trustee shall not be required (but may elect) to state such advances if
such advances so remaining unpaid aggregate not more than one-half of one
percent of the principal amount of the Securities of such series
outstanding on the date of such report;
(4) Any change to the amount, interest rate, and maturity date
of all other indebtedness owing by the Company (or by any other obligor on
the Securities) to the Trustee in its individual capacity, on the date of
such report, with a brief description of any property held as collateral
security therefor, except indebtedness based upon a creditor relationship
arising in any manner described in paragraph (2), (3), (4), or (6) of
subsection (b) of Section 7.13;
(5) Any change to the property and funds, if any, physically
in the possession of the Trustee (as such) on the date of such report;
(6) Any additional issue of Securities which the Trustee has
not previously reported; and
(7) Any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously reported and which
in its opinion materially affects the Securities, except action in respect
of a default, notice of which has been or is to be withheld by it in
accordance with the provisions of Section 6.07.
(b) The Trustee shall transmit to the Securityholders, as
hereinafter provided, a brief report with respect to the character and amount of
any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since the date of
the last report transmitted pursuant to the provisions of subsection (a) of this
Section (or if such report has not yet been so transmitted, since the date of
execution of this Indenture), for the reimbursement of which it claims or may
claim a lien or charge prior to that of the Securities of any series on property
or funds held or collected by it as Trustee, and which it has not previously
reported pursuant to this subsection, except that the Trustee shall not be
required (but may elect) to report such advances if such advances remaining
unpaid at any time aggregate ten percent or less of the principal amount of
Securities
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of such series outstanding at such time, such report to be transmitted within 90
days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail
to all holders of Securities of any series, as the names and addresses of such
holders shall appear upon the Register of the Securities of such series.
(d) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with each stock
exchange upon which the Securities of any series are listed and also with the
Commission. The Company will notify the Trustee when and as the Securities of
any series become listed on any stock exchange.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. Events of Default Defined.
The term "Event of Default" whenever used herein with respect to
Securities of any series shall mean any one of the following events:
(a) Default in the payment of any installment of interest upon any
of the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days (subject to the
deferral of any due date in the case of an Extension Period); or
(b) Default in the payment of all or any part of the principal of
any of the Securities of such series as and when the same shall become due and
payable either at maturity, upon any redemption, by declaration or otherwise; or
(c) Failure on the part of the Company duly to observe or perform
in any material respect any other of the covenants or agreements on the part of
the Company in the Securities or in this Indenture (including any supplemental
indenture or pursuant to any Officers' Certificate as contemplated by Section
2.01) specifically contained for the benefit of the Securities of such series,
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 not less than 25% in principal amount of the Securities of such
series and all other series so benefited (all series voting as one class) at the
time outstanding under this Indenture a written notice specifying such failure
and stating that such is a "Notice of Default" hereunder; or
(d) The commencement by the Company of a voluntary case under
Chapter 7 or Chapter 11 of the federal Bankruptcy Code or any other similar
state or federal law now or hereafter in effect, or the consent by the Company
to the entry of a decree or order for relief in an involuntary case under any
such law, or the consent by the Company to the appointment
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of or taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or similar official) of the Company or of all or substantially all
of its property, or the making by the Company of any general assignment for the
benefit of creditors, or the failure by the Company generally to pay its debts
as they become due; or
(e) The entry of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Company in an involuntary case
under Chapter 7 or Chapter 11 of the federal Bankruptcy Code or any other
similar state or federal law now or hereafter in effect, or the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or for all or substantially all of its property, or the
ordering of a winding-up or liquidation of its affairs, and the continuance of
any such decree or order unstayed and in effect for a period of 90 days.
If an Event of Default under clauses (a), (b) or (c) above shall
have occurred and be continuing (but, in the case of clause (c), only if the
Event of Default is with respect to less than all series of Securities then
outstanding under this Indenture), unless the principal of all the Securities
shall have already become due and payable, either the Trustee or the holders of
not less than 25% in principal amount of all the then outstanding Securities of
the series as to which such Event of Default under clauses (a), (b) or (c) above
has occurred (each such series voting as a separate class in the case of an
Event of Default under clauses (a) or (b), and all such series voting as one
class in the case of an Event of Default under clause (c)), by notice in writing
to the Company (and to the Trustee if given by Securityholders) may declare the
principal amount (or if Securities of any series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all the Securities of such series, or of all such
series in the case of an Event of Default under clause (c) above, in each case
together with any accrued interest, to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately due and
payable; provided, however, that in the case of the Securities of a series
issued to a Bear Stearns Trust, if upon an Event of Default, the Trustee or the
holders of at least 25% in principal amount of the outstanding Securities of
that series fail to declare the principal of all the Securities of that series
to be immediately due and payable, the holders of at least 25% in aggregate
liquidation amount of the corresponding series of Preferred Securities then
outstanding shall have such right by a notice in writing to the Company and the
Trustee. If an Event of Default under clauses (c), (d) or (e) above shall have
occurred and be continuing (but, in the case of clause (c), only if the Event of
Default is with respect to all Securities then outstanding under the Indenture),
then and in each and every such case, unless the principal of all the Securities
shall have already become due and payable, either the Trustee or the holders of
not less than 25% in principal amount of all the then outstanding Securities of
each series as to which such Event of Default under clauses (c), (d) or (e)
above has occurred (voting as one class), by notice in writing to the Company
(and to the Trustee if given by Securityholders) may declare the principal
amount (or if Securities of any series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of such
series) of all the Securities as to which the Event of Default under clauses
(c), (d) or (e) above has occurred, together with any accrued interest, to be
due and payable immediately, and upon any such declaration the same shall become
and shall be immediately due and payable, anything
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contained in this Indenture or in the Securities to the contrary
notwithstanding; provided, however, that in the case of the Securities of a
series issued to a Bear Stearns Trust, if upon an Event of Default, the Trustee
or the holders of not less than 25% in principal amount of the outstanding
Securities of that series fail to declare the principal of all the Securities of
that series to be immediately due and payable, the holders of at least 25% in
aggregate liquidation amount of the corresponding series of Preferred Securities
then outstanding shall have such right by a notice in writing to the Company and
the Trustee. The foregoing provisions, however, are subject to the condition
that if at any time after the principal amount (or specified portion thereof) of
the Securities of any one or more series (or of all the Securities, as the case
may be) shall have been so declared due and payable, and before any judgment or
decree for the payment of moneys due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest upon all the
Securities of such series (or upon all the Securities, as the case may be) and
the principal of any and all Securities of such series (or of any and all the
Securities, as the case may be) which shall have become due otherwise than by
declaration (with interest on overdue installments of interest to the extent
permitted by law and on such principal at the rate or rates of interest borne
by, or prescribed therefor in, the Securities of each such series to the date of
such payment or deposit) and the amounts payable to the Trustee under Section
7.06, and any and all defaults under the Indenture with respect to Securities of
such series (or all Securities, as the case may be), other than the nonpayment
of principal of and any accrued interest on Securities of such series (or any
Securities, as the case may be) which shall have become due by declaration,
shall have been cured, remedied or waived as provided in Section 6.06, then and
in every such case the holders of a majority in principal amount of the
Securities of such series (or of all the Securities, as the case may be) then
outstanding and as to which such Event of Default has occurred (such series or
all series voting as one class, if more than one series are so entitled) by
written notice to the Company and to the Trustee, may rescind and annul such
declaration and its consequences. In the case of Securities issued to a Bear
Stearns Trust, should the holders of such Securities fail to annul such
declaration and waive such default, the holders of a majority in aggregate
liquidation preference of related Preferred Securities shall have such right;
but no such rescission and annulment shall extend to or shall affect any
subsequent default, or shall impair any right consequent thereon.
In case the Trustee, any holder of Securities or any holder of
Preferred Securities shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, such holder of Securities or such holder of
Preferred Securities then and in every such case the Company, the Trustee, the
holders of the Securities of such series (or of all the Securities, as the case
may be) and the holders of Preferred Securities shall be restored respectively
to their former positions and rights hereunder, and all rights, remedies and
powers of the Company and the Trustee, the holders of the Securities of such
series (or of all the Securities, as the case may be) and the holders of
Preferred Securities shall continue as though no such proceedings had been
taken.
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SECTION 6.02. Covenant of Company to Pay to Trustee Whole Amount Due
on Securities or Default in Payment of Interest or Principal.
The Company covenants that (1) in case default shall be made in the
payment of any installment of interest on any of the Securities of any series as
and when the same shall become due and payable, and such default shall have
continued for a period of 30 days (subject to the deferral of any due date in
the case of an Extension Period), or (2) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity of
the Securities of such series or upon any redemption or upon declaration or
otherwise, then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the holders of the Securities of such series, the
whole amount that then shall have become due and payable on all such Securities
of such series for principal or interest, or both, as the case may be, with
interest upon the overdue principal and installments of interest (to the extent
permitted by law) at the rate or rates of interest borne by or prescribed
therefor in the Securities of such series; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including a reasonable compensation to the Trustee, its agents,
attorneys and counsel, and any expenses or liabilities incurred, and all
advances made, by the Trustee hereunder other than through its negligence or bad
faith.
In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor upon such
Securities, and collect in the manner provided by law out of the property of the
Company or any other obligor upon such Securities wherever situated the moneys
adjusted or decreed to be payable.
The Trustee shall be entitled and empowered, either in its own name
or as trustee of an express trust, or as attorney-in-fact for the holders of the
Securities of any series, or in any one or more of such capacities (irrespective
of whether the principal of the Securities of such series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section) to file and prove a claim or claims for the whole amount of
principal (or, if the Securities of such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) and interest owing and unpaid in respect of the Securities
of such series and to file such other documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for reasonable
compensation of the Trustee, its agents and counsel, and for reimbursement of
all expenses, disbursements and liabilities incurred, and all advances made, by
the Trustee, its agents and counsel, except as a result of its negligence or bad
faith) and of the holders of the Securities of such series allowed in any equity
receivership, insolvency, bankruptcy, liquidation, arrangement, readjustment,
reorganization or any other judicial proceedings relative to the Company or any
other obligor on the Securities or their creditors, or their property. The
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Trustee is hereby irrevocably appointed (and the successive respective holders
of the Securities of each series by taking and holding the same shall be
conclusively deemed to have so appointed the Trustee) the true and lawful
attorney-in-fact of the respective holders of the Securities of such series,
with authority to make and file in the respective names of the holders of the
Securities of such series, or on behalf of the holders of the Securities of such
series as a class, any proof of debt, amendment of proof of debt, claim,
petition or other document in any such proceeding and to receive payment of any
sums becoming distributable on account thereof, and to execute any such other
papers and documents and to do and perform any and all such acts and things for
and on behalf of such holders of the Securities, as may be necessary or
advisable in the opinion of the Trustee in order to have the respective claims
of the Trustee and of the holders of the Securities of such series allowed in
any such proceedings, and to receive payment of or on account of such claims and
to distribute the same, and any receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.06; provided,
however, that nothing herein shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of such series or the rights of any holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
holder of Securities of such series in any such proceeding.
All rights of action and of asserting claims under this Indenture,
or under any of the Securities of any series, may be enforced by the Trustee
without the possession of any of the Securities of such series, or the
production thereof on any trial or other proceeding relative thereto, and any
such suit or proceeding instituted by the Trustee, shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall be,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of such Trustee, its agents and counsel, for the
ratable benefit of the holders of the Securities of such series.
SECTION 6.03. Application of Moneys Collected by Trustee.
Any moneys collected by the Trustee pursuant to Section 6.02 shall
be applied in the order following, at the date or dates fixed by the Trustee for
the distribution of such moneys, upon presentation of the several Securities in
respect of which moneys have been collected, and stamping thereon the payment,
if only partially paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses of collection, and of
all amounts payable to the Trustee under Section 7.06;
Second: In case the principal of the outstanding Securities in
respect of which moneys have been collected shall not have become due and be
unpaid, to the payment of any
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interest on such Securities, in the order of the maturity of the installments of
such interest, with interest upon the overdue installments of interest (so far
as permitted by law and to the extent that such interest has been collected by
the Trustee) at the rate or rates of interest borne by, or prescribed therefor
in, such Securities, such payments to be made ratably to the persons entitled
thereto, without discrimination or preference;
Third: In case the principal of the outstanding Securities in
respect of which such moneys have been collected shall have become due, by
declaration or otherwise, to the payment of the whole amount then owing and
unpaid upon such Securities for principal and interest, if any, with interest on
the overdue principal and any installments of interest (so far as permitted by
law and to the extent that such interest has been collected by the Trustee) at
the rate or rates of interest borne by, or prescribed therefor in, such
Securities; and in case such moneys shall be insufficient to pay in full the
whole amount so due and unpaid upon such Securities, then to the payment of such
principal and interest, without preference or priority of principal over
interest, or of interest over principal, or of any installment of interest over
any other installment of interest, or of any Security over any other Security,
ratably to the aggregate of such principal and accrued and unpaid interest; and
Fourth: To the payment of the remainder, if any, to the Company,
its successors or assigns, or to whomsoever may be lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct.
SECTION 6.04. Limitation on Suits by Holders of Securities.
No holder of any Security of any series shall have any right by
virtue or by availing of any provision of this Indenture to institute any suit,
action or proceeding in equity or at law upon or under or with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless such holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the holders of not less than 25% in principal amount
of all the Securities at the time outstanding (considered as one class) shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 6.06; it being understood and intended, and being
expressly covenanted by the taker and holder of every Security with every other
taker and holder and the Trustee, that no one or more holders of Securities
shall have any right in any manner whatever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of the
holders of any other of such Securities, or to obtain or seek to obtain priority
over or preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Securities. For the protection and
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enforcement of the provisions of this Section, each and every Securityholder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Notwithstanding any other provisions in this Indenture, the right of
any holder of any Security to receive payment of the principal of and interest
on such Security, on or after the respective due dates expressed in such
Security (or, in the case of redemption on or after the date fixed for
redemption), or to institute suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of such holder.
SECTION 6.05. On Default Trustee May Take Appropriate Action.
In case of an Event of Default hereunder the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either by suit in
equity or by action at law or by proceeding in bankruptcy or otherwise, whether
for the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture, or
to enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law. All powers and remedies given by this Article to the
Trustee or to the Securityholders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any thereof or of any other powers and
remedies available to the Trustee or the holders of the Securities, by judicial
proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture, and no delay or omission
of the Trustee, of any holder of any of the Securities or any holder of
Preferred Securities to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right or
power, or shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to the provisions of Section 8.04, every
power and remedy given by this Article or by law to the Trustee, to the
Securityholders or the holders of Preferred Securities may be exercised from
time to time, and as often as shall be deemed expedient, by the Trustee, by the
Securityholders or by the holders of Preferred Securities, as the case may be.
In the case of Securities of a series issued to a Bear Stearns
Trust, any holder of the corresponding series of Preferred Securities issued by
such Bear Stearns Trust shall have the right, upon the occurrence of an Event of
Default described in Section 6.01(a) or (b) above, to institute a suit directly
against the Company for enforcement of payment to such holder of principal of
(including premium, if any) and interest (including any Additional Sums,
Additional Interest, Compounded Interest and Special Interest, if any) on the
Securities having a principal amount equal to the aggregate liquidation amount
of such Preferred Securities of the corresponding series held by such holder.
SECTION 6.06. Rights of Holders of Majority in Principal Amount of
Securities to Direct Trustee and to Waive Default.
The holders of a majority in principal amount of the Securities of
any one or more series or of all the Securities, as the case may be (voting as
one class), at the time
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outstanding (determined as provided in Section 8.04) shall have the right to
direct the time, method, and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee with respect to such one or more series; provided, however, that,
subject to Section 7.01, the Trustee shall have the right to decline to follow
any such direction if the Trustee being advised by Opinion of Counsel determines
that the action so directed may not lawfully be taken, or if the Trustee in good
faith shall, by a Responsible Officer or Officers of the Trustee, determine that
the proceedings so directed would be illegal or involve it in personal liability
or be unduly prejudicial to the rights of Securityholders of such one or more
series not parties to such direction, and provided further that nothing in this
Indenture shall impair the right of the Trustee to take any action deemed proper
by the Trustee and which is not inconsistent with such direction by such
Securityholders of such one or more series. The holders of a majority in
principal amount of the Securities of all series as to which a default hereunder
has occurred (all series voting as one class) at the time outstanding
(determined as provided in Section 8.04) and, in the case of any Securities of a
series issued to a Bear Stearns Trust, the holders of a majority in aggregate
liquidation amount of the Preferred Securities issued by such Bear Stearns
Trust, may waive any past default hereunder with respect to such series and its
consequences, except a default in the payment of the principal of or interest on
any of such Securities or in respect of a covenant or provision hereof which
under Article X cannot be modified or amended without the consent of the holder
of each Security so affected. Upon any such waiver, such default shall cease to
exist and any Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture, but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon. Any such
waiver shall be deemed to be on behalf of the holders of all the Securities of
such series or, in the case of a waiver by holders of Preferred Securities
issued by such Bear Stearns Trust, on behalf of all holders of Preferred
Securities issued by such Bear Stearns Trust.
SECTION 6.07. Trustee to Give Notice of Defaults Known to It, but
May Withhold in Certain Circumstances.
The Trustee shall, within 90 days after the occurrence of any
default hereunder with respect to the Securities of any series, give to the
holders of the Securities of such series in the manner and to the extent
provided in subsection (c) of Section 5.04 with respect to reports pursuant to
subsection (a) of said Section 5.04, notice of such default known to the Trustee
unless such default shall have been cured, remedied or waived before the giving
of such notice (the term "default" for the purposes of this Section being hereby
defined to be the events specified in clauses (c), (d) and (e) of Section 6.01,
default in the payment of the principal of or interest on Securities of any
series, and any additional events specified in the terms of any series of
Securities pursuant to Section 2.01, not including any periods of grace provided
for therein, and irrespective of the giving of written notice specified in any
such terms, and irrespective of the delivery of any Officers' Certificate
provided for in any such terms); provided, that, except in the case of default
in the payment of the principal of or interest on any of the Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as the Board of Directors, the Executive Committee, or a Trust Committee of
directors and/or Responsible Officers of the Trustee in good faith determines
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that the withholding of such notice is in the interest of the holders of the
Securities of such series.
SECTION 6.08. Requirement of an Undertaking to Pay Costs in Certain
Suits under the Indenture or against the Trustee.
All parties to this Indenture agree, and each holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs, including reasonable attorneys' fees, against any
party litigant in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any holder of Securities of any series, or group of such
Securityholders, holding in the aggregate more than ten percent in principal
amount of all the Securities (all series considered as one class) outstanding;
or to any suit instituted by any Securityholder for the enforcement of the
payment of the principal of or interest on any Security, on or after the due
date expressed in such Security (or in the case of any redemption, on or after
the date fixed for redemption).
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01. Upon Event of Default Occurring and Continuing,
Trustee Shall Exercise Powers Vested in It, and Use Same Degree of Care and
Skill in Their Exercise, as a Prudent Man Would Use.
The Trustee, prior to the occurrence of an Event of Default and
after the curing, remedying or waiving of all Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default has
occurred (which has not been cured, remedied or waived) the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affair.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct; provided, however, that
(a) Prior to the occurrence of an Event of Default and after the
curing, remedying or waiving of all Events of Default which may have occurred:
(1) The duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture and the
Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in
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this Indenture, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(2) In the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture;
(b) The Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(c) The Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the holders of Securities pursuant to Section 6.06 relating to the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture;
(d) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 7.01; and
(e) None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
SECTION 7.02. Reliance on Documents, Opinions, Etc.
Except as otherwise provided in Section 7.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, debenture,
note or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof be herein specially prescribed); and
any Resolution of the Company may be evidenced to the Trustee by a copy thereof
certified by the Secretary or an Assistant Secretary of the Company;
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(c) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such written advice or Opinion of
Counsel;
(d) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby;
(e) The Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other paper or document, unless requested in writing to do so
by the holders of Securities pursuant to Section 6.06; provided, however, that
if the payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation, is
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such costs, expenses or liabilities as a condition
to so proceeding; and provided further, that nothing in this subsection (f)
shall require the Trustee to give the Securityholders any notice other than that
required by Section 6.07. The reasonable expense of every such examination shall
be paid by the Company or, if paid by the Trustee, shall be repaid by the
Company upon demand;
(g) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) The Trustee shall be under no responsibility for the approval
by it in good faith of any expert for any of the purposes expressed in this
Indenture.
SECTION 7.03. Trustee Not Liable for Recitals in Indenture or in
Securities.
The recitals contained herein and in the Securities (other than the
certificate of authentication on the Securities) shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of any of the Securities
or of the proceeds thereof.
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SECTION 7.04. May Own Securities.
The Trustee or any agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not Trustee or such agent.
SECTION 7.05. Moneys Received by Trustee to Be Held in Trust
without Interest.
Subject to the provisions of Section 12.04, all moneys received by
the Trustee shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received, but need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder.
SECTION 7.06. Trustee Entitled to Compensation, Reimbursement
and Indemnity.
The Company covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of any express trust), and, the Company will pay or reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in connection with the acceptance or
administration of its trust under this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel and of
all persons not regularly in its employ) except any such expense, disbursement
or advance as may arise from its negligence or bad faith. The Company also
covenants to indemnify the Trustee and its agents for, and to hold them harmless
against, any loss, liability or expense incurred without negligence or bad faith
on their part and arising out of or in connection with the acceptance or
administration of this trust and performance of their duties hereunder,
including the costs and expenses (including fees and disbursements of their
counsel) of defending themselves against any claim or liability in connection
with the exercise or performance of any of the powers or duties hereunder. The
obligations of the Company under this Section to compensate the Trustee, to pay
or reimburse the Trustee for expenses, disbursements and advances and to
indemnify and hold harmless the Trustee shall constitute additional indebtedness
hereunder and shall survive the satisfaction and discharge of this Indenture and
the resignation or removal of the Trustee. Such additional indebtedness shall be
secured by a lien prior to that of the Securities upon all property and funds
held or collected by the Trustee as such, except funds held in trust for the
payment of principal of or interest, if any, on particular Securities.
SECTION 7.07. Right of Trustee to Rely on Officers' Certificate
Where No Other Evidence Specifically Prescribed.
Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking
suffering or omitting any action hereunder, such matter
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(unless other evidence in respect thereof be herein specifically prescribed)
may, in the absence of negligence or bad faith on the part of the Trustee be
deemed to be conclusively proved and established by an Officers' Certificate
delivered to the Trustee, and such Certificate, in the absence of negligence or
bad faith on the part of the Trustee, shall be full warrant to the Trustee for
any action taken, suffered or omitted by it under the provisions of this
Indenture upon the faith thereof.
SECTION 7.08. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any conflicting interest, within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under any Trust Agreement and the Trust
Securities issued or to be issued thereunder; any Preferred Securities Guarantee
Agreement relating to a Bear Stearns Trust (as defined herein and in the
Existing Indenture) between the Company and The Chase Manhattan Bank, as
guarantee trustee; any Amended and Restated Trust Agreement related to a Bear
Stearns Trust (as defined in the Existing Indenture) among the Company, as
depositor, The Chase Manhattan Bank, as property trustee, Chase Manhattan Bank
Delaware, as Delaware trustee, the administrators named therein and the several
holders and the Trust Securities issued or to be issued thereunder; or the
Existing Indenture and the securities issued or to be issued thereunder.
SECTION 7.09. Requirements for Eligibility of Trustee.
The Trustee hereunder shall at all times be a corporation organized
and doing business under the laws of the United States or any State or territory
thereof or of the District of Columbia authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by federal, state,
territorial, or District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 7.10.
Neither the Company, any other obligor upon the Securities, nor any person
directly or indirectly controlling, controlled by, or under common control with
the Company or any such obligor shall serve as Trustee under this Indenture.
SECTION 7.10. Resignation of Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed,
may at any time resign with respect to one or more or all series of Securities
by giving written notice of such resignation to the Company and by giving to the
holders of Securities of the applicable series notice thereof in the manner and
to the extent provided in subsection (c) of Section 5.04
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with respect to reports pursuant to subsection (a) of Section 5.04. Upon
receiving such notice of resignation and if the Company shall deem it
appropriate evidence satisfactory to it of such mailing, the Company shall
promptly appoint a successor Trustee with respect to the applicable series (it
being understood that any successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and at any time there shall be
only one Trustee with respect to the Securities of any particular series) by
written instrument, in duplicate, executed pursuant to a Resolution of the
Company, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor Trustee. If no successor Trustee shall
have been so appointed with respect to any series and have accepted appointment
within 30 days after the mailing of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee, or any Securityholder who has been a bona fide holder of a
Security or Securities of the applicable series for at least six months may,
subject to the provisions of Section 6.08, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
Trustee. Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, appoint a successor Trustee.
(b) In case at any time any of the following shall occur:
(1) The Trustee shall fail to comply with the provisions of
Section 7.08 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Security or Securities
of the applicable series for at least six months, unless the Trustee's
duty to resign is stayed as provided in Section 310(b) of the Trust
Indenture Act, or
(2) The Trustee shall cease to be eligible in accordance with
the provisions of Section 7.09 and shall fail to resign after written
request therefor by the Company or by any such Securityholder, or
(3) The Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case, the
Company may remove the Trustee with respect to the applicable series and
appoint a successor Trustee with respect to the applicable series by
written instrument, in duplicate, executed pursuant to a Resolution of the
Company, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor Trustee, or, subject to the
provisions of Section 6.08, any Securityholder who has been a bona fide
holder of a Security or Securities of the applicable series for at least
six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee with respect to the
applicable series. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint a
successor Trustee.
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(c) The holders of a majority in principal amount of the
Securities of any one series voting as a separate class or all series voting as
one class at the time outstanding (determined as provided in Section 8.04) may
at any time remove the Trustee with respect to the applicable series or all
series, as the case may be, and appoint a successor Trustee with respect to the
applicable series or all series, as the case may be, by written instrument or
instruments signed by such holders or their attorneys-in-fact duly authorized,
or by the affidavits of the permanent chairman and secretary of a meeting of the
Securityholders evidencing the vote upon a resolution or resolutions submitted
thereto with respect to such removal and appointment (as provided in Article
IX), and by delivery thereof to the Trustee so removed, to the successor Trustee
and to the Company.
(d) Any resignation or removal of the Trustee and any appointment
of a successor Trustee pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor Trustee as
provided in Section 7.11.
SECTION 7.11. Acceptance by Successor Trustee.
Any successor Trustee with respect to all series of Securities
appointed as provided in Section 7.10 shall execute, acknowledge and deliver to
the Company and to its predecessor Trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee with respect to all series shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, duties and obligations with respect to such
series of its predecessor hereunder, with like effect as if originally named as
Trustee herein; but, nevertheless, on the written request of the Company or of
the successor Trustee, the Trustee ceasing to act shall, upon payment of any
amounts then due it pursuant to the provisions of Section 7.06, execute and
deliver an instrument transferring to such successor Trustee all the rights and
powers with respect to such series of the Trustee so ceasing to act. Upon the
request of any such successor Trustee, the Company shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to
such successor Trustee all such rights and powers. Any Trustee ceasing to act
shall, nevertheless, retain a lien upon all property or funds held or collected
by such Trustee or any successor Trustee to secure any amounts then due it
pursuant to the provisions of Section 7.06.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
such series shall execute and deliver an indenture supplemental hereto wherein
each successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to,
and to vest in, each successor Trustee all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of such series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of such
series as to which the retiring Trustee is not retiring shall continue to be
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vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental Indenture shall
constitute such Trustees co-Trustees of the same trust and that each such
Trustee shall be Trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of such series to which
the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of such series to
which the appointment of such successor Trustee relates.
No successor Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Trustee shall be
qualified under the provisions of Section 7.08 and eligible under the provisions
of Section 7.09.
Upon acceptance of appointment by a successor Trustee as provided in
this Section, the successor Trustee shall at the expense of the Company transmit
notice of the succession of such Trustee hereunder to the holders of Securities
of any applicable series in the manner and to the extent provided in subsection
(c) of Section 5.04 with respect to reports pursuant to subsection (a) of said
Section 5.04.
SECTION 7.12. Successor to Trustee by Merger, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be qualified under the provisions of Section
7.08 and eligible under the provisions of Section 7.09, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee, and deliver such
Securities so authenticated; and in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of any predecessor hereunder or in the name
of the successor Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have;
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provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
SECTION 7.13. Limitations on Rights of Trustee as a Creditor to
Obtain Payment of Certain Claims within Three Months Prior to Default or During
Default, or to Realize on Property as such Creditor Thereafter.
(a) Subject to the provisions of subsection (b) of this Section,
if the Trustee shall be or shall become a creditor, directly or indirectly,
secured or unsecured, of the Company or of any other obligor on the Securities
within three months prior to a default, as defined in subsection (c) of this
Section, or subsequent to such a default, then, unless and until such default
shall be cured, the Trustee shall set apart and hold in a special account for
the benefit of the Trustee individually, the holders of the Securities of the
one or more indenture securities (as defined in subsection (c) of this Section):
(1) An amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal or
interest, effected after the beginning of such three months' period, and
valid as against the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any property
described in paragraph (2) of this subsection, or from the exercise of any
right of set-off which the Trustee could have exercised if a petition in
bankruptcy had been filed by or against the Company upon the date of such
default; and
(2) All property received by the Trustee in respect of any
claims as such creditor, either as security therefor, or in satisfaction
or composition thereof, or otherwise, after the beginning of such three
months' period, or an amount equal to the proceeds of any such property if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) To retain for its own account (i) payments made on account
of any such claim by any person (other than the Company) who is liable
thereon, (ii) the proceeds of the bona fide sale of any such claim by the
Trustee to a third person, and (iii) distributions made in cash,
securities, or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to title 11 of the United States Code or applicable state laws;
(B) To realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior to
the beginning of such three months' period;
(C) To realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as security
for any such claim, if such claim was created after the beginning of such
three months' period and such
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property was received as security therefor simultaneously with the
creation thereof, and if the Trustee shall sustain the burden of proving
that at the time such propert was so received, the Trustee had no
reasonable cause to believe that a default, as defined in subsection (c)
of this Section, would occur within three months; or
(D) To receive payment on any claim referred to in paragraph
(B) or (C) against the release of any property held as security for such
claim as provided in such paragraph (B) or (C), as the case may be, to the
extent of the fair value of such property.
For the purposes of paragraphs (B), (C), and (D), property
substituted after the beginning of such three months' period for property held
as security at the time of such substitution shall, to the extent of the fair
value of the property released, have the same status as the property released,
and to the extent that any claim referred to in any such paragraphs is created
in renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
between the Trustee, the holders of Securities of the one or more series for
which it is acting as Trustee, and the holders of other indenture securities in
such manner that the Trustee, such Securityholders and the holders of other
indenture securities realize, as a result of payments from such special account
and payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to title 11 of the
United States Code or applicable state law, the same percentage of their
respective claims, figured before crediting to the claim of the Trustee anytime
on account of the receipt by it from the Company of the funds and property in
such special account and before crediting to the respective claim's of the
Trustee, such Securityholders, and the holders of other indenture securities
dividends on claims filed against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to title 11 of the United States Code
or applicable state law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other than
from such dividends and from the funds and property so held in such special
account. As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such claim in
bankruptcy or receivership or in proceedings for reorganization pursuant to
title 11 of the United States Code or applicable state law, whether such
distribution is made in cash, securities, or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceeding for
reorganization is pending shall have jurisdiction (i) to apportion among the
Trustee, such Securityholders, and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held in
such special account and the proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this paragraph
due consideration in determining the fairness of the distributions to be made to
the Trustee, such Securityholders and the holders of other indenture securities
with respect to their respective claims, in which event it shall not be
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necessary to liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such claim, or to
make a specific allocation of such distributions as between the secured and
unsecured portions of such claim, or otherwise to apply the provisions of this
paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this subsection
(a) as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period, it
shall be subject to the provisions of this subsection (a) if and only if the
following conditions exist:
(i) The receipt of property or reduction of claim which would
have given rise to the obligation to account, if such Trustee had
continued as trustee, occurred after the beginning of such three months'
period; and
(ii) Such receipt of property or reduction of claim occurred
within three months after such resignation or removal;
(b) There shall be excluded from the operation of subsection (a)
of this Section a creditor relationship arising from:
(1) The ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one year
or more at the time of acquisition by the Trustee;
(2) Advances authorized by a receivership or bankruptcy court
of competent jurisdiction, or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien of
this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the circumstances
surrounding the making thereof is given to the Securityholders at the time
and in the manner provided in Section 5.04(c) with respect to reports
pursuant to subsections (a) and (b) thereof, respectively;
(3) Disbursements made in the ordinary course of business in
the capacity of Trustee under an indenture, transfer agent, registrar,
custodian, Paying Agent, fiscal agent or depositary, or other similar
capacity;
(4) An indebtedness created as a result of services rendered
or premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of this
Section;
(5) The ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the Federal
Reserve Act, as amended, which is directly or indirectly a creditor of the
Company; or
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(6) The acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in
subsection (c) of this Section.
(c) As used in this Section:
(1) The term "default" shall mean any failure to make payment
in full of the principal of or interest upon any of the Securities or upon
the other indenture securities when and as such principal or interest
becomes due and payable.
(2) The term "other indenture securities" shall mean
securities upon which the Company is an obligor (as defined in the Trust
Indenture Act of 1939, as amended) outstanding under any other indenture
(A) under which the Trustee is also trustee, (B) which contains provisions
substantially similar to the provisions of subsection (a) of this Section,
and (C) under which a default exists at the time of the apportionment of
the funds and property held in said special account.
(3) The term "cash transaction" shall mean any transaction in
which full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand.
(4) The term "self-liquidating paper" shall mean any draft,
bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of financing the
purchase, processing, manufacture, shipment, storage or sale of goods,
wares or merchandise and which is secured by documents evidencing title
to, possession of, or a lien upon, the goods, wares or merchandise, or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
(5) The term "Company" shall mean any obligor upon the
Securities.
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Evidence of Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a
specified percentage in principal amount of the Securities of any or all series
may take any action (including the making of any demand or request, the giving
of any notice, consent, or waiver or the taking of any other action), the fact
that at the time of taking any such action the holders of such specified
percentage have joined therein may be evidenced (a) by any instrument or any
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number of instruments of similar tenor executed by such Securityholders in
person or by agent or proxy appointed in writing, or (b) by the record of such
holders of Securities voting in favor thereof at any meeting of such
Securityholders duly called and held in accordance with the provisions of
Article IX, or (c) by a combination of such instrument or instruments and any
such record of such a meeting of such Securityholders.
If there shall be more than one Trustee acting hereunder with
respect to separate series of Securities, such Trustees shall collaborate, if
necessary, in acting under Article IX and in determining whether the holders of
a specified percentage in principal amount of the Securities of any or all
series have taken any such action.
SECTION 8.02. Proof of Execution of Instruments and of Holding of
Securities.
Subject to the provisions of Sections 7.01, 7.02 and 9.05, proof of
the execution of any instrument by a Securityholder or his agent or proxy and
proof of the holding by any person of any of the Securities shall be sufficient
if made in the following manner:
The fact and date of the execution by any such person of any
instrument may be proved in any reasonable manner acceptable to the Trustee.
The ownership of Securities of any series shall be proved by the
Register of such Securities of such series, or by certificates of the Security
registrar or registrars thereof.
The Trustee shall not be bound to recognize any person as a
Securityholder unless and until the title to the Securities held by him is
proved in the manner in this Article VIII provided.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 9.06.
The Trustee may accept such other proof or require such additional
proof of any matter referred to in this Section as it shall deem reasonable.
SECTION 8.03. Who May be Deemed Owners of Securities.
Prior to due presentment for registration of transfer of any
Security, the Company, the Trustee and any agent of the Company or the Trustee
may deem and treat the person in whose name such Security shall be registered
upon the Register of Securities of the series of which such Security is a part
as the absolute owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or an account of the principal of and
interest, subject to Section 2.03, on such Security and for all other purposes;
and neither the Company nor the Trustee nor any agent of the Company or the
Trustee shall be affected by any notice to the contrary. All such payments so
made to any such holder for the time being, or upon his
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order, shall be valid, and, to the extent of the sum or sums so paid, effectual
to satisfy and discharge the liability for moneys payable upon any such
Security.
SECTION 8.04. Securities Owned by Company or Controlled or
Controlling Persons Disregarded for Certain Purposes.
In determining whether the holders of the requisite principal amount
of Securities have concurred in any demand, direction, request, notice, vote,
consent, waiver or other action under this Indenture, Securities which are owned
by the Company or any other obligor on the Securities or by any person directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Company or any other obligor on the Securities shall be
disregarded and deemed not to be outstanding for the purpose of any such
determination, provided that for the purposes of determining whether the Trustee
shall be protected in relying on any such demand, direction, request, notice,
vote, consent, waiver or other action, only Securities which a Responsible
Officer of the Trustee assigned to its principal office knows are so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as outstanding for the purposes of this Section, if the pledgee
shall establish to the satisfaction of the Trustee the pledgee's right to vote
such Securities and that the pledgee is not a person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any such other obligor. Upon request of the Trustee, the Company
shall furnish to the Trustee promptly an Officers' Certificate listing and
identifying all Securities, if any, known by the Company to be owned or held by
or for the account of the Company or any other obligor on the Securities or by
any person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Company or any other obligor on the
Securities; and, subject to the provisions of Section 7.01, the Trustee shall be
entitled to accept such Officers' Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not listed therein
are outstanding for the purpose of any such determination.
SECTION 8.05. Instruments Executed by Securityholders Bind
Future Holders.
At any time prior to (but not after) the evidencing to the Trustee,
as provided in Section 8.01, of the taking of any action by the holders of the
percentage in principal amount of the Securities specified in this Indenture in
connection with such action, any holder of a Security which is shown by the
evidence to be included in the Securities the holders of which have consented to
such action may, by filing written notice with the Trustee at its principal
office and upon proof of holding as provided in Section 8.02, revoke such action
so far as concerns such Security. Except as aforesaid any such action taken by
the holder of any Security and any direction, demand, request, notice, waiver,
consent, vote or other action of the holder of any Security which by any
provisions of this Indenture is required or permitted to be given shall be
conclusive and binding upon such holder and upon all future holders and owners
of such Security, and of any Security issued in lieu thereof or upon
registration of transfer thereof, irrespective of whether any notation in regard
thereto is made upon such Security. Any action taken by the holders of the
percentage in principal amount of the Securities of any or all series specified
in this Indenture in connection with such action shall be
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conclusively binding upon the Company, the Trustee and the holders of all of the
Securities of such series subject, however, to the provisions of Section 7.01.
ARTICLE IX
SECURITYHOLDERS' MEETINGS
SECTION 9.01. Purposes for which Meeting May Be Called.
A meeting of holders of Securities of any or all series may be
called at any time and from time to time pursuant to the provisions of this
Article for any of the following purposes:
(1) To give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of any
default hereunder and its consequences, or to take any other action
authorized to be taken by holders of Securities of any or all series, as
the case may be, pursuant to any of the provisions of Article VI;
(2) To remove the Trustee and appoint a successor Trustee
pursuant to the provisions of Article VII;
(3) To consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
(4) To take any other action authorized to be taken by or on
behalf of the holders of any specified principal amount of the Securities
of any or all series, as the case may be, under any other provision of
this Indenture or under applicable law.
SECTION 9.02. Manner of Calling Meetings.
The Trustee may at any time call a meeting of Securityholders to
take any action specified in Section 9.01, to be held at such time and at such
place in the Borough of Manhattan, City of New York as the Trustee shall
determine. Notice of every meeting of Securityholders setting forth the time and
place of such meeting and in general terms the action proposed to be taken at
such meeting, shall be mailed not less than 20 nor more than 60 days prior to
the date fixed for the meeting.
SECTION 9.03. Call of Meeting by Company or Securityholders.
In case at any time the Company, pursuant to a resolution of its
Board of Directors, or the holders of not less than ten percent in principal
amount of the Securities of any or all series, as the case may be, then
outstanding, shall have requested the Trustee to call a meeting of holders of
Securities of any or all series, as the case may be, to take any action
authorized in Section 9.01 by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
mailed notice of such
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meeting within 20 days after receipt of such request, then the Company or such
holders of Securities in the amount above specified may determine the time and
place in the Borough of Manhattan, City of New York for such meeting and may
call such meeting to take any action authorized in Section 9.01, by mailing
notice thereof as provided in Section 9.02.
SECTION 9.04. Who May Attend and Vote at Meetings.
To be entitled to vote at any meeting of Securityholders a person
shall (a) be a holder of one or more Securities with respect to which the
meeting is being held, or (b) be a person appointed by an instrument in writing
as proxy by such holder of one or more Securities. The only persons who shall be
entitled to be present or to speak at any meeting of Securityholders shall be
the persons, entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 9.05. Regulations May Be Made by Trustee.
Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Securityholders, in regard to proof of the holding of Securities and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved in
the manner specified in Section 8.02 and the appointment of any proxy shall be
proved in the manner specified in said Section 8.02; provided, however, that
such regulations may provide that written instruments appointing proxies regular
on their face, may be presumed valid and genuine without the proof hereinabove
or in said Section 8.02 specified.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 9.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 8.04, at any meeting each
Securityholder or proxy shall be entitled to one vote for each $1,000 principal
amount of Securities held or represented by him, provided, however, that no vote
shall be cast or counted at any meeting in respect of any Security challenged as
not outstanding and ruled by the chairman of the meeting to be not outstanding;
provided, however, that each holder of Original Issue Discount Securities shall
be entitled to one vote for each $1,000 amount which would be due upon
acceleration of his Original Issue Discount Security on the date of the meeting.
The chairman of the meeting shall have no right to vote other than by virtue of
Securities held by him or instruments in writing as aforesaid duly designating
him as the person to vote on behalf of other Securityholders. Any meeting of
Securityholders duly called pursuant to the provisions of
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Section 9.02 or 9.03 may be adjourned from time to time, and the meeting may be
held so adjourned without further notice.
At any meeting of Securityholders, the presence of persons holding
or representing Securities in principal amount sufficient to take action on the
business for the transaction of which such meeting was called shall constitute a
quorum, but, if less than a quorum is present, the persons holding or
representing a majority in principal amount of the securities represented at the
meeting may adjourn such meeting with the same effect for all intents and
purposes, as though a quorum had been present.
SECTION 9.06. Manner of Voting at Meetings and Record to be Kept.
The vote upon any resolution submitted to any meeting of
Securityholders shall be by written ballots on which shall be subscribed the
signatures of the holders of Securities or of their representatives by proxy and
the principal amount or principal amounts of the Securities held or represented
by them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A record
in duplicate of the proceedings of each meeting of Securityholders shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 9.02. The record shall show the
principal amount or principal amounts of the Securities voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
SECTION 9.07. Exercise of Rights of Trustee, Securityholders and
Holders of Preferred Securities Not to Be Hindered or Delayed.
Nothing in this Article contained shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Securityholders or
any rights expressly or impliedly conferred hereunder to make such call any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee, to the Securityholders or the holders of Preferred
Securities under any of the provisions of this Indenture or of the Securities.
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ARTICLE X
SUPPLEMENTAL INDENTURES
SECTION 10.01. Purposes for Which Supplemental Indentures May Be
Entered into without Consent of Securityholders.
The Company, when authorized by a Resolution of the Company, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto, in form satisfactory to such Trustee (which
shall comply with the provisions of the Trust Indenture Act of 1939 as then in
effect), for one or more of the following purposes:
(a) To evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company pursuant
to Article XI hereof and to comply with Section 15.07.
(b) To add to the covenants of the Company such further covenants,
restrictions or conditions as the Company and the Trustee shall consider to be
for the protection of the holders of all or any series of Securities (and if
such covenants, restrictions or conditions are to be for the benefit of less
than all series of Securities, stating that such covenants, restrictions or
conditions are expressly being included solely for the benefit of such series),
and to make the occurrence, or the occurrence and continuance, of a default in
any such additional covenants, restrictions or conditions a default or an Event
of Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however, that in
respect to any such additional covenant, restriction or condition such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such default or
may limit the remedies available to the Trustee upon such default;
(c) To add or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal, and
with or without interest coupons;
(d) To change or eliminate any of the provisions of this
Indenture; provided, however, that any such change or elimination shall become
effective only when there is no Security of any series outstanding created prior
to the execution of such supplemental indenture which is entitled to the benefit
of such provision;
(e) To establish the form or terms of Securities of any series
as permitted by Sections 2.01 and 2.02;
(f) To cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with
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any other provisions contained herein or in any supplemental indenture, or to
make such other provision in regard to matters or questions arising under this
Indenture or any supplemental indenture; provided that such action shall not
adversely affect the interest of the holders of Securities of any series in any
material respect or, in the case of the Securities of a series issued to a Bear
Stearns Trust and for so long as any of the corresponding series of Preferred
Securities issued by such Bear Stearns Trust shall remain outstanding, the
holders of such Preferred Securities;
(g) To mortgage or pledge to the Trustee as security for the
Securities any property or assets which the Company may desire to mortgage or
pledge as security for the Securities; and
(h) To qualify, or maintain the qualification of, the Indenture
under the Trust Indenture Act.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, mortgage, pledge or assignment of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent of
the holders of any of the Securities at the time outstanding, notwithstanding
any of the provisions of Section 10.02.
SECTION 10.02. Modification of Indenture with Consent of Holders of
a Majority in Principal Amount of Securities.
With the consent (evidenced as provided in Section 8.01) of the
holders of not less than a majority in principal amount of the Securities of all
series at the time outstanding (determined as provided in Section 8.04) affected
by such supplemental indenture (voting as one class), the Company, when
authorized by a Resolution of the Company, and the Trustee may from time to time
and at any time enter into an indenture or indentures supplemental hereto (which
shall be in conformity with the provisions of the Trust Indenture Act of 1939 as
then in effect) for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders
of the Securities of each such series; provided, however, that no such
supplemental indenture shall (i) change the fixed maturity of any Securities, or
reduce the rate or extend the time of payment of any interest thereon, or reduce
the principal amount thereof, or change the provisions pursuant to which the
rate of interest on any Security is determined if such change could reduce the
rate of interest thereon, or reduce the minimum rate of interest thereon, or
reduce any amount payable upon any redemption thereof, or adversely affect any
right to convert the Securities in accordance herewith, or reduce the amount to
be paid at maturity or upon redemption, or make the principal thereof or any
interest thereon or on any overdue principal amount payable in any
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coin or currency other than that provided in the Security without the consent of
the holder of each Security so affected, (ii) reduce the aforesaid percentage of
Securities, the holders of which are required to consent to any such
supplemental indenture, without the consent of the holders of all Securities
then Outstanding, or (iii) modify any of the provisions of this Section, Section
4.07 or Section 6.06, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without
the consent of the holder of each Security affected thereby or (iv) modify the
provisions of Article XIV with respect to the subordination of outstanding
Securities of any series in a manner adverse to the holders thereof, without the
consent of the holder of each Security so affected, provided that, in the case
of the Securities of a series issued to a Bear Stearns Trust, so long as any of
the corresponding series of Preferred Securities issued by such Bear Stearns
Trust remains outstanding, (i) no such amendment shall be made that adversely
affects the holders of such Preferred Securities in any material respect
(including any amendment which would result in a Bear Stearns Trust being
classified as other than a grantor trust for United States federal income
taxes), and no termination of this Indenture shall occur, and no waiver of any
Event of Default with respect to such series or compliance with any covenant
with respect to such series under this Indenture shall be effective, without the
prior consent of the holders of at least a majority of the aggregate liquidation
preference of such Preferred Securities then outstanding unless and until the
principal (and premium, if any) of the Securities of such series and all accrued
and unpaid interest (including any Additional Sums, Additional Interest,
Compounded Interest or Special Interest, if any) thereon have been paid in full;
and (ii) no amendment shall be made to Section 6.05 of this Indenture that would
impair the rights of the holders of Preferred Securities provided therein
without the prior consent of the holders of each Preferred Security then
outstanding unless and until the principal (and premium, if any) of the
Securities of such series and all accrued and unpaid interest (including any
Additional Sums, Additional Interest, Compounded Interest and Special Interest)
thereon have been paid in full.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities or Preferred
Securities, or which modifies the rights of holders of Securities or holders of
Preferred Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the
holders of Securities or holders of Preferred Securities of any other series.
Upon the request of the Company, accompanied by a copy of a
Resolution of the Company certified by the Secretary or an Assistant Secretary
of the Company authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Securityholders
as aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
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It shall not be necessary for the consent of the Securityholders
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company
shall mail a notice to the holders of Securities of each series so affected,
setting forth in general terms the substance of such supplemental indenture. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 10.03. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the
provisions of this Article, this Indenture shall be and be deemed to be modified
and amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the holders of Securities shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
The Trustee shall be entitled to receive, and subject to the
provisions of Section 7.01 shall be entitled to rely upon, an Opinion of Counsel
as conclusive evidence that any such supplemental indenture complies with the
provisions of this Article 10.
SECTION 10.04. Securities May Bear Notation of Changes by
Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article, or after any
action taken at a Securityholders' meeting pursuant to Article IX, may bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture or as to any action taken at any such meeting. If the
Company or the Trustee shall so determine, new Securities so modified as to
conform, in the opinion of the Trustee and the Board of Directors of the
Company, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Securities then outstanding.
SECTION 10.05. Revocation and Effect of Consents.
Subject to Section 8.05, until an amendment, supplement, waiver or
other action becomes effective, a consent to it by a Securityholder of a
Security is a continuing consent conclusive and binding upon such Securityholder
and every subsequent Securityholder of the same Security or portion thereof, and
of any Security issued upon the registration of transfer thereof or in exchange
therefor or in place thereof, even if notation of the consent is not made
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on any such Security. Subject to Section 8.05, any such Securityholder or
subsequent Securityholder may not revoke the consent as to his Security or
portion of a Security.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Securityholders entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then,
notwithstanding the preceding paragraph, those Persons who were Securityholders
at such record date (or their duly designated proxies), and only such Persons,
shall be entitled to consent or revoke such consent to such amendment,
supplement or waiver, whether or not such Persons continue to be Securityholders
after such record date. No such consent shall be valid or effective for more
than 180 days after such record date.
After an amendment, supplement, waiver or other action becomes
effective, it shall bind every Securityholder.
ARTICLE XI
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 11.01. Company May Consolidate, Etc., on Certain Terms.
The Company covenants that it will not merge or consolidate with any
other corporation or sell or convey all or substantially all of its assets to
any person, firm or corporation, unless (i) either the Company shall be the
continuing corporation, or the successor corporation (if other than the Company)
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 the due and punctual payment of the principal
of and interest on all the Securities, according to their tenor, and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed by the Company by supplemental indenture in form
satisfactory to the Trustee, executed and delivered to the Trustee by such
corporation, (ii) the Company or such successor corporation, as the case may be,
shall not, immediately after such merger or consolidation, or such sale or
conveyance, be in default in the performance of any such covenant or condition,
and (iii) in the case of Securities of a series issued to a Bear Stearns Trust,
such consolidation, merger, sale or conveyance is permitted under the related
Trust Agreement and Guarantee and does not give rise to any breach or violation
of the related Trust Agreement or Guarantee.
SECTION 11.02. Successor Corporation Substituted.
In case of any such consolidation, merger, sale or conveyance and
upon any such assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein as the party of the first part. Such
successor corporation thereupon may cause to be signed, and may issue either in
its own name or in the name of the Company, any or all of the Securities
issuable hereunder which theretofore shall not have been delivered to the
Trustee; and upon the
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order of such successor corporation, instead of the Company, and subject to all
the terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Securities which previously shall have
been signed and delivered by the officers of the Company to the Trustee, and any
Securities which such successor corporation thereafter shall cause to be signed
and delivered to the Trustee. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale or conveyance such
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 11.03. Opinion of Counsel to Trustee.
The Trustee shall be entitled to receive, and subject to the
provisions of Section 7.01 shall be entitled to rely upon, an Opinion of Counsel
as conclusive evidence that any such consolidation, merger, sale or conveyance
and any such assumption, complies with the provisions of this Article and that
all conditions precedent herein provided for relating to such transaction have
been complied with.
ARTICLE XII
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 12.01. Satisfaction and Discharge of Indenture.
If (a) the Company shall deliver to the Trustee for cancellation all
Securities of any series theretofore authenticated (other than any Securities of
such series which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.07) and not theretofore canceled,
or (b) all the Securities of such series not theretofore canceled or delivered
to the Trustee for cancellation shall have become due and payable, or are by
their terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and the Company shall deposit with the
Trustee as trust funds the entire amount sufficient to pay at maturity or upon
redemption all of such Securities not theretofore canceled or delivered to the
Trustee for cancellation, including principal and any interest due or to become
due to such date of maturity or redemption date, as the case may be, and if in
either case the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company with respect to Securities of such series, then
this Indenture shall cease to be of further effect with respect to Securities of
such series (except as to (i) remaining rights of registration of transfer,
conversion, substitution and exchange and the Company's right of optional
redemption of Securities of such series, (ii) rights hereunder of holders to
receive payments of principal of and any interest on, the Securities of such
series, and other rights,
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duties and obligations of the holders of Securities of such series as
beneficiaries hereof with respect to the amounts, if any, so deposited with the
Trustee, and (iii) the rights, obligations and immunities of the Trustee
hereunder), and the Trustee, on demand of the Company, and at the cost and
expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture. The Company hereby agrees to
compensate the Trustee for any services thereafter reasonably and properly
rendered and to reimburse the Trustee for any costs or expenses theretofore and
thereafter reasonably and properly incurred by the Trustee in connection with
this Indenture or the Securities of such series.
Notwithstanding the satisfaction and discharge of this Indenture
with respect to the Securities of any or all series, the obligations of the
Company to the Trustee under Section 7.06 hereof shall survive.
SECTION 12.02. Application by Trustee of Funds Deposited for Payment
of Securities.
Subject to Section 12.04, all moneys deposited with the Trustee
pursuant to Section 12.01 shall be held in trust and applied by it to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent), to the holders of the particular Securities of
such series, for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest.
SECTION 12.03. Repayment of Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this Indenture
with respect to Securities of any series, all moneys with respect to Securities
of such series then held by any Paying Agent under the provisions of this
Indenture shall, upon demand of the Company, be paid to the Trustee and
thereupon such Paying Agent shall be released from all further liability with
respect to such moneys.
SECTION 12.04. Repayment of Moneys Held by Trustee.
Any moneys deposited with the Trustee or any Paying Agent for the
payment of the principal of or any interest on any Securities of any series and
not applied but remaining unclaimed by the holders of Securities of such series
for two years after the date upon which such payment shall have become due and
payable, shall, at the request of the Company, be repaid to the Company by the
Trustee or by such Paying Agent; and the holder of any of the Securities of such
series entitled to receive such payment shall thereafter look only to the
Company for the payment thereof; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once a week for two successive
weeks (in each case on any day of the week) in an Authorized Newspaper, or
mailed to the registered holders thereof, a notice that said moneys have not
been so applied and that after a date named therein any unclaimed balance of
said money then remaining will be returned to the Company.
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ARTICLE XIII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS,
DIRECTORS AND EMPLOYEES
SECTION 13.01. Incorporators, Stockholders, Officers, Directors
and Employees of Company Exempt from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security, or for any claim based thereon or otherwise
in respect thereof, shall be had against any incorporator, stockholder, officer,
director or employee, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations,
and that no personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors, as such, of
the Company or any successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against
every such incorporator, stockholder, officer or director, as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom are hereby expressly waived and released as
a condition of and as a consideration for, the execution of this Indenture and
the issue of such Securities.
ARTICLE XIV
SUBORDINATION OF SECURITIES
SECTION 14.01. Agreement to Subordinate.
The Company, for itself, its successors and assigns, covenants and
agrees, and each holder of a Security of any series likewise covenants and
agrees by his acceptance thereof, that the Securities of any series shall be
subordinate and junior in right of payment to all Senior Indebtedness of the
Company, and that upon any payment or distribution of assets of the Company upon
any liquidation, dissolution, winding-up, reorganization, assignment for benefit
of creditors, marshaling of assets or any bankruptcy, insolvency, debt
restructurings or similar proceedings or in connection with any insolvency or
bankruptcy proceedings of the Company, the holders of Senior Indebtedness of the
Company shall first be entitled to receive payment in full of principal of (and
premium, if any) and interest, if any, on such Senior Indebtedness before any
payment shall be made on account of the principal of or interest on any of the
Securities. In the event of any such proceeding, after payment in full of all
sums owing with respect to Senior Indebtedness of the Company, the holders of
the Securities of
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each series, together with the holders of any obligations of the Company ranking
on a parity with the Securities, 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
principal of and interest on the Securities of any series before any payment or
other distribution, whether in cash, property or otherwise, shall be made on
account of any capital stock or any obligations of the Company ranking junior to
the Securities. In addition, in the event of any such proceeding, if any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, including any such payment or distribution which
may be payable or deliverable by reason of the payment of any other indebtedness
of the Company being subordinated to the payment of the Securities of any series
shall be received by the Trustee or the holders of the Securities of any series
before all Senior Indebtedness of the Company is paid in full, such payment or
distribution shall be held in trust for the benefit of and shall be paid over to
the holders of such Senior Indebtedness of the Company or their representative
or representatives or to the trustee or trustees under any indenture under which
any instruments evidencing any of such Senior Indebtedness of the Company may
have been issued, ratably, for application to the payment of all Senior
Indebtedness of the Company remaining unpaid until all such Senior Indebtedness
of the Company shall have been paid in full, after giving effect to any
concurrent payment or distribution to the holders of such Senior Indebtedness of
the Company. The obligations of the Company in respect of the Securities of all
series shall rank on a parity with any obligations of the Company ranking on a
parity with the Securities. Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.06.
The Company shall give prompt written notice to the Trustee of any
insolvency, receivership, conservatorship, reorganization, readjustment of debt,
marshaling of assets and liabilities or similar proceedings or any liquidation
or winding-up of or relating to the Company as a whole, whether voluntary or
involuntary and of any event specified in Section 14.09. The Trustee, subject to
the provisions of Section 7.01, shall be entitled to assume that, and may act as
if, no event referred to in the preceding sentence has occurred unless a
Responsible Officer of the Trustee assigned to the Trustee's Corporate Trustee
Administration Department has received at the principal office of the Trustee
from the Company or any one or more holders of Senior Indebtedness of the
Company or any trustee or representative therefor (who shall have been certified
or otherwise established to the satisfaction of the Trustee to be such a holder
or trustee or representative) written notice thereof. Upon any distribution of
assets of the Company referred to in this Article, the Trustee and holders of
the Securities of each series shall be entitled to rely upon any order or decree
of a court of competent jurisdiction in which proceedings relating to any event
specified in the first sentence of this paragraph are pending for the purpose of
ascertaining the persons entitled to participate in such distribution, the
holders of the Senior 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 this Article, and the Trustee, subject to the provisions
of Article VII, and the holders of the Securities of each series shall be
entitled to rely upon a certificate of the liquidating trustee or agent or other
person making any distribution to the Trustee or to the holders of the
Securities of each series for the purpose of ascertaining the persons entitled
to participate in such distribution, the holders of the Senior Indebtedness of
the Company, the
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amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article. In the absence
of any such liquidating trustee, agent or other person, the Trustee shall be
entitled to rely upon a written notice by a Person representing himself to be a
holder of Senior Indebtedness of the Company (or a trustee or representative on
behalf of such holder) as evidence that such Person is a holder of such Senior
Indebtedness (or is such a trustee or representative). In the event that the
Trustee determines, in good faith, that further evidence is required with
respect to the right of any Person, as a holder of Senior Indebtedness of the
Company, to participate in any payment or distribution pursuant to this Article,
the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness held by
such Person, as to the extent to which such Person is entitled to participation
in such payment or distribution, and as to other facts pertinent to the rights
of such Person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
The Securities shall rank pari passu with, and shall not be superior
in right of payment to, any securities issued and outstanding under the Existing
Indenture.
SECTION 14.02. Obligation of the Company Unconditional.
Nothing contained in this Article or elsewhere in this Indenture is
intended to or shall impair, as between the Company and the holders of the
Securities of each series, the obligation of the Company, which is absolute and
unconditional, to pay to such holders the principal of and interest on such
Securities of each series when, where and as the same shall become due and
payable, all in accordance with the terms of such Securities, or is intended to
or shall affect the relative rights of such holders and creditors of the Company
other than the holders of the Senior Indebtedness of the Company, nor shall
anything herein or therein prevent the Trustee or the holder of any Security
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article of the
holders of Senior Indebtedness of the Company in respect of cash, property, or
securities of the Company received upon the exercise of any such remedy.
SECTION 14.03. Limitations on Duties to Holders of Senior
Indebtedness of the Company.
With respect to the holders of Senior Indebtedness of the Company,
the Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness of
the Company shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness of the Company, except with respect to moneys held in trust
pursuant to the first paragraph of Section 14.01.
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SECTION 14.04. Notice to Trustee of Facts Prohibiting Payment.
Notwithstanding any of the provisions of this Article or any other
provisions of this Indenture, the Trustee shall not at any time be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment of moneys to or by the Trustee unless and until a Responsible Officer of
the Trustee assigned to its Corporate Trustee Administration Department shall
have received at the principal office of the Trustee written notice thereof from
the Company or from one or more holders of Senior Indebtedness of the Company or
from any trustee or representative therefor who shall have been certified by the
Company or otherwise established to the reasonable satisfaction of the Trustee
to be such a holder or trustee or representative; and, prior to the receipt of
any such written notice, the Trustee, subject to the provisions of Section 7.01,
shall be entitled in all respects to assume that no such facts exist; provided,
however, that, if prior to the fifth Business Day preceding the date upon which
by the terms hereof any such moneys may become payable for any purpose, or in
the event of the execution of an instrument pursuant to Section 12.01
acknowledging satisfaction and discharge of this Indenture, then if prior to the
second Business Day preceding the date of such execution, the Trustee shall not
have received with respect to such moneys the notice provided for in this
Section, then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such moneys and/or apply
the same to the purpose for which they were received, and shall not be affected
by any notice to the contrary which may be received by it on or after such date;
provided, however, no such application shall affect the obligations under this
Article of the Persons receiving such moneys from the Trustee.
SECTION 14.05. Application by Trustee of Moneys Deposited with It.
Anything in this Indenture to the contrary notwithstanding, any
deposit of moneys by the Company with the Trustee or any agent (whether or not
in trust) for any payment of the principal of or interest on any Securities
shall, except as provided in Section 14.04, be subject to the provisions of
Section 14.01.
SECTION 14.06. Subrogation.
Subject to the payment in full of all Senior Indebtedness of the
Company, the holders of the Securities of each series shall be subrogated to the
rights of the holders of such Senior Indebtedness to receive payments or
distributions of assets of the Company applicable to such Senior Indebtedness
until the Securities shall be paid in full, and none of the payments or
distributions to the holders of such Senior Indebtedness to which the holders of
the Securities of any series or the Trustee would be entitled except for the
provisions of this Article or of payments over, pursuant to the provisions of
this Article, to the holders of such Senior Indebtedness by the holders of such
Securities or the Trustee shall, as between the Company, its creditors other
than the holders of such Senior Indebtedness, and the holders of such
Securities, be deemed to be a payment by the Company to or on account of such
Senior Indebtedness; it being understood that the provisions of this Article are
and are intended solely
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for the purpose of defining the relative rights of the holders of such
Securities, on the one hand, and the holders of the Senior Indebtedness of the
Company, on the other hand.
SECTION 14.07. Subordination Rights Not Impaired by Acts or
Omissions of Company or Holders of Senior Indebtedness of the Company.
No right of any present or future holders of any Senior Indebtedness
of the Company to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof with which any such
holder may have or be otherwise charged. The holders of Senior Indebtedness of
the Company may, at any time or from time to time and in their absolute
discretion, change the manner, place or terms of payment, change or extend the
time of payment of, or renew or alter, any such Senior Indebtedness of the
Company, or amend or supplement any instrument pursuant to which any such Senior
Indebtedness of the Company is issued or by which it may be secured, or release
any security therefor, or exercise or refrain from exercising any other of their
rights under the Senior Indebtedness of the Company including, without
limitation, the waiver of default thereunder, all without notice to or assent
from the holders of the Securities of each series or the Trustee and without
affecting the obligations of the Company, the Trustee or the holders of such
Securities under this Article.
SECTION 14.08. Authorization of Trustee to Effectuate Subordination
of Securities.
Each holder of a Security of any series, by his acceptance thereof,
authorizes and expressly directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effectuate, as between the holders of such
Securities and the holders of Senior Indebtedness of the Company, the
subordination provided in this Article. If, in the event of any proceeding or
other action relating to the Company referred to in the first sentence of
Section 14.01, a proper claim or proof of debt in the form required in such
proceeding or action is not filed by or on behalf of the holders of the
Securities of any series prior to fifteen days before the expiration of the time
to file such claim or claims, then the holder or holders of Senior Indebtedness
of the Company shall have the right to file and are hereby authorized to file an
appropriate claim for and on behalf of the holders of such Securities.
SECTION 14.09. No Payment when Senior Indebtedness in Default.
In the event and during the continuation of any default in the
payment of principal of (or premium, if any) or interest on any Senior
Indebtedness, or in the event that any event of default with respect to any
Senior Indebtedness shall have occurred and be continuing and shall have
resulted in such Senior Indebtedness becoming or being declared due and payable
prior to the date on which it would otherwise have become due and payable,
unless and until such event of default shall have been cured or waived or shall
have ceased to exist and such acceleration shall have been rescinded or
annulled, or in the event any judicial proceeding shall be pending with respect
to any such default in payment or such event or
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default, then no payment or distribution of any kind or character, whether in
cash, properties or securities shall be made by the Company on account of
principal of (or premium, if any) or interest (including any Additional Sums,
Additional Interest, Compounded Interest and Special Interest), if any, on the
Securities or on account of the purchase or other acquisition of Securities by
the Company or any subsidiary.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such holder, then and in such event payment shall be paid over and delivered
forthwith to the Company.
SECTION 14.10. Right of Trustee to Hold Senior Indebtedness of the
Company.
The Trustee shall be entitled to all of the rights set forth in this
Article in respect of any Senior Indebtedness of the Company at any time held by
it in its individual capacity to the same extent as any other holder of such
Senior Indebtedness, and nothing in this Indenture shall be construed to deprive
the Trustee of any of its rights as such holder.
SECTION 14.11. Article XIV Not to Prevent Defaults.
The failure to make a payment pursuant to the terms of Securities of
any series by reason of any provision in this Article shall not be construed as
preventing the occurrence of a default under this Indenture.
ARTICLE XV
CONVERSION OF SECURITIES
SECTION 15.01. Applicability of Article.
Securities of any series which are convertible into Capital Stock of
the Company shall be convertible in accordance with their terms and (except as
otherwise specified as contemplated by Section 2.01 for Securities of any
series) in accordance with this Article.
SECTION 15.02. Conversion Privilege.
If Securities of a series are subject to conversion, as specified
pursuant to Section 2.01, then subject to and upon compliance with the
provisions of this Article, at the option of the holder thereof, any such
Security may, at any time until and including, but not after the close of
business on the date specified in such Security, or in case such Security or
some portion thereof shall be called for redemption pursuant to Section 3.02
prior to such date, then, with respect to such Security or portion thereof as is
so called, until and including, but (if no default is made in making due
provision for the payment of the redemption price) not after, the close of
business on, the date fixed for redemption, be converted, in whole, or in part
in
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whole multiples of $1,000 principal amount, at 100% of the principal amount of
such Security (or portion thereof), into fully paid and non-assessable shares of
the Company's Capital Stock, as specified in the Security, issuable upon
conversion of the Securities, at the conversion price in effect at the Date of
Conversion (as hereinafter defined).
SECTION 15.03. Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the holder of any
Security to be converted shall surrender such Security to the Company at any
time during usual business hours at the offices or agencies to be maintained by
the Company in accordance with the provisions of Section 4.02 with respect to
the Securities to be converted, accompanied by a fully executed written notice,
in the form set forth on the reverse of the Security, that the holder elects to
convert such Security or a stated portion thereof constituting a whole multiple
of $1,000 principal amount, and, if such Security is surrendered for conversion
during the period between the close of business on the record date next
preceding the Interest Payment Date (as defined in the Security) and the opening
of business on the Interest Payment Date and has not been called for redemption
on a redemption date within such period (or on such Interest Payment Date),
accompanied also by payment of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of the Security being surrendered
for conversion. Such notice shall also state the name or names (with address) in
which the certificate or certificates for shares of Capital Stock shall be
issued. Securities surrendered for conversion shall (if so required by the
Company or the registrar of such Securities) be duly endorsed by, or be
accompanied by written instrument or instruments of transfer in form
satisfactory to the Company and such registrar duly executed by, the holder or
its attorney duly authorized in writing. As promptly as practicable after the
receipt of such notice and the surrender of such Security as aforesaid, the
Company shall, subject to the provisions of Section 15.09, issue and deliver at
such office or agency to such holder, or to such other person on his written
order, a certificate or certificates for the number of full shares of Capital
Stock issuable on such conversion of Securities in accordance with the
provisions of this Article and cash as provided in Section 15.04, in respect of
any fraction of a share of Capital Stock otherwise issuable upon conversion.
Such conversion shall be deemed to have been effected immediately prior to the
close of business on the date (herein called the "Date of Conversion") on which
such notice shall have been received by the Company and such Security shall have
been surrendered as aforesaid, accompanied (if required by this Section) also by
payment of an amount equal to the interest payable on the next Interest Payment
Date on the principal amount of the Security being surrendered for conversion,
and the person or persons in whose name or names any certificate or certificates
for shares of Capital Stock shall be issuable upon such conversion shall be
deemed to have become on the Date of Conversion the holder or holders of record
of the shares of Capital Stock represented thereby; provided, however, that any
such surrender on any date when the stock transfer books of the Company shall be
closed shall constitute the person or persons in whose name or names the
certificate or certificates for such shares are to be issued as the recordholder
or holders thereof for all purposes at the opening of business on the next
succeeding day on which such stock transfer books are open but such conversion
shall nevertheless be at the conversion price in effect at the close of business
on the date when such Security shall have been so surrendered with the
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conversion notice. In the case of conversion of a portion, but less than all, of
a Security, the Company shall execute, and the Trustee shall authenticate and
deliver to the holder thereof, at the expense of the Company, a Security or
Securities in the aggregate principal amount of the unconverted portion of the
Security surrendered. Except as otherwise expressly provided in Section 2.01, no
payment or adjustment shall be made for interest accrued on any Security
converted or for accrued dividends or distributions on any Capital Stock issued
upon conversion of any Security or portion thereof.
SECTION 15.04. Fractional Interests.
No fractions of shares or scrip representing fractions of shares
shall be issued upon conversion of Securities. If more than one Security shall
be surrendered for conversion at one time by the same holder, the number of full
shares which shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Securities so surrendered. If any
fraction of a share of Capital Stock would, except for the provisions of this
Section, be issuable on the conversion of any Security or Securities, the
Company shall make payment in lieu thereof in an amount of United States dollars
equal to the value of such fraction computed on the basis of the current market
price of the Capital Stock, rounded to the nearest cent. The current market
price of a share of Capital Stock is the closing price reported by the New York
Stock Exchange consolidated transaction reporting system for the last trading
day before the Date of Conversion. In the absence of such a quotation, the
Company shall determine the current market price on the basis of such quotation
or quotations as it considers appropriate. Any determination that the Company or
the Board of Directors makes regarding fractional shares shall be conclusive.
SECTION 15.05. Conversion Price.
The conversion price per share of Capital Stock issuable upon
conversion of the Securities shall be as specified in such Securities.
SECTION 15.06. Adjustment of Conversion Price.
The conversion price (herein called the "Conversion Price") shall be
subject to adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend or make a
distribution in shares of Capital Stock, (2) subdivide its outstanding shares of
Capital Stock into a greater number of shares or (3) combine its outstanding
shares of Capital Stock into a smaller number of shares, the Conversion Price in
effect immediately prior to such action shall be adjusted so that the holder of
any Security thereafter surrendered for conversion shall be entitled to receive
the number of shares of Capital Stock which he would have owned immediately
following such action had such Security been converted immediately prior
thereto. An adjustment made pursuant to this subsection (a) shall become
effective immediately, except as provided in subsection (e) below, after the
record date in the case of a dividend and shall become effective immediately
after the effective date in the case of a subdivision or combination. If after
an adjustment a holder upon conversion of the Capital Stock may receive shares
of two or more
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classes of Capital Stock of the Company, the Company shall determine the
allocation of the adjusted Conversion Price between the classes of Capital
Stock. After such allocation, the conversion privilege and Conversion Price of
each class of Capital Stock shall thereafter be subject to adjustment on terms
comparable to those set forth in this paragraph.
(b) In case the Company shall issue rights or warrants to all
holders of Capital Stock entitling them (for a period not exceeding 45 days from
the date of such issuance) to subscribe for or purchase shares of Capital Stock
at a price per share less than the current market price per share (as determined
pursuant to subsection (d) below) of the Capital Stock on the record date
mentioned below, the Conversion Price shall be adjusted to a price, computed to
the nearest cent, in accordance with the following formula:
N x P
AP = --------------------
CP x O + M
where:
AP = the adjusted Conversion Price.
CP = the current Conversion Price.
O = the number of shares of Capital Stock outstanding on the record
date for the distribution.
N = the number of additional shares of Capital Stock offered.
P = the offering price per share of the additional shares.
M = the current market price per share of Capital Stock on the record
date. Such adjustment shall become effective immediately, except as
provided in subsection (e) below, after the record date for the
determination of holders entitled to receive such rights or
warrants.
(c) In case the Company shall distribute to all holders of Capital
Stock, evidences of indebtedness, equity securities other than Capital Stock or
other assets (other than cash dividends or other distributions to the extent
paid from current or retained earnings of the Company), or shall distribute to
all holders of Capital Stock rights or warrants to subscribe to securities
(other than those referred to in subsection (b) above), then in each such case
the Conversion Price shall be adjusted in accordance with the following formula:
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CP x M - F
AP = --------------------
M
where:
AP = the adjusted Conversion Price.
CP = the current Conversion Price.
M = the current market price per share of Capital Stock on the record
date mentioned below.
F = the fair market value on the record date of the assets,
securities, rights or warrants applicable to one share of Capital
Stock, as determined by the Company. Such adjustment shall become
effective immediately, except as provided in subsection (e) below,
after the record date for the determination of stockholders entitled
to receive such distribution.
(d) For the purpose of any computation under subsections (b) and
(c) above, the current market price per share of Capital Stock on any date shall
be deemed to be the average of the closing price of the Capital Stock reported
by the New York Stock Exchange consolidated transaction reporting system for the
30 consecutive trading days commencing 45 trading days before the date of
determination. In the absence of one or more such quotations, the Company shall
determine the current market price on the basis of such quotations as it
considers appropriate.
(e) In any case in which this Section shall require that an
adjustment be made immediately following a record date, the Company may elect to
defer the effectiveness of such adjustment (but in no event until a date later
than the effective time of the event giving rise to such adjustment), in which
case the Company shall, with respect to any Security converted after such record
date and before such adjustment shall have become effective (i) defer paying any
cash payment pursuant to Section 15.04 or issuing to the holder of such Security
the number of shares of Capital Stock and other capital stock of the Company
issuable upon such conversion in excess of the number of shares of Capital Stock
and other capital stock of the Company issuable thereupon only on the basis of
the Conversion Price prior to adjustment, and (ii) not later than five Business
Days after such adjustment shall have become effective, pay to such holder the
appropriate cash payment pursuant to Section 15.04 and issue to such holder the
additional shares of Capital Stock and other capital stock of the Company
issuable on such conversion.
(f) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least 1% in such
price; provided that any adjustments which by reason of this subsection (f) are
not required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under
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this Article shall be made to the nearest cent or to the nearest one-hundredth
of a share, as the case may be.
(g) Whenever the Conversion Price is adjusted as herein provided,
the Company shall promptly (i) file with the Trustee and each conversion agent
an Officers' Certificate setting forth the Conversion Price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment, which certificate shall be conclusive evidence of the correctness of
such adjustment, and (ii) mail or cause to be mailed a notice of such adjustment
to each holder of Securities entitled to the benefits of this Article at his
address as the same appears on the registry books of the Company.
Anything in this Section to the contrary notwithstanding the Company
shall be entitled to make such adjustments in the Conversion Price, in addition
to those required by this Section, and to make any election under Treasury
Regulation ss.1.305-3(d)(2), as it in its discretion shall determine to be
advisable in order that any stock dividend, subdivision of shares, distribution
of rights or warrants to purchase stock or securities, or distribution of other
assets (other than cash dividends) hereafter made by the Company to its
stockholders shall not be taxable.
SECTION 15.07. Continuation of Conversion Privilege in Case of
Reclassification, Change, Merger, Consolidation or Sale of Assets.
If any of the following shall occur, namely: (a) any
reclassification or change of outstanding shares of Capital Stock issuable upon
conversion of the Securities (other than a change in par value, or from par
value to no par value, or from no par value to par value, or as a result of a
subdivision or combination), (b) any consolidation, merger or combination of the
Company with another corporation as a result of which the holders of Capital
Stock shall be entitled to receive stock, other securities or other assets with
respect to or in exchange for Capital Stock or (c) sale or conveyance of all or
substantially all of the property or business of the Company as an entirety as a
result of which the holders of Capital Stock shall be entitled to receive stock,
other securities or other assets with respect to or in exchange for Capital
Stock, then the Company or such successor or purchasing corporation, as the case
may be, shall, as a condition precedent to such reclassification, change,
consolidation, merger, combination, sale or conveyance, execute and deliver to
the Trustee a supplemental indenture (which shall conform to the Trust Indenture
Act of 1939 as in force at the date of the execution thereof) providing that the
holder of each Security then outstanding shall have the right to convert such
Security into the kind and amount of shares of stock and other securities and
property receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance by a holder of the number of shares of Capital
Stock issuable upon conversion of such Security immediately prior to such
reclassification, change, consolidation, merger, combination, sale or
conveyance. Such supplemental indenture shall provide for adjustments which
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article. If, in the case of any such consolidation, merger,
combination, sale or conveyance, the stock or other securities and property
receivable thereupon by a holder of shares of Capital Stock includes shares of
stock or other securities and property of a
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corporation other than the successor or purchasing corporation, as the case may
be, in such consolidation, merger, combination, sale or conveyance, then such
supplemental indenture shall also be executed by such other corporation and
shall contain such additional provisions to protect the interests of the holders
of the Securities as the Board of Directors shall reasonably consider necessary
by reason of the foregoing. The provisions of this Section shall similarly apply
to successive consolidations, mergers, combinations, sales or conveyances.
Notice of the execution of each such supplemental indenture shall be
mailed to each holder of Securities at his address as the same appears on the
registry books of the Company.
Neither the Trustee nor any conversion agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or securities or property receivable by holders of Securities upon the
conversion of their Securities after any such reclassification, change,
consolidation, merger, sale or conveyance or to any adjustment to be made with
respect thereto, but, subject to the provisions of Sections 7.01 and 7.02, may
accept as conclusive evidence of the correctness of any such provisions, and
shall be protected in relying upon, the Officers' Certificate (which the Company
shall be obligated to file with the Trustee prior to the execution of such any
supplemental indenture) with respect thereto.
SECTION 15.08. Notice of Certain Events.
In case:
(a) the Company shall declare a dividend (or any other
distribution) payable to the holders of Capital Stock otherwise than in cash; or
(b) the Company shall authorize the granting to the holders of
Capital Stock of rights to subscribe for or purchase any shares of stock of any
class or of any other rights; or
(c) the Company shall authorize any reclassification or change of
the Capital Stock (other than a subdivision or combination of its outstanding
shares of Capital Stock), or any consolidation or merger to which the Company is
a party and for which approval of any stockholders of the Company is required,
or the sale or conveyance of all or substantially all the property or business
of the Company; then, the Company shall cause to be filed at the office or
agency maintained for the purpose of conversion of the Securities as provided in
Section 4.02, and shall cause to be mailed to each holder of Securities entitled
to the benefits of this Article, at his address as it shall appear on the
registry books of the Company, at least 20 days before the date hereinafter
specified (or the earlier of the dates hereinafter specified, in the event that
more than one date is specified), a notice stating the date on which (1) a
record is expected to be taken for the purpose of such dividend, distribution or
rights, or if a record is not to be taken, the date as of which the holders of
Capital Stock of record to be entitled to such dividend, distribution or rights
are to be determined, or (2) such reclassification, change, consolidation,
merger, sale, conveyance, dissolution, liquidation or winding-up is expected to
become effective and the date, if any is to be fixed, as of which it is expected
that holders of
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Capital Stock of record shall be entitled to exchange their shares of Capital
Stock for securities or other property deliverable upon such reclassification,
change, consolidation, merger, sale, conveyance, dissolution, liquidation or
winding-up.
SECTION 15.09. Taxes on Conversion.
The Company will pay any and all documentary, stamp or similar taxes
payable to the United States of America or any political subdivision or taxing
authority thereof or therein in respect of the issue or delivery of shares of
Capital Stock on conversion of Securities pursuant thereto; provided, however,
that the Company shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issue or delivery of shares of Capital
Stock in a name other than that of the holder of the Securities to be converted
and no such issue or delivery shall be made unless and until the person
requesting such issue or delivery has paid to the Company the amount of any such
tax or has established, to the satisfaction of the Company, that such tax has
been paid. The Company shall pay no tax that may be payable with respect to any
other taxes imposed in connection with conversion of Securities.
SECTION 15.10. Company to Provide Stock.
The Company shall reserve, free from preemptive rights, out of its
authorized but unissued shares of Capital Stock, sufficient shares to provide
for the conversion of the Securities from time to time as such Securities are
presented for conversion, provided, that nothing contained herein shall be
construed to preclude the Company from satisfying its obligations in respect of
the conversion of Securities by delivery of repurchased shares of Capital Stock
which are held in the treasury of the Company.
If any shares of Capital Stock to be reserved for the purpose of
conversion of Securities hereunder require registration with or approval of any
governmental authority under any federal or state law before such shares may be
validly issued or delivered upon conversion, then the Company covenants that it
will in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be, provided, however, that nothing in
this Section shall be deemed to affect in any way the obligations of the Company
to convert Securities into Capital Stock as provided in this Article.
Before taking any action which would cause an adjustment reducing
the Conversion Price below the then par value, if any, of the Capital Stock, the
Company will take all corporate action which may, in the Opinion of Counsel, be
necessary in order that the Company may validly and legally issue fully paid and
nonassessable shares of Capital Stock at such adjusted Conversion Price.
The Company covenants that all shares of Capital Stock which may be
issued upon conversion of Securities will upon issue be fully paid and
nonassessable by the Company and free of preemptive rights.
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SECTION 15.11. Disclaimer of Responsibility for Certain Matters.
Neither the Trustee nor any agent of the Trustee shall at any time
be under any duty or responsibility to any holder of Securities to determine
whether any facts exist which may require an adjustment of the Conversion Price,
or with respect to the Officers' Certificate referred to in Section 15.06(g), or
with respect to the nature or extent of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. Neither the Trustee nor any agent
of the Trustee shall be accountable with respect to the validity or value (or
the kind or amount) of any shares of Capital Stock, or of any securities or
property, which may at any time be issued or delivered upon the conversion of
any Security; and neither the Trustee nor any conversion agent makes any
representation with respect thereto. Neither the Trustee nor any agent of the
Trustee shall be responsible for any failure of the Company to issue, register
the transfer of or deliver any shares of Capital Stock or stock certificates or
other securities or property upon the surrender of any Security for the purpose
of conversion or, subject to Sections 7.01 and 7.02, to comply with any of the
covenants of the Company contained in this Article.
SECTION 15.12. Return of Funds Deposited for Redemption of
Converted Securities.
Any funds which at any time shall have been deposited by the Company
or on its behalf with the Trustee or any other Paying Agent for the purpose of
paying the principal of and interest on any of the Securities and which shall
not be required for such purposes because of the conversion of such Securities,
as provided in this Article, shall after such conversion be repaid to the
Company by the Trustee or such other Paying Agent.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
SECTION 16.01. Successors and Assigns of Company Bound by Indenture.
All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 16.02. Acts of Board, Committee or Officer of Successor
Corporation Valid.
Any act or proceeding by any provision of this Indenture authorized
or required to be done or performed by any board, committee or officer or
officers of the Company shall and may be done and performed with like force and
effect by the like board, committee or officer or officers of any corporation
that shall at the time be the lawful sole successor of the Company.
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<PAGE>
SECTION 16.03. Required Notices or Demands May Be Served by Mail.
Any notice or demand which by any provisions of this Indenture is
required or permitted to be given or served by the Trustee, by the holders of
Securities or by the holders of Preferred Securities to or on the Company may be
given or served by registered mail postage prepaid addressed (until another
address is filed by the Company with the Trustee for such purpose), as follows:
The Bear Stearns Companies Inc., 245 Park Avenue, New York, New York 10167,
Attention: Secretary. Any notice, direction, request, demand, consent or waiver
by the Company, by any Securityholder or by any holder of a Preferred Security
to or upon the Trustee shall be deemed to have been sufficiently given, made or
filed, for all purposes, if given, made or filed in writing at the principal
office of the Trustee, Attention: Corporate Trustee Administration Department.
SECTION 16.04. Officers' Certificate and Opinion of Counsel to Be
Furnished upon Applications or Demands by the Company.
Upon any request or application by the Company to the Trustee to
take any action under any of the provisions of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such document is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture, other than certificates provided pursuant to
Section 4.06, shall include (1) a statement that the person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement 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 that the
certificate or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of counsel may be based, insofar as it
relates to factual matters, upon the certificate, statement or opinion of or
representations by an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows that the certificate, statement or
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opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Company
or of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants, unless such officer or counsel, as the case may be, knows that the
certificate or opinion or representations with respect to the accounting matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 16.05. Payments Due on Saturdays, Sundays, and Holidays.
Except as otherwise specified as contemplated by Section 2.01, in
any case where the date of payment of interest on or principal of the Securities
of any series or the date fixed for any redemption of any Security of any series
shall not be a Business Day, then payment of interest or principal need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the date fixed for the payment of interest
on or principal of the Security or the date fixed for any redemption of any
Security of such series, and no additional interest shall accrue for the period
alter such date and before payment.
SECTION 16.06. Provisions Required by Trust Indenture Act of 1939 to
Control.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed under Sections 310 through 317 of the Trust Indenture
Act of 1939, as amended, such duties shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act which
may be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or excluded, as the case may be.
SECTION 16.07. Indenture and Securities to be Construed in
Accordance with the Laws of the State of New York.
This Indenture and each Security shall be deemed to be a contract
made under the laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of said State, provided, however, that the
rights and duties of the Trustee hereunder shall be construed in accordance with
the laws of the State of the Trustee's principal place of business.
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<PAGE>
SECTION 16.08. Provisions of the Indenture and Securities for the
Sole Benefit of the Parties and the Securityholders.
Nothing in this Indenture or in the Securities, expressed or
implied, shall give or be construed to give any person, firm or corporation,
other than the parties hereto and their successors and assigns and the holders
of the Securities, any legal or equitable right, remedy or claim under or in
respect of this Indenture, or under any covenant, condition and provision herein
contained; all its covenants, conditions and provisions being for the sole
benefit of the parties hereto and their successors and assigns and of the
holders of the Securities and, to the extent expressly provided in Sections
6.01, 6.05, 6.06, 9.07, 10.01 and 10.02, the holders of Preferred Securities.
SECTION 16.09. Indenture May be Executed in Counterparts.
This Indenture may be executed in any number of counterparts, each
of which shall be an original; but such counterparts shall together constitute
but one and the same instrument.
SECTION 16.10. Securities in Foreign Currencies.
Whenever this Indenture provides for any action by, or any
distribution to, holders of Securities denominated in United States dollars and
in any other currency, in the absence of any provision to the contrary in the
form of Security of any particular series, the relative amount in respect of any
Security denominated in a currency other than United States dollars shall be
treated for any such action or distribution as that amount of United States
dollars that could be obtained for such amount on such reasonable basis of
exchange and as of such date as the Company may specify in a written notice to
the Trustee.
The Chase Manhattan Bank, the party of the second part, hereby
accepts the trusts in this Indenture declared and provided, upon the terms and
conditions hereinabove set forth.
[remainder of page left blank intentionally]
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IN WITNESS WHEREOF, The Bear Stearns Companies Inc., the party of
the first part, has caused this Indenture to be signed by its Chief Operating
Officer, and The Chase Manhattan Bank, the party of the second part, has caused
this Indenture to be signed by one of its Vice Presidents, all as of the day and
year first written above.
THE BEAR STEARNS COMPANIES INC.
By: /s/ William J. Montgoris
-----------------------------------------
Name: William J. Montgoris
Title: Chief Operating Officer
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ William G. Keenan
-----------------------------------------
Name: William G. Keenan
Title: Trust Officer
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================================================================================
FIRST SUPPLEMENTAL INDENTURE
between
THE BEAR STEARNS COMPANIES INC.
and
THE CHASE MANHATTAN BANK
Dated as of December 16, 1998
7 1/2% JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURES
DUE DECEMBER 15, 2008
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.01 Definition of Terms................. ............................2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.01 Designation and Principal Amount.................................4
SECTION 2.02 Stated Maturity..................................................4
SECTION 2.03 Form and Payment; Minimum Transfer Restriction...................4
SECTION 2.04 Exchange and Registration of Transfer of Debentures; Depositary..5
SECTION 2.05 Interest.........................................................7
ARTICLE III
REDEMPTION AND PREPAYMENT OF THE DEBENTURES
SECTION 3.01 Optional Redemption by Company...................................7
SECTION 3.02 Special Event Prepayment.........................................8
SECTION 3.03 Notice of Prepayment.............................................8
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.01 Extension of Interest Payment Period.............................8
SECTION 4.02 Notice of Extension..............................................9
ARTICLE V
EXPENSES
SECTION 5.01 Payment of Expenses..............................................9
SECTION 5.02 Payment upon Resignation or Removal.............................10
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ARTICLE VI
FORM OF DEBENTURE
SECTION 6.01 Form of Debenture...............................................10
ARTICLE VII
ISSUE OF DEBENTURES
SECTION 7.01 Issue of Debentures.............................................10
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Ratification of Base Indenture; Supplemental Indenture Controls.11
SECTION 8.02 Trustee Not Responsible for Recitals............................11
SECTION 8.03 Governing Law...................................................11
SECTION 8.04 Separability....................................................11
SECTION 8.05 Counterparts....................................................12
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<PAGE>
FIRST SUPPLEMENTAL INDENTURE, dated as of December 16, 1998 (the
"Supplemental Indenture"), between The Bear Stearns Companies Inc., a Delaware
corporation (the "Company"), and The Chase Manhattan Bank, as trustee (the
"Trustee") under the Indenture, dated as of December 16, 1998, between the
Company and the Trustee (the "Base Indenture" and together with all supplements
thereto, the "Indenture").
WHEREAS, the Company executed and delivered the Base Indenture to the
Trustee to provide for the future issuance of the Company's unsecured
subordinated debentures to be issued from time to time in one or more series as
might be determined by the Company under the Indenture, in an unlimited
aggregate principal amount which may be authenticated and delivered as provided
in the Base Indenture;
WHEREAS, pursuant to the terms of the Base Indenture, the Company desires
to provide for the establishment of a new series of its unsecured subordinated
debentures to be known as its 7 1/2% Junior Subordinated Deferrable Interest
Debentures due December 15, 2028 (the "Debentures"), the form and substance of
such Debentures and the terms, provisions and conditions thereof to be set forth
as provided in the Base Indenture and this Supplemental Indenture;
WHEREAS, Bear Stearns Capital Trust II, a Delaware statutory business trust
(the "Trust"), has offered to the underwriters (the "Underwriters") named in
Schedule I to the Underwriting Agreement, dated December 9, 1998 (the
"Underwriting Agreement"), among the Underwriters, the Trust and the Company,
12,000,000 shares ($300,000,000 aggregate liquidation amount) of its 7 1/2%
Trust Issued Preferred Securities (the "Preferred Securities"), representing
undivided beneficial interests in the assets of the Trust and proposes to invest
the proceeds from such offering in $300,000,000 aggregate principal amount of
the Debentures;
WHEREAS, the Company has requested that the Trustee execute and deliver
this Supplemental Indenture; all requirements necessary to make this
Supplemental Indenture a valid instrument in accordance with its terms, and to
make the Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed; and the execution and delivery of this Supplemental Indenture has
been duly authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the Holders thereof, and for the purpose of setting forth, as
provided in the Base Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees with
the Trustee as follows:
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.01 Definition of Terms.
For all purposes of this Supplemental Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms which are defined in the Base Indenture have the same
meanings when used in this Supplemental Indenture;
(b) the terms defined in this Article have the meaning assigned to them in
this Article and include the plural as well as the singular;
(c) all other terms used herein which are defined in the Trust Indenture
Act, whether directly or by reference therein, have the meanings assigned to
them therein;
(d) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles in
the United States of America, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with respect to
any computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States of America at the date
of such computation;
(e) a reference to a Section or Article is to a Section or Article of this
Supplemental Indenture;
(f) the words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Supplemental Indenture as a whole and not to any particular
Article, Section or other subdivision;
(g) headings are for convenience of reference only and do not affect
interpretation; and
(h) the following terms have the meanings given to them in the Trust
Agreement: (i) Administrators; (ii) Affiliate; (iii) Business Day; (iv) Clearing
Agency; (v) Closing Date; (vi) Common Securities; (vii) Delaware Trustee; (viii)
Distribution; (ix) Exchange Act; (x) Guarantee; (xi) Like Amount; (xii) Opinion
of Counsel; (xiii) Preferred Securities; (xiv) Preferred Securities Certificate;
(xv) Property Trustee; and (xvi) Trust Securities.
(i) References herein to the prepayment of the Debentures shall be deemed
to be references to the redemption of the Debentures for the purposes of Article
III of the Base Indenture.
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"Additional Sums" means the additional amounts as may be necessary in order
that the amount of Distributions then due and payable by the Trust on the
outstanding Preferred Securities and Common Securities shall not be reduced as a
result of any additional taxes, duties and other governmental charges to which
the Trust has become subject as a result of a Special Event.
"Compounded Interest" shall have the meaning specified in Section 4.01.
"Coupon Rate" has the meaning specified in Section 2.05.
"Deferred Interest" has the meaning specified in Section 4.01.
"Extension Period" has the meaning specified in Section 4.01.
"Global Debenture" has the meaning specified in Section 2.04.
"Investment Company Event" means the receipt by the Trust of an Opinion of
Counsel to the effect that, as a result of the occurrence of a change in law or
regulation or a change (including any announced proposed change) in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority, there is more than an
insubstantial risk that the Trust is or will be considered an "investment
company" that is required to be registered under the 1940 Act, which change or
proposed change becomes effective or would become effective, as the case may be,
on or after the date of the issuance of the Preferred Securities of the Trust.
"Liquidation Amount" means the stated amount of $25 per Preferred Security.
"Optional Redemption Price" has the meaning specified in Section 3.01.
"Prepayment Date" has the meaning specified in Section 3.01.
"Special Event" means an Investment Company Event or a Tax Event.
"Special Event Prepayment" means the prepayment of the Debentures upon the
occurrence and continuation of a Special Event.
"Tax Event" means the receipt by the Trust of an Opinion of Counsel to the
effect that, as a result of any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein, or
as a result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement or decision is announced on or after the
Closing Date, there is more than an insubstantial risk that (i) the Trust is, or
will be within 90 days of the date of such opinion, subject to United States
federal income tax with respect to income received or accrued on the Debentures,
(ii) interest payable by the Company on the Debentures is not, or within 90 days
of the date of such opinion, will not be, deductible by the Company, in whole or
in part, for United States federal income tax purposes, or (iii) the
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Trust is, or will be within 90 days of the date of such opinion, subject to more
than a de minimis amount of taxes, duties or other governmental charges.
"Trust Agreement" means the Amended and Restated Trust Agreement of the
Trust, dated as of December 16, 1998.
"Underwriters" has the meaning specified in the third recital to this
Supplemental Indenture.
"Underwriting Agreement" has the meaning specified in the third recital to
this Supplemental Indenture.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.01 Designation and Principal Amount.
The aggregate principal amount of Debentures outstanding at any time shall
not exceed $309,278,375 (except as set forth in Section 2.01(2) of the Base
Indenture). Upon receipt of a written order of the Company (executed as required
by Section 2.01 of the Base Indenture) for the authentication and delivery of a
series of Debentures and satisfaction of the requirements of the fifth paragraph
of Section 2.01 of the Base Indenture, the Trustee shall authenticate Debentures
for original issuance in an aggregate principal amount not to exceed
$309,278,375 (except as set forth in Section 2.01(2) of the Base Indenture).
SECTION 2.02 Stated Maturity.
The Stated Maturity of the Debentures is December 15, 2028 and shall not be
subject to extension.
SECTION 2.03 Form and Payment; Minimum Transfer Restriction.
(a) Except as provided in Section 2.04, the Debentures shall be issued to
the Trust and held by the Property Trustee in fully registered certificated form
without coupons in minimum denominations of $25 and integral multiples of $25 in
excess thereof. Principal and interest on the Debentures issued in certificated
form will be payable, the transfer of such Debentures will be registrable and
such Debentures will be exchangeable for Debentures bearing identical terms and
provisions at the principal office of the Trustee; provided, however, that
payment of interest may be made at the option of the Company (i) by check mailed
to the registered holder at such address as shall appear in the Register or (ii)
by transfer to an account maintained by such Person as specified in such
Register, provided that proper transfer instructions have been received by the
preceding record date. Notwithstanding the foregoing, so long as the registered
holder of any Debentures is the Property Trustee, the payment of the principal
of and interest (including Additional Sums, Additional Interest and
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<PAGE>
Compounded Interest, if any) on such Debentures held by the Property Trustee
will be made at such place and to such account as may be designated by the
Property Trustee.
(b) The Debentures may be transferred or exchanged only in minimum
denominations of $25 and integral multiples of $25 in excess thereof; and any
attempted transfer, sale or other disposition of Debentures in a denomination of
less than $25 shall be deemed to be void and of no legal effect whatsoever (the
foregoing restriction being the "Minimum Transfer Restriction").
SECTION 2.04 Exchange and Registration of Transfer of Debentures;
Depositary.
If an early dissolution of the Trust occurs as described in the Trust
Agreement and Debentures are to be distributed to the holders of the Preferred
Securities, a Like Amount of the Debentures will be issued to holders of the
Trust Securities in the same form as the Trust Securities that such Debentures
replace in accordance with the following procedures:
(a) So long as Debentures are eligible for book-entry settlement with the
Depositary, or unless otherwise required by law, all Debentures that are so
eligible may be represented by one or more Debentures in global form registered
in the name of Cede & Co. the nominee of the Depositary, except as otherwise
specified below. The transfer and exchange of beneficial interests in any such
Debenture in global form shall be shown on, and transfers thereof will be
effected only through, records maintained by participants in the Depositary.
Debentures that are distributed in replacement of Preferred Securities
represented by a global Preferred Security will be represented by a global
Debenture (the "Global Debenture").
Except as provided below, beneficial owners of a Debenture in global form
shall not be entitled to have certificates registered in their names, will not
receive or be entitled to receive physical delivery of certificates in
definitive form and will not be considered registered holders of such Debentures
in global form.
(b) Trust Securities held in certificated form, except for certificates
representing Preferred Securities held by Cede & Co. as nominee of the
Depositary (or any successor Clearing Agency or its nominee), shall upon
presentation to the Trustee by the Property Trustee or by the holder thereof or
by the Property Trustee on behalf of such holders be exchanged for a Like Amount
of Debentures in fully registered certificated form.
(c) Any Global Debenture may be endorsed with or have incorporated in the
text thereof such legends or recitals or changes not inconsistent with the
provisions of the Indenture as may be required by the Depositary or required to
comply with the rules and regulations of any exchange, interdealer quotation
system or self-regulatory organization upon which the Debentures may be listed
or traded or to conform with any usage with respect
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<PAGE>
thereto, or to indicate any special limitations or restrictions to which any
particular Debentures are subject.
(d) Notwithstanding any other provisions of the Indenture (other than the
provisions set forth in this Section 2.04(d)), a Debenture in global form may
not be exchanged in whole or in part for Debentures registered, and no transfer
of a Debenture in global form may be registered, in the name of any person other
than Cede & Co. unless (i) the Depositary (A) has notified the Company that it
is unwilling or unable to continue as Depositary for such Global Debenture or
(B) has ceased to be a clearing agency registered as such under the Exchange
Act, (ii) there shall have occurred and be continuing an Event of Default, or
any event which after notice or lapse of time or both would be an Event of
Default under the Indenture, with respect to such Global Debenture, or (iii) the
Company in its sole discretion instructs the Trustee to exchange such Global
Debenture for a Debenture that is not a Global Debenture (in which case such
exchange shall be effected by the Trustee).
The Depositary shall be a clearing agency registered under the Exchange
Act. The Company initially appoints The Depository Trust Company to act as
Depositary with respect to the Debentures in global form. Initially, the Global
Debentures shall be issued to the Depositary, registered in the name of Cede &
Co., as the nominee of the Depositary, and deposited with the Trustee as
custodian for Cede & Co.
If at any time the Depositary for the Global Debentures notifies the
Company that it is unwilling or unable to continue as Depositary for such
Debentures or has ceased to be a Clearing Agency registered as such under the
Exchange Act, the Company may appoint a successor Depositary with respect to
such Debentures. If a successor Depositary for the Debentures is not appointed
by the Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company will execute, and the Trustee, upon
receipt of an Officers' Certificate for authentication and delivery of
Debentures, will authenticate and deliver, Debentures in definitive form, in an
aggregate principal amount equal to the principal amount of the Global
Debentures, in exchange for the such Global Debentures.
Definitive Debentures issued in exchange for all or a part of a Global
Debenture pursuant to this Section 2.04(d) shall be registered in such names and
in such authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee. Upon execution and authentication, the Trustee shall deliver such
definitive Debentures to the person in whose names such definitive Debentures
are so registered.
At such time as all interests in a Global Debenture have been redeemed,
exchanged, repurchased or canceled, such Global Debenture shall be, upon receipt
thereof, canceled by the Trustee in accordance with standing procedures and
instructions of the Depositary. At any time prior to such cancellation, if any
interest in a Global Debenture is exchanged for definitive Debentures, redeemed,
exchanged, or canceled, or transferred for part of a Global Debenture, the
principal amount of such Global Debenture shall, in accordance with the standing
procedures and instructions of the Depositary be reduced, and an
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endorsement shall be made on such Global Debenture by, or at the direction of,
the Trustee to reflect such reduction.
SECTION 2.05 Interest.
(a) Each Debenture will bear interest at the rate (the "Coupon Rate") of 7
1/2% per annum, until the principal thereof becomes due and payable, and on any
overdue principal and (to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
Coupon Rate, compounded quarterly, payable (subject to the provisions of Article
4) quarterly in arrears on the 15th day of January, April, July and October of
each year (each, an "Interest Payment Date"), commencing on January 15, 1999 to
the Person in whose name such Debenture is registered, subject to certain
exceptions, at the close of business on the Business Day next preceding such
Interest Payment Date. If the Debentures are issued in certificated form (other
than to the Property Trustee), the record dates for payment of interest will be
the 1st day of the month in which the relevant Interest Payment Date occurs.
Until liquidation, if any, of the Trust, each Debenture will be held in the name
of the Property Trustee in trust for the benefit of the holders of the Trust
Securities.
(b) The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. In the event that any date on
which interest is payable on the Debentures is not a Business Day, then payment
of interest payable on such date will be made on the next succeeding day which
is a Business Day with the same force and effect as if made on the date such
payment was originally payable, without any interest or other payment with
respect to any such delay.
ARTICLE III
REDEMPTION AND PREPAYMENT OF THE DEBENTURES
SECTION 3.01 Optional Redemption by Company.
Subject to the provisions of Article III of the Base Indenture, except as
otherwise may be specified in Section 3.02 or elsewhere in this Supplemental
Indenture, the Company shall have the right to prepay the Debentures, in whole
or in part, from time to time, on or after December 15, 2003, at a prepayment
price (the "Optional Redemption Price") equal to the outstanding principal
amount of the Debentures plus, in each case, accrued and unpaid interest,
including Additional Sums, Additional Interest and Compounded Interest thereon
to the date of prepayment (the "Prepayment Date").
If the Debentures are only partially prepaid pursuant to this Section 3.01,
the Debentures will be selected for prepayment by any method utilized by the
Trustee. The Optional Redemption Price, together with any required interest
payment, shall be paid prior to 12:00 Noon, New York City time, on the
Prepayment Date or at such earlier time as the Company determines provided that
the Company shall deposit with the Trustee an amount sufficient to pay the
Optional Redemption Price, together with any required interest payment, by 10:00
a.m., New York City time, on the date such amounts are to be paid.
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<PAGE>
SECTION 3.02 Special Event Prepayment.
If a Special Event shall occur and be continuing, the Company may, at its
option, prepay the Debentures in whole (but not in part) at any time within 90
days of the occurrence of such Special Event, at a prepayment price (the
"Special Event Prepayment Price") equal to 100% of the principal amount of such
Debentures plus accrued and unpaid interest including Additional Sums,
Additional Interest and Compounded Interest thereon to but excluding the
Prepayment Date.
SECTION 3.03 Notice of Prepayment.
Subject to Article III of the Base Indenture, notice of any prepayment will
be mailed at least 30 days but not more than 60 days before the redemption date
to each holder of Debentures to be prepaid at its registered address. Unless the
Company defaults in payment of the Prepayment Price, on and after the Prepayment
Date interest ceases to accrue on such Debentures called for prepayment.
If the Trust is required to pay any additional taxes, duties or other
governmental charges as a result of a Special Event, the Company will also pay
any Additional Sums on the Debentures.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.01 Extension of Interest Payment Period.
So long as an Event of Default under Section 6.01 of the Base Indenture
shall not have occurred and be continuing, the Company shall have the right,
subject to the provisions of Section 2.10 of the Base Indenture, at any time and
from time to time during the term of the Debentures, to defer payments of
interest by extending the interest payment period of such Debentures for a
period not exceeding 20 consecutive quarterly periods (the "Extension Period"),
during which Extension Period no interest shall be due and payable; provided
that no Extension Period shall end on a date other than an Interest Payment Date
or extend beyond the Stated Maturity or any earlier redemption date. To the
extent permitted by applicable law, interest, the payment of which has been
deferred because of the extension of the interest payment period pursuant to
this Section 4.01, will bear interest thereon at the Coupon Rate compounded
semiannually ("Compounded Interest"). At the end of the Extension Period, the
Company shall pay all interest accrued and unpaid on the Debentures, including
any Additional Sums, Additional Interest and Compounded Interest (together,
"Deferred Interest") to the holders of the Debentures in whose names the
Debentures are registered in the Register on the first record date preceding the
end of the Extension Period. Before the termination of any Extension Period, the
Company may further extend such period, provided that such period together with
all such further extensions thereof shall not exceed 20 consecutive quarterly
periods, or extend beyond the Stated Maturity or any earlier redemption date.
Upon the termination of any Extension Period and upon the payment of all
Deferred
-8-
<PAGE>
Interest then due, the Company may commence a new Extension Period, subject to
the foregoing requirements. No interest shall be due and payable during an
Extension Period, except at the end thereof, but the Company may prepay at any
time all or any portion of the interest accrued during an Extension Period.
SECTION 4.02 Notice of Extension.
(a) If the Property Trustee is the only registered holder of the Debentures
at the time the Company selects (or extends) an Extension Period, the Company
shall give written notice to the Administrators, the Property Trustee and the
Trustee of its selection (or extension) of such Extension Period at least five
Business Days before the earlier of (i) the next succeeding date on which
Distributions on the Preferred Securities issued by the Trust are payable, or
(ii) the date the Trust is required to give notice of the record date, or the
date such Distributions are payable, to any applicable exchange, interdealer
quotation system or self-regulatory organization or to holders of the Preferred
Securities issued by the Trust, but in any event not less than five Business
Days before such record date. The Property Trustee shall give notice of the
Company's election to begin or extend a new Extension Period to the holders of
the Preferred Securities.
(b) If the Property Trustee is not the only holder of the Debentures at the
time the Company selects (or extends) an Extension Period, the Company shall
give the holders of the Debentures and the Trustee written notice of its
selection (or extension) of such Extension Period at least 10 Business Days
before the earlier of (i) the next succeeding Interest Payment Date or (ii) the
date the Company is required to give notice of the record or payment date of
such interest payment to any applicable self-regulatory organization or to
holders of the Debentures.
(c) The quarterly period in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.02 shall be counted as one of the 20
consecutive quarterly periods permitted in the maximum Extension Period
permitted under Section 4.01.
ARTICLE V
EXPENSES
SECTION 5.01 Payment of Expenses.
In connection with the offering, sale and issuance of the Debentures to the
Property Trustee and in connection with the sale of the Preferred Securities by
the Trust, the Company, in its capacity as borrower with respect to the
Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and issuance
of the Debentures, including commissions to the Underwriters payable pursuant to
the Underwriting Agreement and compensation of the Trustee under the Indenture
in accordance with the provisions of Section 7.06 of the Base Indenture;
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<PAGE>
(b) pay all costs and expenses of the Trust (including, without limitation,
costs and expenses relating to the organization of the Trust, the fees and
expenses of the Property Trustee and the Delaware Trustee, the costs and
expenses relating to the operation of the Trust, including, without limitation,
costs and expenses of accountants, attorneys, statistical or bookkeeping
services, expenses for printing and engraving and computing or accounting
equipment, paying agent(s), registrar(s), transfer agent(s), duplicating, travel
and telephone and other telecommunications expenses and costs and expenses
incurred in connection with the acquisition, financing, and disposition of Trust
assets);
(c) pay all costs and expenses related to the enforcement by the Property
Trustee of the rights of the registered holders of the Preferred Securities;
(d) be primarily liable for any indemnification obligations arising with
respect to the Trust Agreement or the Underwriting Agreement; and
(e) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and expenses
with respect to such taxes of the Trust.
SECTION 5.02 Payment upon Resignation or Removal.
Upon termination of this Supplemental Indenture or the Base Indenture or
the removal or resignation of the Trustee pursuant to Section 7.10 of the Base
Indenture, the Company shall pay to the Trustee all amounts accrued to the date
of such termination, removal or resignation. Upon termination of the Trust
Agreement or the removal or resignation of the Delaware Trustee or the Property
Trustee, as the case may be, pursuant to Section 8.10 of the Trust Agreement,
the Company shall pay to the Delaware Trustee or the Property Trustee, and their
respective counsel, as the case may be, all amounts accrued to the date of such
termination, removal or resignation.
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.01 Form of Debenture.
The Debentures and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the form attached hereto as Exhibit
A.
ARTICLE VII
ISSUE OF DEBENTURES
SECTION 7.01 Issue of Debentures.
Debentures in the aggregate principal amount of up to $309,278,375 may,
upon execution of this Supplemental Indenture, be executed by the Company and
delivered to the
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<PAGE>
Trustee for authentication, and the Trustee shall thereupon authenticate and
make available for delivery said Debentures to or upon the written order of the
Company, signed by its Chairman of the Board, any Vice Chairman of the Board,
the President, any Vice Chairman, any Executive Vice President, the Chief
Operating Officer or the Chief Financial Officer and by its Treasurer or
Assistant Treasurer, Controller or the Secretary or an Assistant Secretary
without any further action by the Company, except as otherwise provided in
Section 2.01 of the Base Indenture.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Ratification of Base Indenture; Supplemental Indenture
Controls.
The Base Indenture, as supplemented by this Supplemental Indenture, is in
all respects ratified and confirmed, and this Supplemental Indenture shall be
deemed part of the Base Indenture in the manner and to the extent herein and
therein provided. The provisions of this Supplemental Indenture shall supersede
the provisions of the Base Indenture to the extent the Indenture is inconsistent
herewith.
SECTION 8.02 Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
Supplemental Indenture.
SECTION 8.03 Governing Law.
THIS SUPPLEMENTAL INDENTURE AND EACH DEBENTURE SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER THE INTERNAL LAWS OF THE STATE OF NEW YORK, AND FOR ALL
PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID
STATE, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF.
SECTION 8.04 Separability.
In case any one or more of the provisions contained in this Supplemental
Indenture or in the Debentures shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Supplemental
Indenture or of the Debentures, but this Supplemental Indenture and the
Debentures shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
-11-
<PAGE>
SECTION 8.05 Counterparts.
This Supplemental Indenture may be executed in any number of counterparts
each of which shall be an original; but such counterparts shall together
constitute but one and the same instrument.
[remainder of page left blank intentionally]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed on the date or dates indicated in the
acknowledgments and as of the day and year first above written.
THE BEAR STEARNS COMPANIES INC.
By: /s/ William J. Montgoris
--------------------------------------
Name: William J. Montgoris
Title: Chief Operating Officer
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ William G. Keenan
--------------------------------------
Name: William G. Keenan
Title: Trust Officer
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<PAGE>
EXHIBIT A
7 1/2% JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE
DUE DECEMBER 15, 2028
Registered No. __________
Dated: ____________ CUSIP __________
Registered Holder: [The Chase Manhattan Bank, as Property Trustee of Bear
Stearns Capital Trust II]*
The Bear Stearns Companies Inc., a corporation duly organized and existing
under the laws of the State of Delaware (herein referred to as the "Company,"
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to the Registered
Holder named above, the principal sum [of __________ Dollars ($_____)]**
[specified in the Schedule annexed hereto]***, on December 15, 2028 in such coin
or currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debt. The Company further promises
to pay to the registered holder hereof as hereinafter provided (a) interest on
said principal sum (subject to deferral as set forth herein) at the rate of 7
1/2% per annum (the "Coupon Rate"), in like coin or currency, quarterly in
arrears on the 15th day of January, April, July and October (each an "Interest
Payment Date") commencing January 15, 1999 from the date next preceding the date
hereof to which interest has been paid or duly provided for (unless (i) no
interest has yet been paid or duly provided for on this debenture (the
"Debenture"), in which case from the date of original issuance, or (ii) the date
hereof is before an Interest Payment Date but after the related Record Date (as
defined below), in which case from such following Interest Payment Date or next
succeeding Business Day to which interest shall have been paid; provided,
however, that if the Company shall default in payment of the interest due on
such following Interest Payment Date or Business Day, then from the next
preceding date to which interest has been paid or duly provided for), until the
principal hereof shall become due and payable, plus (b) interest on overdue
principal and, to the extent permitted by applicable law, on any interest
payment that is not made when due at the Coupon Rate, compounded quarterly. The
interest so payable will, subject to certain exceptions provided in the
Indenture hereinafter referred to, be paid to the person in whose name this
Debenture is registered at the close of business on the Record Date next
preceding such Interest Payment Date. The Record Date shall be the Business Day
next preceding the Interest Payment Date, unless this Certificate is registered
to a holder other than the Property Trustee or a nominee of The Depository Trust
Company, in which case the Record Date will be the 1st day of the month in which
the relevant Interest Payment Date occurs. This Debenture may be presented for
payment of
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<PAGE>
principal and interest at the offices of The Chase Manhattan Bank, as paying
agent for the Company, maintained for that purpose in the Borough of Manhattan,
The City of New York, State of New York; provided, however, that payment of
interest may be made at the option of the Company (i) by check mailed to such
address of the person entitled thereto as the address shall appear on the
Register of the Debentures or (ii) by transfer to an account maintained by the
Person entitled thereto as specified in the Register, provided that proper
transfer instructions have been received by the Record Date. Interest on the
Debenture will be computed on the basis of a 360-day year of twelve 30-day
months. In the event that any date on which interest is payable on the
Debentures is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day which is a Business Day with the same
force and effect as if made on the date such payment was originally payable,
without any interest or other payment with respect to any such delay.
So long as no Event of Default has occurred and is continuing, the Company
shall have the right, at any time during the term of this Debenture to defer
payment of interest on this Debenture, at any time or from time to time, for up
to 20 consecutive quarterly interest payment periods with respect to each
deferral period (each an "Extension Period"), during which Extension Periods the
Company shall have the right to make partial payments of interest on any
Interest Payment Date; provided, however, that no Extension Period shall end on
a date other than an Interest Payment Date or extend beyond December 15, 2028 or
any earlier redemption date. At the end of each Extension Period, the Company
must pay all interest then accrued and unpaid (together with Additional Sums,
Additional Interest and Compounded Interest thereon, if any, to the extent
permitted by applicable law). During any such Extension Period, the Company
shall not, and shall not permit any Subsidiary of the Company to, (i) declare or
pay any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any shares of the Company's capital stock
(which includes common and preferred stock), or (ii) make any payment of
principal of or interest or premium, if any, on or repay, repurchase or redeem
any debt securities of the Company that rank pari passu with or junior in
interest to this Debenture or make any guarantee payments with respect to any
guarantee by the Company of the debt securities of any Subsidiary of the Company
that by its terms ranks pari passu with or junior in interest to this Debenture
(other than (a) dividends or distributions in capital stock of the Company; (b)
any declaration of a dividend in connection with the implementation of a Rights
Plan, or the issuance of capital stock of the Company under any Rights Plan, or
the redemption or repurchase of any rights distributed pursuant to a Rights
Plan; (c) payments under any Bear Stearns Guarantee (as defined in the Indenture
and the Existing Indenture); (d) purchases of common stock related to the
issuance of common stock or rights under any of the Company's benefit plans for
its directors, officers or employees; and (e) payments of interest pursuant to
the EPICS Loan Agreement). Prior to the termination of any such Extension
Period, the Company may further extend the interest payment period, provided
that no Extension Period shall exceed 20 consecutive quarterly periods or extend
beyond December 15, 2028 or any earlier redemption date. At any time following
the termination of any Extension Period and the payment of all accrued and
unpaid interest (including Additional Sums, Additional Interest and Compounded
Interest, if any) then due, the Company may elect to begin a new Extension
Period, subject to the above requirements. No interest shall be due and payable
during an Extension Period, except at the
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<PAGE>
end thereof. The Company shall give the Trustee and the Property Trustee notice
of its election to begin or extend any Extension Period at least five Business
Days prior to the earlier of (i) the next succeeding date on which Distributions
on the Preferred Securities issued by Bear Stearns Capital Trust II would be
payable but for such election to begin or extend a new Extension Period, or (ii)
the date the Property Trustee is required to give notice to any applicable
self-regulatory organization or to holders of such Preferred Securities of the
record date or the date such Distributions are payable, but in any event not
less than five Business Days prior to such record date.
This Debenture is issued pursuant to an Indenture, dated as of December 16,
1998 between the Company, as issuer, and The Chase Manhattan Bank, a banking
corporation duly organized and existing under the laws of the State of New York,
as trustee, as supplemented (as further supplemented or amended from time to
time, the "Indenture"). Reference is made to the Indenture for a description of
the respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the Holders (the word "Holder" or
"Holders" meaning the registered holder or registered holders) of the
Debentures. Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture. By acceptance of this
Debenture, the Holder hereof agrees to be bound by the provisions of the
Indenture.
The Debentures are limited to the aggregate principal amount of Three
Hundred Nine Million Two Hundred Seventy-Eight Thousand Three Hundred
Seventy-Five Dollars ($309,278,375).
The Debentures evidenced by this Certificate may be transferred or
exchanged only in minimum denominations of $25 and integral multiples of $25 in
excess thereof, and any attempted transfer, sale or other disposition of
Debentures in a denomination of less than $25 shall be deemed to be void and of
no legal effect whatsoever.
The indebtedness of the Company evidenced by the Debentures, including the
principal thereof and interest thereon, is, to the extent and in the manner set
forth in the Indenture, subordinate and junior in right of payment to its
obligations to Holders of Senior Indebtedness of the Company and each Holder of
a Debenture, by acceptance thereof, agrees to and shall be bound by such
provisions of the Indenture and all other provisions of the Indenture.
This Debenture shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by or on
behalf of the Trustee under the Indenture.
- ----------
* Insert in Debenture held by Property Trustee only.
** Insert in definitive Debenture only.
*** Insert in global Debenture only.
A-3
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be signed,
manually or in facsimile, by its Chairman of the Board, any Vice Chairman of the
Board, the President, any Vice Chairman, any Executive Vice President, the Chief
Operating Officer or the Chief Financial Officer and by its Treasurer or
Assistant Treasurer, Controller or the Secretary or an Assistant Secretary and a
facsimile of its corporate seal to be affixed hereunto.
THE BEAR STEARNS COMPANIES INC.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
[SEAL]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities, of the series designated therein, referred
to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
------------------------------
Authorized Officer
A-4
<PAGE>
[REVERSE OF DEBENTURE]
As provided in and subject to the provisions of the Indenture, if an Event
of Default with respect to the payment of principal or interest on the
Debentures or with respect to compliance with certain covenants occurs and is
continuing, then in every such case the Trustee or the Holders of not less than
25% in principal amount of the then outstanding Debentures may declare the
principal amount of all the Debentures, together with any accrued interest
(including Additional Sums, Additional Interest and Compounded Interest), to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee, if such notice is given by Holders). If the Debentures have been issued
to a Bear Stearns Trust, upon such an Event of Default, if the Trustee or the
Holders of not less than 25% in principal amount of the outstanding Debentures
fails to declare the principal of all the Debentures to be immediately due and
payable, the holders of at least 25% in aggregate Liquidation Amount of the
corresponding Preferred Securities of such Bear Stearns Trust then outstanding
shall have such right by a notice in writing to the Company and the Trustee, and
upon such declaration the principal amount of and the accrued interest
(including any Additional Sums, Additional Interest and Compounded Interest) on
all the Debentures shall become immediately due and payable, provided that the
payment of principal and interest on such Debentures shall remain subordinated
to the extent provided in the Indenture.
If an Event of Default with respect to certain covenants applicable to all
series of securities issued under the Indenture (collectively, the
"Securities"), or with respect to events of bankruptcy, insolvency or
reorganization of the Company occurs and is continuing, then and in every such
case the Trustee or the Holders of not less than 25% in principal amount of all
Securities outstanding under the Indenture (voting as a single class) may
declare the principal amount of all such Securities to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if such
notice is given by Holders), provided that, in the case of Securities of a
series issued under the Indenture to a Bear Stearns Trust, if upon such an Event
of Default the Trustee and the Holders of not less than 25% in principal amount
of all outstanding Securities of that series fail to declare the principal of
all the Securities of that series to be immediately due and payable, the holders
of at least 25% in aggregate Liquidation Amount of the corresponding Preferred
Securities of such Bear Stearns Trust then outstanding shall have such right by
a notice in writing to the Company and the Trustee; and upon any such
declaration the principal amount of and the accrued interest (including any
Additional Sums, Additional Interest and Compounded Interest) on all the
Securities of that series shall become immediately due and payable, provided
that the payment of principal and interest shall remain subordinated to the
extent provided in the Indenture.
The Indenture provides that in certain events such declaration that
principal and accrued interest are due and payable, and the consequences of such
declaration, may be rescinded and annulled by the holders of a majority in
principal amount of the Securities then outstanding under the Indenture as to
which such an acceleration of the payment of principal has occurred, voting as
one class. In the case of Securities of a series issued under the Indenture to a
Bear Stearns Trust, should the Holders of Securities of that series fail to
rescind and annul such declaration and its consequences, the Holders of a
majority in aggregate
A-5
<PAGE>
Liquidation Amount of the corresponding Preferred Securities of such Bear
Stearns Trust shall have such right. The Indenture also provides that the
Holders of a majority in principal amount of all of the Securities of all series
then outstanding as to which an Event of Default has occurred may, on behalf of
all Holders of such Securities, waive any past default under the Indenture other
than (a) a default in the payment of the principal of or interest on any of the
Securities or (b) a default in respect of a covenant or provision of the
Indenture which under the terms of the Indenture cannot be modified or amended
without the consent of each Holder of Securities so affected. In the case of
Securities of one or more series issued to one or more Bear Stearns Trusts, the
Indenture provides that the Holders of a majority in aggregate Liquidation
Amount of the corresponding Preferred Securities or Preferred Securities issued
by such Bear Stearns Trusts shall also have the right to waive such defaults.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in principal amount
of the outstanding Securities of all affected series (voting as one class), to
modify the Indenture in a manner affecting the rights of the holders of the
Securities of each such series; provided, however, that no such modification
shall (i) change the fixed maturity of any Securities, or reduce the rate or
extend the time of payment of interest thereon or reduce the principal amount
thereof, or change the provisions pursuant to which the rate of interest on the
Securities is determined if such change could reduce the rate of interest
thereon, or reduce the minimum rate of interest thereon, or reduce any amount
payable upon any redemption thereof, or adversely affect any right to convert
the Securities in accordance with the Indenture, or reduce the amount to be paid
at maturity or upon redemption or make the principal thereof or any interest
thereon or on any overdue principal amount payable in any coin or currency other
than that provided in the Securities without the consent of the holder of each
Security so affected, (ii) reduce the aforesaid percentage of Securities, the
holders of which are required to consent to any supplemental indenture, without
the consent of the holders of all Securities then Outstanding, or (iii) modify
any of the provisions of Section 4.07, Section 6.06 or Section 10.02 of the
Indenture, except to increase any such percentage or to provide that certain
other provisions of the Indenture cannot be modified or waived without the
consent of the holder of each Security affected thereby or (iv) modify the
provisions of Article XIV of the Indenture with respect to the subordination of
outstanding Securities of any series in a manner adverse to the holders thereof,
without the consent of the holder of each Security so affected; provided,
further, that, in the case of the Securities of a series issued to a Bear
Stearns Trust, so long as any of the corresponding series of Preferred
Securities issued by such Bear Stearns Trust remains outstanding, (i) no such
amendment shall be made that adversely affects the holders of such Preferred
Securities in any material respect (including any amendment which would result
in a Bear Stearns Trust being classified as other than a grantor trust for
United States federal income tax purposes), and no termination of the Indenture
shall occur, and no waiver of any Event of Default with respect to such series
or compliance with any covenant with respect to such series under the Indenture
shall be effective, without the prior consent of the holders of at least a
majority of the aggregate Liquidation Amount of such Preferred Securities then
outstanding, unless and until the principal (and premium, if any) of the
Securities of such series and all accrued and unpaid interest (including any
Additional Sums, Additional Interest and Compounded Interest) thereon shall have
been paid in full and (ii) no amendment shall be
A-6
<PAGE>
made to Section 6.05 of the Indenture (regarding the right of holders of
Preferred Securities to institute a suit directly against the Company) that
would impair the rights of the holders of Preferred Securities provided therein
without the prior consent of all holders of Preferred Securities then
outstanding, unless and until the principal (and premium, if any) of the
Securities of such series and all accrued and unpaid interest (including any
Additional Sums, Additional Interest and Compounded Interest) thereon have been
paid in full.
The Debenture will be prepayable, in whole or in part, at the option of the
Company at any time on or after December 15, 2003, at a prepayment price (the
"Optional Redemption Price") equal to the outstanding principal amount of the
Debenture plus accrued interest thereon to the date of prepayment.
Upon the occurrence and during the continuation of a Special Event, in
respect of the Trust, the Company may, at its option, at any time within 90 days
of the occurrence of such Special Event redeem this Debenture, in whole but not
in part, at a prepayment price (the "Special Event Prepayment Price") equal to
100% of the principal amount hereof plus accrued and unpaid interest to but
excluding the date of prepayment.
Any consent or waiver by the Holder of this Debenture given as provided in
the Indenture (unless effectively revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders of this
Debenture and of any Debenture issued in exchange, registration of transfer, or
otherwise in lieu hereof irrespective of whether any notation of such consent or
waiver is made upon this Debenture or such other Debentures. No reference herein
to the Indenture and no provision of this Debenture or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and interest on this Debenture, at the
places, at the respective times, at the rate and in the coin or currency herein
prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Debenture may be registered on the Register of the
Debentures upon surrender of this Debenture for registration of transfer at the
offices maintained by the Company or its agent for such purpose, duly endorsed
by the Holder hereof or his attorney duly authorized in writing, or accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Securities Registrar duly executed by the Holder hereof or his attorney duly
authorized in writing, but without payment of any charge other than a sum
sufficient to reimburse the Company for any tax or other governmental charge
incident thereto. Upon any such registration of transfer, a new Debenture or
Debentures of authorized denomination or denominations for the same aggregate
principal amount will be issued to the transferee in exchange herefor.
Prior to due presentment for registration of transfer of this Debenture,
the Company, the Trustee, and any agent of the Company or the Trustee may deem
and treat the person in whose name this Debenture shall be registered upon the
Register of the Debentures of this series as the absolute owner of this
Debenture (whether or not this Debenture shall be overdue and notwithstanding
any notation of ownership or other writing hereon) for the
A-7
<PAGE>
purpose of receiving payment of or on account of the principal hereof and,
subject to the provisions on the face hereof, interest due hereon and for all
other purposes; and neither the Company nor the Trustee nor any such agent shall
be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or interest on
this Debenture, or for any claim based hereon or otherwise in respect hereof, or
based on or in respect of the Indenture or any indenture supplemental thereto,
against any stockholder, officer, director or employee, as such, past, present
or future, of the Company or of any successor corporation, either directly or
through the Company, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as a part of the consideration for
the issue hereof, expressly waived and released.
The Company, and by acceptance of this Debenture, the Holder hereof, and
any Person that acquires a beneficial interest herein, agree that for United
States federal, state and local tax purposes it is intended that this Debenture
constitute indebtedness.
THIS DEBENTURE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE
STATE OF NEW YORK AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF SAID STATE, WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES THEREOF.
A-8
<PAGE>
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers the
within 7 1/2% Junior Subordinated Deferrable Interest Debenture (the
"Debenture") and all rights thereunder, unto
----------------------------------------
Please insert Social Security
or other identifying number of assignee:
------------------------------------------------------------
(Name and Address of Assignee, including Zip Code,
must be printed or typewritten)
and hereby irrevocably constitutes and appoints
- --------------------------------------------------------------------------------
Attorney to transfer said Debenture on the Register of the Debentures, with full
power of substitution in the premises.
Date:
---------------------------------------
Signature(s)
Signature(s) must be guaranteed by a
commercial bank or trust company or a
member firm of a major stock exchange.
NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within 7 1/2% Junior Subordinated
Deferrable Interest Debenture in every particular, without alteration
or enlargement or any change whatever.
A-9
<PAGE>
FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL DEBENTURE
TO REFLECT CHANGES IN PRINCIPAL AMOUNT
The initial principal amount evidenced by this Global Debenture is $________.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
Principal Amount by which this
Global Debenture is to be Reduced Remaining Principal Amount
and Reason for of this Global
Date Reduction Debenture Notation Made by
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<S> <C> <C> <C>
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</TABLE>
A-10
7 1/2% JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE
DUE DECEMBER 15, 2028
$309,278,375 Principal Amount
Registered No. 1
Dated: December 16, 1998 CUSIP 073902 BL 1
Registered Holder: The Chase Manhattan Bank, as Property Trustee of Bear
Stearns Capital Trust II
The Bear Stearns Companies Inc., a corporation duly organized and
existing under the laws of the State of Delaware (herein referred to as the
"Company," which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to the
Registered Holder named above, the principal sum of Three Hundred Nine Million
Two Hundred Seventy-Eight Thousand Three Hundred Seventy-Five Dollars
($309,278,375), on December 15, 2028 in such coin or currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debt. The Company further promises to pay to the registered
holder hereof as hereinafter provided (a) interest on said principal sum
(subject to deferral as set forth herein) at the rate of 7 1/2% per annum (the
"Coupon Rate"), in like coin or currency, quarterly in arrears on the 15th day
of January, April, July and October (each an "Interest Payment Date") commencing
January 15, 1999 from the date next preceding the date hereof to which interest
has been paid or duly provided for (unless (i) no interest has yet been paid or
duly provided for on this debenture (the "Debenture"), in which case from the
date of original issuance, or (ii) the date hereof is before an Interest Payment
Date but after the related Record Date (as defined below), in which case from
such following Interest Payment Date or next succeeding Business Day to which
interest shall have been paid; provided, however, that if the Company shall
default in payment of the interest due on such following Interest Payment Date
or Business Day, then from the next preceding date to which interest has been
paid or duly provided for), until the principal hereof shall become due and
payable, plus (b) interest on overdue principal and, to the extent permitted by
applicable law, on any interest payment that is not made when due at the Coupon
Rate, compounded quarterly. The interest so payable will, subject to certain
exceptions provided in the Indenture hereinafter referred to, be paid to the
person in whose name this Debenture is registered at the close of business on
the Record Date next preceding such Interest Payment Date. The Record Date shall
be the Business Day next preceding the Interest Payment Date, unless this
Certificate is registered to a holder other than the Property Trustee or a
nominee of The Depository Trust Company, in which case the Record Date will be
the 1st day of the month in which the relevant Interest Payment Date occurs.
This Debenture may be presented for payment of principal and interest at the
offices of The Chase Manhattan Bank, as paying agent for the Company, maintained
for that purpose in the Borough of Manhattan, The City of New York, State of New
York; provided, however, that payment of interest may be made at the option of
the Company (i) by check mailed to such
<PAGE>
address of the person entitled thereto as the address shall appear on the
Register of the Debentures or (ii) by transfer to an account maintained by the
Person entitled thereto as specified in the Register, provided that proper
transfer instructions have been received by the Record Date. Interest on the
Debenture will be computed on the basis of a 360-day year of twelve 30-day
months. In the event that any date on which interest is payable on the
Debentures is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day which is a Business Day with the same
force and effect as if made on the date such payment was originally payable,
without any interest or other payment with respect to any such delay.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time during the term of this Debenture to
defer payment of interest on this Debenture, at any time or from time to time,
for up to 20 consecutive quarterly interest payment periods with respect to each
deferral period (each an "Extension Period"), during which Extension Periods the
Company shall have the right to make partial payments of interest on any
Interest Payment Date; provided, however, that no Extension Period shall end on
a date other than an Interest Payment Date or extend beyond December 15, 2028 or
any earlier redemption date. At the end of each Extension Period, the Company
must pay all interest then accrued and unpaid (together with Additional Sums,
Additional Interest and Compounded Interest thereon, if any, to the extent
permitted by applicable law). During any such Extension Period, the Company
shall not, and shall not permit any Subsidiary of the Company to, (i) declare or
pay any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any shares of the Company's capital stock
(which includes common and preferred stock), or (ii) make any payment of
principal of or interest or premium, if any, on or repay, repurchase or redeem
any debt securities of the Company that rank pari passu with or junior in
interest to this Debenture or make any guarantee payments with respect to any
guarantee by the Company of the debt securities of any Subsidiary of the Company
that by its terms ranks pari passu with or junior in interest to this Debenture
(other than (a) dividends or distributions in capital stock of the Company; (b)
any declaration of a dividend in connection with the implementation of a Rights
Plan, or the issuance of capital stock of the Company under any Rights Plan, or
the redemption or repurchase of any rights distributed pursuant to a Rights
Plan; (c) payments under any Bear Stearns Guarantee (as defined in the Indenture
and the Existing Indenture); (d) purchases of common stock related to the
issuance of common stock or rights under any of the Company's benefit plans for
its directors, officers or employees; and (e) payments of interest pursuant to
the EPICS Loan Agreement). Prior to the termination of any such Extension
Period, the Company may further extend the interest payment period, provided
that no Extension Period shall exceed 20 consecutive quarterly periods or extend
beyond December 15, 2028 or any earlier redemption date. At any time following
the termination of any Extension Period and the payment of all accrued and
unpaid interest (including Additional Sums, Additional Interest and Compounded
Interest, if any) then due, the Company may elect to begin a new Extension
Period, subject to the above requirements. No interest shall be due and payable
during an Extension Period, except at the end thereof. The Company shall give
the Trustee and the Property Trustee notice of its election to begin or extend
any Extension Period at least five Business Days prior to the earlier of (i) the
next succeeding date on which Distributions on the Preferred Securities issued
by
-2-
<PAGE>
Bear Stearns Capital Trust II would be payable but for such election to begin or
extend a new Extension Period, or (ii) the date the Property Trustee is required
to give notice to any applicable self-regulatory organization or to holders of
such Preferred Securities of the record date or the date such Distributions are
payable, but in any event not less than five Business Days prior to such record
date.
This Debenture is issued pursuant to an Indenture, dated as of
December 16, 1998 between the Company, as issuer, and The Chase Manhattan Bank,
a banking corporation duly organized and existing under the laws of the State of
New York, as trustee, as supplemented (as further supplemented or amended from
time to time, the "Indenture"). Reference is made to the Indenture for a
description of the respective rights, limitations of rights, obligations, duties
and immunities thereunder of the Trustee, the Company and the Holders (the word
"Holder" or "Holders" meaning the registered holder or registered holders) of
the Debentures. Terms used herein which are defined in the Indenture shall have
the respective meanings assigned thereto in the Indenture. By acceptance of this
Debenture, the Holder hereof agrees to be bound by the provisions of the
Indenture.
The Debentures are limited to the aggregate principal amount of
Three Hundred Nine Million Two Hundred Seventy-Eight Thousand Three Hundred
Seventy-Five Dollars ($309,278,375).
The Debentures evidenced by this Certificate may be transferred or
exchanged only in minimum denominations of $25 and integral multiples of $25 in
excess thereof, and any attempted transfer, sale or other disposition of
Debentures in a denomination of less than $25 shall be deemed to be void and of
no legal effect whatsoever.
The indebtedness of the Company evidenced by the Debentures,
including the principal thereof and interest thereon, is, to the extent and in
the manner set forth in the Indenture, subordinate and junior in right of
payment to its obligations to Holders of Senior Indebtedness of the Company and
each Holder of a Debenture, by acceptance thereof, agrees to and shall be bound
by such provisions of the Indenture and all other provisions of the Indenture.
This Debenture shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been signed by
or on behalf of the Trustee under the Indenture.
-3-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be
signed, manually or in facsimile, by its Chairman of the Board, any Vice
Chairman of the Board, the President, any Vice Chairman, any Executive Vice
President, the Chief Operating Officer or the Chief Financial Officer and by its
Treasurer or Assistant Treasurer, Controller or the Secretary or an Assistant
Secretary and a facsimile of its corporate seal to be affixed hereunto.
THE BEAR STEARNS COMPANIES INC.
By: /s/ William J. Montgoris
-----------------------------------------
Name: William J. Montgoris
Title: Chief Operating Officer
By: /s/ Kenneth L. Edlow
-----------------------------------------
Name: Kenneth L. Edlow
Title: Secretary
[SEAL]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities, of the series designated therein,
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ William G. Keenan
------------------------
Authorized Officer
-4-
<PAGE>
As provided in and subject to the provisions of the Indenture, if an
Event of Default with respect to the payment of principal or interest on the
Debentures or with respect to compliance with certain covenants occurs and is
continuing, then in every such case the Trustee or the Holders of not less than
25% in principal amount of the then outstanding Debentures may declare the
principal amount of all the Debentures, together with any accrued interest
(including Additional Sums, Additional Interest and Compounded Interest), to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee, if such notice is given by Holders). If the Debentures have been issued
to a Bear Stearns Trust, upon such an Event of Default, if the Trustee or the
Holders of not less than 25% in principal amount of the outstanding Debentures
fails to declare the principal of all the Debentures to be immediately due and
payable, the holders of at least 25% in aggregate Liquidation Amount of the
corresponding Preferred Securities of such Bear Stearns Trust then outstanding
shall have such right by a notice in writing to the Company and the Trustee, and
upon such declaration the principal amount of and the accrued interest
(including any Additional Sums, Additional Interest and Compounded Interest) on
all the Debentures shall become immediately due and payable, provided that the
payment of principal and interest on such Debentures shall remain subordinated
to the extent provided in the Indenture.
If an Event of Default with respect to certain covenants applicable
to all series of securities issued under the Indenture (collectively, the
"Securities"), or with respect to events of bankruptcy, insolvency or
reorganization of the Company occurs and is continuing, then and in every such
case the Trustee or the Holders of not less than 25% in principal amount of all
Securities outstanding under the Indenture (voting as a single class) may
declare the principal amount of all such Securities to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if such
notice is given by Holders), provided that, in the case of Securities of a
series issued under the Indenture to a Bear Stearns Trust, if upon such an Event
of Default the Trustee and the Holders of not less than 25% in principal amount
of all outstanding Securities of that series fail to declare the principal of
all the Securities of that series to be immediately due and payable, the holders
of at least 25% in aggregate Liquidation Amount of the corresponding Preferred
Securities of such Bear Stearns Trust then outstanding shall have such right by
a notice in writing to the Company and the Trustee; and upon any such
declaration the principal amount of and the accrued interest (including any
Additional Sums, Additional Interest and Compounded Interest) on all the
Securities of that series shall become immediately due and payable, provided
that the payment of principal and interest shall remain subordinated to the
extent provided in the Indenture.
The Indenture provides that in certain events such declaration that
principal and accrued interest are due and payable, and the consequences of such
declaration, may be rescinded and annulled by the holders of a majority in
principal amount of the Securities then outstanding under the Indenture as to
which such an acceleration of the payment of principal has occurred, voting as
one class. In the case of Securities of a series issued under the Indenture to a
Bear Stearns Trust, should the Holders of Securities of that series fail to
rescind and annul such declaration and its consequences, the Holders of a
majority in aggregate Liquidation Amount of the corresponding Preferred
Securities of such Bear Stearns Trust shall
-5-
<PAGE>
have such right. The Indenture also provides that the Holders of a majority in
principal amount of all of the Securities of all series then outstanding as to
which an Event of Default has occurred may, on behalf of all Holders of such
Securities, waive any past default under the Indenture other than (a) a default
in the payment of the principal of or interest on any of the Securities or (b) a
default in respect of a covenant or provision of the Indenture which under the
terms of the Indenture cannot be modified or amended without the consent of each
Holder of Securities so affected. In the case of Securities of one or more
series issued to one or more Bear Stearns Trusts, the Indenture provides that
the Holders of a majority in aggregate Liquidation Amount of the corresponding
Preferred Securities or Preferred Securities issued by such Bear Stearns Trusts
shall also have the right to waive such defaults.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
principal amount of the outstanding Securities of all affected series (voting as
one class), to modify the Indenture in a manner affecting the rights of the
holders of the Securities of each such series; provided, however, that no such
modification shall (i) change the fixed maturity of any Securities, or reduce
the rate or extend the time of payment of interest thereon or reduce the
principal amount thereof, or change the provisions pursuant to which the rate of
interest on the Securities is determined if such change could reduce the rate of
interest thereon, or reduce the minimum rate of interest thereon, or reduce any
amount payable upon any redemption thereof, or adversely affect any right to
convert the Securities in accordance with the Indenture, or reduce the amount to
be paid at maturity or upon redemption or make the principal thereof or any
interest thereon or on any overdue principal amount payable in any coin or
currency other than that provided in the Securities without the consent of the
holder of each Security so affected, (ii) reduce the aforesaid percentage of
Securities, the holders of which are required to consent to any supplemental
indenture, without the consent of the holders of all Securities then
Outstanding, or (iii) modify any of the provisions of Section 4.07, Section 6.06
or Section 10.02 of the Indenture, except to increase any such percentage or to
provide that certain other provisions of the Indenture cannot be modified or
waived without the consent of the holder of each Security affected thereby or
(iv) modify the provisions of Article XIV of the Indenture with respect to the
subordination of outstanding Securities of any series in a manner adverse to the
holders thereof, without the consent of the holder of each Security so affected;
provided, further, that, in the case of the Securities of a series issued to a
Bear Stearns Trust, so long as any of the corresponding series of Preferred
Securities issued by such Bear Stearns Trust remains outstanding, (i) no such
amendment shall be made that adversely affects the holders of such Preferred
Securities in any material respect (including any amendment which would result
in a Bear Stearns Trust being classified as other than a grantor trust for
United States federal income tax purposes), and no termination of the Indenture
shall occur, and no waiver of any Event of Default with respect to such series
or compliance with any covenant with respect to such series under the Indenture
shall be effective, without the prior consent of the holders of at least a
majority of the aggregate Liquidation Amount of such Preferred Securities then
outstanding, unless and until the principal (and premium, if any) of the
Securities of such series and all accrued and unpaid interest (including any
Additional Sums, Additional Interest and Compounded Interest) thereon shall have
been paid in full and (ii) no amendment shall be made to Section 6.05 of the
Indenture (regarding the right of holders of Preferred Securities to
-6-
<PAGE>
institute a suit directly against the Company) that would impair the rights of
the holders of Preferred Securities provided therein without the prior consent
of all holders of Preferred Securities then outstanding, unless and until the
principal (and premium, if any) of the Securities of such series and all accrued
and unpaid interest (including any Additional Sums, Additional Interest and
Compounded Interest) thereon have been paid in full.
The Debenture will be prepayable, in whole or in part, at the option
of the Company at any time on or after December 15, 2003, at a prepayment price
(the "Optional Redemption Price") equal to the outstanding principal amount of
the Debenture plus accrued interest thereon to the date of prepayment.
Upon the occurrence and during the continuation of a Special Event,
in respect of the Trust, the Company may, at its option, at any time within 90
days of the occurrence of such Special Event redeem this Debenture, in whole but
not in part, at a prepayment price (the "Special Event Prepayment Price") equal
to 100% of the principal amount hereof plus accrued and unpaid interest to but
excluding the date of prepayment.
Any consent or waiver by the Holder of this Debenture given as
provided in the Indenture (unless effectively revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders of this Debenture and of any Debenture issued in exchange, registration
of transfer, or otherwise in lieu hereof irrespective of whether any notation of
such consent or waiver is made upon this Debenture or such other Debentures. No
reference herein to the Indenture and no provision of this Debenture or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and interest on this Debenture, at
the places, at the respective times, at the rate and in the coin or currency
herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Debenture may be registered on the
Register of the Debentures upon surrender of this Debenture for registration of
transfer at the offices maintained by the Company or its agent for such purpose,
duly endorsed by the Holder hereof or his attorney duly authorized in writing,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Securities Registrar duly executed by the Holder hereof or his
attorney duly authorized in writing, but without payment of any charge other
than a sum sufficient to reimburse the Company for any tax or other governmental
charge incident thereto. Upon any such registration of transfer, a new Debenture
or Debentures of authorized denomination or denominations for the same aggregate
principal amount will be issued to the transferee in exchange herefor.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, and any agent of the Company or the Trustee
may deem and treat the person in whose name this Debenture shall be registered
upon the Register of the Debentures of this series as the absolute owner of this
Debenture (whether or not this Debenture shall be overdue and notwithstanding
any notation of ownership or other writing hereon) for the purpose of receiving
payment of or on account of the principal hereof and, subject to the
-7-
<PAGE>
provisions on the face hereof, interest due hereon and for all other purposes;
and neither the Company nor the Trustee nor any such agent shall be affected by
any notice to the contrary.
No recourse shall be had for the payment of the principal of or
interest on this Debenture, or for any claim based hereon or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any stockholder, officer, director or employee, as
such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as a part of
the consideration for the issue hereof, expressly waived and released.
The Company, and by acceptance of this Debenture, the Holder hereof,
and any Person that acquires a beneficial interest herein, agree that for United
States federal, state and local tax purposes it is intended that this Debenture
constitute indebtedness.
THIS DEBENTURE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS
OF THE STATE OF NEW YORK AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF SAID STATE, WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES THEREOF.
-8-
<PAGE>
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers the within 7 1/2% Junior Subordinated Deferrable Interest Debenture
(the "Debenture") and all rights thereunder, unto
----------------------------------------
Please insert Social Security
or other identifying number of assignee:
------------------------------------------------------------
(Name and Address of Assignee, including Zip Code,
must be printed or typewritten)
and hereby irrevocably constitutes and appoints
- --------------------------------------------------------------------------------
Attorney to transfer said Debenture on the Register of the Debentures, with full
power of substitution in the premises.
Date: --------------------------------------------
Signature(s)
Signature(s) must be guaranteed by a
commercial bank or trust company or a
member firm of a major stock exchange.
NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within 7 1/2% Junior Subordinated
Deferrable Interest Debenture in every particular, without
alteration or enlargement or any change whatever.
-9-
================================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
among
THE BEAR STEARNS COMPANIES INC.,
as Depositor,
THE CHASE MANHATTAN BANK,
as Property Trustee,
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee,
THE ADMINISTRATORS NAMED HEREIN
and
THE SEVERAL HOLDERS
Dated as of December 16, 1998
BEAR STEARNS CAPITAL TRUST II
================================================================================
<PAGE>
CROSS-REFERENCE TABLE
Trust Indenture Trust Agreement
Act Section Section
- --------------- ---------------
310 (a)(1)............................................... 8.1
(a)(2)............................................... 8.1
(a)(3)............................................... 8.9
(a)(4)............................................... Not Applicable
(b).................................................. 8.8
311 (a).................................................. 8.13
(b).................................................. 8.13
312 (a).................................................. 5.7
(b).................................................. 5.7
(c).................................................. 5.7
313 (a).................................................. 8.14(a), 8.14(b)
(b).................................................. Not Applicable
(c).................................................. 10.8
(d).................................................. 8.14(c)
314 (a).................................................. 8.15
(b).................................................. Not Applicable
(c)(1)............................................... 8.16
(c)(2)............................................... 8.16
(c)(3)............................................... Not Applicable
(d).................................................. Not Applicable
(e).................................................. 1.1, 8.16
315 (a).................................................. 8.2
(b).................................................. 8.2, 10.8
(c).................................................. 8.2
(d).................................................. 8.2
(e).................................................. Not Applicable
316 (a).................................................. Not Applicable
(a)(1)(A)............................................ Not Applicable
(a)(1)(B)............................................ Not Applicable
(a)(2)............................................... Not Applicable
(b)..................................................
(c).................................................. 6.7
317 (a)(1)............................................... Not Applicable
(a)(2)............................................... Not Applicable
(b).................................................. 5.9
318 (a).................................................. 10.11
__________
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Trust Agreement.
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINED TERMS
SECTION 1.1. Definitions.....................................................1
ARTICLE II
CONTINUATION OF THE TRUST
SECTION 2.1. Name...........................................................10
SECTION 2.2. Office of the Delaware Trustee; Principal Place of
Business..................................................10
SECTION 2.3. Initial Contribution of Trust Property; Organizational
Expenses..................................................10
SECTION 2.4. Issuance of the Preferred Securities...........................11
SECTION 2.5. Issuance of the Common Securities; Subscription and
Purchase of Debentures....................................11
SECTION 2.6. Declaration of Trust; Intention of Parties.....................11
SECTION 2.7. Authorization to Enter into Certain Transactions...............12
SECTION 2.8. Assets of Trust................................................16
SECTION 2.9. Title to Trust Property........................................16
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. Payment Account................................................16
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions..................................................17
SECTION 4.2. Redemption.....................................................18
SECTION 4.3. Subordination of Common Securities.............................20
SECTION 4.4. Payment Procedures.............................................20
SECTION 4.5. Tax Returns and Reports........................................21
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Trust....................21
SECTION 4.7. Reduction for Payments under Indenture or Pursuant to
Direct Actions............................................21
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership..............................................21
SECTION 5.2. The Trust Securities Certificates; Execution and
Delivery Thereof..........................................22
SECTION 5.3. Transfer of Preferred Securities...............................22
-i-
<PAGE>
SECTION 5.4. Registration of Transfer and Exchange of Preferred
Securities Certificates...................................23
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates..............................................23
SECTION 5.6. Persons Deemed Securityholders.................................24
SECTION 5.7. Access to List of Securityholders' Names and Addresses.........24
SECTION 5.8. Maintenance of Office or Agency for Transfers..................25
SECTION 5.9. Appointment of Paying Agent....................................25
SECTION 5.10. Ownership of Common Securities by Depositor....................26
SECTION 5.11. Book-Entry Interests...........................................26
SECTION 5.12. Notices to Clearing Agency.....................................27
SECTION 5.13. Procedures for Issuance of Definitive Preferred
Securities Certificates...................................28
SECTION 5.14. Rights of Securityholders......................................28
SECTION 5.15. CUSIP Numbers..................................................30
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights...................................30
SECTION 6.2. Notice of Meetings.............................................32
SECTION 6.3. Meetings of Preferred Securityholders..........................32
SECTION 6.4. Voting Rights..................................................32
SECTION 6.5. Proxies, Etc...................................................33
SECTION 6.6. Securityholder Action by Written Consent.......................33
SECTION 6.7. Record Date for Voting and Other Purposes......................33
SECTION 6.8. Acts of Securityholders........................................33
SECTION 6.9. Inspection of Records..........................................34
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee
and the Delaware Trustee..................................35
SECTION 7.2. Representations and Warranties of Depositor....................36
ARTICLE VIII
THE TRUSTEES AND ADMINISTRATORS
SECTION 8.1. Corporate Property Trustee Required; Eligibility of
Trustees..................................................36
SECTION 8.2. Certain Duties and Responsibilities............................37
SECTION 8.3. Certain Notices................................................38
SECTION 8.4. Certain Rights of Property Trustee.............................39
SECTION 8.5. Not Responsible for Recitals or Issuance of Securities.........41
SECTION 8.6. May Hold Securities............................................41
SECTION 8.7. Compensation; Indemnity; Fees..................................41
-ii-
<PAGE>
SECTION 8.8. Conflicting Interests..........................................42
SECTION 8.9. Co-Trustees and Separate Trustee...............................43
SECTION 8.10. Resignation and Removal; Appointment of Successor..............44
SECTION 8.11. Acceptance of Appointment by Successor.........................46
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
Business..................................................46
SECTION 8.13. Property Trustee May File Proofs of Claim......................46
SECTION 8.14. Reports by Property Trustee....................................47
SECTION 8.15. Reports to the Property Trustee................................48
SECTION 8.16. Evidence of Compliance with Conditions Precedent...............48
SECTION 8.17. Number of Trustees.............................................48
SECTION 8.18. Delegation of Power............................................48
SECTION 8.19. Delaware Trustee...............................................48
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date...............................49
SECTION 9.2. Early Dissolution.............................................49
SECTION 9.3. Dissolution....................................................50
SECTION 9.4. Liquidation....................................................50
SECTION 9.5. Mergers, Consolidations, Conversions, Amalgamations or
Replacements of the Trust.................................51
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Securityholders to Terminate
Trust....................................................52
SECTION 10.2. Amendment.....................................................53
SECTION 10.3. Separability..................................................54
SECTION 10.4. Governing Law.................................................54
SECTION 10.5. Payments Due on Non-Business Day..............................54
SECTION 10.6. Successors....................................................54
SECTION 10.7. Headings......................................................55
SECTION 10.8. Reports, Notices and Demands..................................55
SECTION 10.9. Agreement Not to Petition.....................................55
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act........56
SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee and
Indenture................................................56
SECTION 10.12. Counterparts..................................................57
-iii-
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of December 16, 1998 among
The Bear Stearns Companies Inc., a Delaware corporation (including any
successors or assigns, the "Depositor"), (ii) The Chase Manhattan Bank, a
banking corporation duly organized and existing under the laws of the State of
New York, as property trustee (in such capacity, the "Property Trustee" and, in
its separate corporate capacity and not in its capacity as Property Trustee, the
"Bank"), (iii) Chase Manhattan Bank Delaware, a Delaware banking corporation
that maintains its principal place of business in Delaware, as Delaware trustee
(the "Delaware Trustee"), (the Property Trustee and the Delaware Trustee
referred to jointly as the "Trustees"), (iv) Kenneth L. Edlow, an individual,
Samuel L. Molinaro Jr., an individual, and William J. Montgoris, an individual,
each of whose address is c/o The Bear Stearns Companies Inc., 245 Park Avenue,
New York, New York 10167 (each, an "Administrator" and all collectively, the
"Administrators") and (v) the several Holders, as hereinafter defined.
W I T N E S S E T H :
WHEREAS, the Depositor, the Property Trustee, the Delaware Trustee and the
Administrators (where applicable) have heretofore duly declared and established
a business trust pursuant to the Delaware Business Trust Act by entering into
that certain Trust Agreement, dated as of November 4, 1998 (the "Original Trust
Agreement"), and by the execution and filing with the Secretary of State of the
State of Delaware of a Certificate of Trust, filed on November 4, 1998, attached
as Exhibit A (the "Certificate of Trust");
WHEREAS, the parties hereto desire to amend and restate the Original Trust
Agreement in its entirety as set forth herein to provide for, among other
things, (i) the issuance of the Common Securities by the Trust to the Depositor,
(ii) the issuance and sale of the Preferred Securities by the Trust pursuant to
the Underwriting Agreement, (iii) the acquisition by the Trust from the
Depositor of all of the right, title and interest in the Debentures, and (iv)
the appointment of the Administrators.
NOW THEREFORE, in consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the sufficiency of which
is hereby acknowledged, each party, for the benefit of the other parties and for
the benefit of the Securityholders, hereby amends and restates the Original
Trust Agreement in its entirety and agrees as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
<PAGE>
(a) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) unless the context otherwise requires, any reference to an "Article" or
a "Section" refers to an Article or a Section, as the case may be, of this Trust
Agreement; and
(d) the words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Trust Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest,
Compounded Interest (each as defined in the Indenture) and Additional Sums paid
by the Depositor on a Like Amount of Debentures for such period.
"Additional Sums" has the meaning specified in Section 4.08 of the
Indenture.
"Administrators" has the meaning specified in the preamble to this
Agreement or any successors appointed in accordance with Section 8.10 solely in
such Person's capacity as Administrator of the Trust heretofore created and
continued hereunder and not in such Person's individual capacity.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Bank" has the meaning specified in the preamble to this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in the
premises judging such Person a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of all or substantially all of its property or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order unstayed and in effect for a period of 90 consecutive
days; or
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(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
such Person or of all or substantially all of its property, or the making by it
of an assignment for the benefit of creditors, or the admission by it in writing
of its inability to pay its debts generally as they become due and its
willingness to be adjudicated a bankrupt, or the taking of corporate action by
such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Book-Entry Preferred Securities Certificates" has the meaning specified in
Section 5.11.
"Business Day" means any day which is not a Saturday or Sunday and which in
The City of New York is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close or a day
on which the corporate trust office of the Property Trustee or the Debenture
Trustee is closed for business.
"Certificate Depository Agreement" means a customary letter of
representations among the Trust, the Property Trustee and DTC, as the initial
Clearing Agency, dated as of the Closing Date, relating to the Trust Securities
Certificates, as the same may be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act. DTC will be the initial Clearing
Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"Closing Date" means December 16, 1998, which is the date of execution and
delivery of this Trust Agreement, or such other date as may be designated the
Closing Date pursuant to the Underwriting Agreement.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this Trust Agreement such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Security" means a common undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $25 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
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<PAGE>
"Common Securities Certificate" means a certificate evidencing ownership of
Common Securities, substantially in the form attached as Exhibit B.
"Corporate Trust Office" means (i) when used with respect to the Property
Trustee, the principal corporate trust office of the Property Trustee and (ii)
when used with respect to the Debenture Trustee, the principal corporate trust
office of the Debenture Trustee.
"Debenture Applicable Rate" means the "Applicable Rate" as defined in the
Indenture.
"Debenture Event of Default" means an "Event of Default" as defined in the
Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption under the Indenture.
"Debenture Trustee" means The Chase Manhattan Bank, and any successor
thereto under the Indenture.
"Debentures" means the aggregate principal amount of the Depositor's 7 1/2%
Junior Subordinated Deferrable Interest Debentures due December 15, 2028 issued
pursuant to the Indenture.
"Definitive Preferred Securities Certificates" means Preferred Securities
Certificates issued in certificated, fully registered form as provided in
Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Section 3801, et seq., as it may be amended from time to time.
"Delaware Trustee" means the corporation identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Trust created and continued hereunder, or its successor
in interest in such capacity, or any successor Delaware trustee appointed as
herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust Securities as
provided in Section 4.1.
"DTC" means The Depository Trust Company.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by
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<PAGE>
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Trust in the payment of any Distribution when it becomes
due and payable, and continuation of such default for a period of 30 days; or
(c) default by the Trust in the payment of any Redemption Price of any
Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of any
covenant or warranty of the Trustees in this Trust Agreement (other than a
covenant or warranty a default in the performance or breach of which is dealt
with in clause (b) or (c) above), and continuation of such default or breach for
a period of 90 days after there has been given, by registered or certified mail,
to the defaulting Trustee or Trustees by the Holders of at least 25% in
aggregate Liquidation Amount of the Outstanding Preferred Securities, a written
notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure by the Depositor to appoint a successor Property Trustee
within 60 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Indenture" means the Indenture, dated as of January 29, 1997,
between the Depositor and The Chase Manhattan Bank, as trustee, as amended or
supplemented from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Guarantee" means the Preferred Securities Guarantee Agreement executed and
delivered by the Depositor and The Chase Manhattan Bank, as trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the Holders of the Preferred Securities as amended from time to
time.
"Holder" means a Person in whose name a Trust Security or Trust Securities
is registered in the Securities Register; any such Person being a beneficial
owner within the meaning of the Delaware Business Trust Act.
"Indenture" means the Indenture, dated as of December 16, 1998, between the
Depositor and the Debenture Trustee, as trustee, as amended or supplemented from
time to time.
"Investment Company Event" means the receipt by the Trust of an Opinion of
Counsel to the effect that, as a result of the occurrence of a change in law or
regulation or a
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<PAGE>
change (including any announced proposed change) in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, there is more than an insubstantial risk that
the Trust is or will be considered an "investment company" that is required to
be registered under the 1940 Act, which change or proposed change becomes
effective or would become effective, as the case may be, on or after the date of
the issuance of the Preferred Securities of the Trust.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to the principal amount of
Debentures to be contemporaneously redeemed in accordance with the Indenture the
proceeds of which will be used to pay the Redemption Price of such Trust
Securities, and (b) with respect to a distribution of Debentures to Holders of
Trust Securities in connection with a dissolution or liquidation of the Trust,
Debentures having a principal amount equal to the Liquidation Amount of the
Trust Securities of the Holder to whom such Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Liquidation Date" means the date on which Debentures are to be distributed
to Holders of Trust Securities in connection with a termination and liquidation
of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"1940 Act" means the Investment Company Act of 1940, as amended.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board or any Vice Chairman of the Board or the President or any Executive Vice
President or Chief Operating Officer or Chief Financial Officer of the Depositor
and by the Treasurer or an Assistant Treasurer or Controller or the Secretary or
an Assistant Secretary of the Depositor and delivered to the appropriate
Trustee. Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
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<PAGE>
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Trust, the Property Trustee or the Depositor (including counsel who is
an employee of the Depositor), who is experienced in matters related to the
substance of the opinion.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding", when used with respect to Trust Securities, means, as of the
date of determination, all Trust Securities theretofore executed and delivered
under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Securities Registrar or
delivered to the Securities Registrar for cancellation;
(b) Trust Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Property Trustee or any Paying
Agent for the Holders of such Trust Securities; provided that, if such Trust
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
(c) Trust Securities which have been paid or in exchange for or in lieu of
which other Trust Securities have been executed and delivered pursuant to
Sections 5.4, 5.5, 5.11 and 5.13; provided, however, that in determining whether
the Holders of the requisite Liquidation Amount of the Outstanding Preferred
Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Preferred Securities owned by the Depositor, any
Trustee or any Affiliate of the Depositor or any Trustee shall be disregarded
and deemed not to be Outstanding, except that (a) in determining whether any
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Preferred Securities
that such Trustee knows to be so owned shall be so disregarded and (b) the
foregoing shall not apply at any time when all of the outstanding Preferred
Securities are owned by the Depositor, one or more of the Trustees and/or any
such Affiliate. Preferred Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Administrators the pledgee's right so to act with respect to
such Preferred Securities and that the pledgee is not the Depositor or any
Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
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<PAGE>
"Paying Agent" means any paying agent or co-paying agent appointed pursuant
to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee with the Bank in its trust department
for the benefit of the Securityholders in which all amounts paid in respect of
the Debentures will be held and from which the Property Trustee, through the
Paying Agent, shall make payments to the Securityholders in accordance with
Sections 4.1 and 4.2.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $25 and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing ownership
of Preferred Securities, substantially in the form attached as Exhibit C.
"Property Trustee" means the commercial bank or trust company identified as
the "Property Trustee" in the preamble to this Trust Agreement solely in its
capacity as Property Trustee of the Trust heretofore created and continued
hereunder, or its successor in interest in such capacity, or any successor
property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be redeemed,
the date fixed for such redemption by or pursuant to this Trust Agreement;
provided that each Debenture Redemption Date and the stated maturity of the
Debentures shall be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Debentures, allocated on a pro rata basis (based on Liquidation Amounts) among
the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
"Securityholder" means a Person in whose name a Trust Security or Trust
Securities is registered in the Securities Register; any such Person shall be a
beneficial owner within the meaning of the Delaware Business Trust Act.
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<PAGE>
"Special Event" means an Investment Company Event or a Tax Event.
"Tax Event" means the receipt by the Trust of an Opinion of Counsel to the
effect that, as a result of any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein, or
as a result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement or decision is announced on or after the date
of issuance of the Preferred Securities under this Trust Agreement, there is
more than an insubstantial risk that (i) the Trust is, or will be within 90 days
after the date of such Opinion of Counsel, subject to United States federal
income tax with respect to income received or accrued on the Debentures, (ii)
interest payable by the Depositor on the Debentures is not, or within 90 days
after the date of such Opinion of Counsel, will not be, deductible by the
Depositor, in whole or in part, for United States federal income tax purposes or
(iii) the Trust is, or will be within 90 days after the date of such Opinion of
Counsel, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
"Trust" means the Delaware business trust created under the Original Trust
Agreement and continued hereby and identified on the cover page to this Trust
Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including for all purposes of this Trust Agreement and any
such modification, amendment or supplement, the provisions of the Trust
Indenture Act that are deemed to be a part of and govern this Trust Agreement
and any such modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) any cash on deposit in, or
owing to, the Payment Account and (c) all proceeds and rights in respect of the
foregoing and any other property and assets for the time being held or deemed to
be held by the Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the Preferred
Securities. The Trust Securities represent undivided beneficial interests in the
Trust Property.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee and the Delaware
Trustee.
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<PAGE>
"Underwriters" means the several underwriters listed on Schedule I of the
Underwriting Agreement.
"Underwriting Agreement" means the Agreement, dated December 9, 1998 among
the Trust, the Depositor and Bear, Stearns & Co. Inc., Lehman Brothers Inc.,
Merrill Lynch, Pierce Fenner & Smith Incorporated, Morgan Stanley & Co.
Incorporated, PaineWebber Incorporated, Prudential Securities Incorporated and
Salomon Smith Barney Inc., as representatives of the underwriters named therein.
ARTICLE II
CONTINUATION OF THE TRUST
SECTION 2.1. Name.
The Trust continued hereby shall be known as "Bear Stearns Capital Trust
II" as such name may be modified from time to time by the Administrators
following written notice to the Securityholders and the Trustees, in which name
the Property Trustee and the Administrators may conduct the business of the
Trust, make and execute contracts and other instruments on behalf of the Trust
and sue and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is Chase
Manhattan Bank Delaware, 1201 Market Street, Wilmington, Delaware 19801,
Attention: Corporate Trustee Administration Department, or such other address in
the State of Delaware as the Delaware Trustee may designate by written notice to
the Securityholders and the Depositor. The principal executive office of the
Trust is c/o The Bear Stearns Companies Inc. 245 Park Avenue, New York, New York
10167.
SECTION 2.3. Initial Contribution of Trust Property; Organizational
Expenses.
The Trust acknowledges receipt in trust from the Depositor in connection
with the Original Trust Agreement of the sum of $10, which constituted the
initial Trust Property. The Depositor shall pay organizational expenses of the
Trust as they arise or shall, upon request of any Trustee, promptly reimburse
such Trustee for any such expenses paid by such Trustee. The Depositor shall
make no claim upon the Trust Property for the payment of such expenses.
SECTION 2.4. Issuance of the Preferred Securities.
The Depositor, on behalf of the Trust and pursuant to the Original Trust
Agreement, executed and delivered the Underwriting Agreement. Contemporaneously
with the execution and delivery of this Trust Agreement, an Administrator, on
behalf of the Trust, shall execute in accordance with Section 5.2 and deliver to
the Underwriters, Preferred Securities
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Certificates, registered in the name of the nominee of the initial Clearing
Agency, in an aggregate amount of 12,000,000 shares of Preferred Securities
having an aggregate Liquidation Amount of $300,000,000 against receipt of an
aggregate purchase price for such Preferred Securities of $300,000,000 ($25 per
Preferred Security).
SECTION 2.5. Issuance of the Common Securities; Subscription and Purchase
of Debentures.
Contemporaneously with the execution and delivery of this Trust Agreement,
an Administrator, on behalf of the Trust, shall execute in accordance with
Section 5.2 and deliver to the Depositor, Common Securities Certificates,
registered in the name of the Depositor, in an aggregate amount of 371,135
shares of Common Securities having an aggregate Liquidation Amount of $9,278,375
against payment by the Depositor of an aggregate purchase price of $9,278,375
($25 per Common Security). Contemporaneously therewith, an Administrator, on
behalf of the Trust, shall subscribe to and purchase from the Depositor
Debentures, registered in the name of the Property Trustee and having an
aggregate principal amount equal to $309,278,375 and, in satisfaction of the
purchase price for such Debentures, the Trust shall deliver to the Depositor the
sum of $309,278,375 such sum being the sum of the amounts delivered to the Trust
pursuant to (i) the second sentence of Section 2.4 and (ii) the first sentence
of this Section 2.5).
SECTION 2.6. Declaration of Trust; Intention of Parties.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Trust Securities, (b) to use the proceeds from such sale to acquire the
Debentures and (c) to engage in those activities necessary, convenient or
incidental thereto. The Depositor hereby appoints the Trustees as trustees of
the Trust and the Administrators, to have all the rights, powers and duties to
the extent set forth herein, and the Trustees and the Administrators hereby
accept such appointment. The Property Trustee hereby declares that it will hold
the Trust Property in trust upon and subject to the conditions set forth herein
for the benefit of the Trust and the Securityholders. The Administrators shall
have only those ministerial duties set forth herein with respect to
accomplishing the purposes of the Trust and, to the fullest extent permitted by
law, shall not be trustees or fiduciaries with respect to the Trust. The
Property Trustee shall have the power (but not the obligation) to perform those
duties assigned to the Administrators. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Property Trustee or the Administrators set
forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for
the sole and limited purpose of fulfilling the requirements of Section 3807 of
the Delaware Business Trust Act. The Trust shall not borrow money, issue debt or
reinvest proceeds derived from investments, pledge any assets, or otherwise
undertake or permit to be undertaken any activity that is reasonably likely to
cause the Trust not to be classified for United States federal income tax
purposes as a grantor trust. It is the intention of the parties hereto that the
Trust be classified as a grantor trust for United States federal income tax
purposes. The provisions of this Agreement shall be interpreted to further this
intention of the parties.
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SECTION 2.7. Authorization to Enter into Certain Transactions.
(a) The Trustees and the Administrators shall conduct the affairs of the
Trust in accordance with the terms of this Trust Agreement. Subject to the
limitations set forth in paragraph (b) of this Section, and in accordance with
the following provisions (i) and (ii) the Trustees and the Administrators shall
have the authority to enter into all transactions and agreements determined by
the Trustees or the Administrators to be appropriate in exercising the
authority, express or implied, otherwise granted to the Trustees or the
Administrators under this Trust Agreement, and to perform all acts in
furtherance thereof, including, without limitation, the following:
(i) Each Administrator shall have the power and authority to act on
behalf of the Trust with respect to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, the Certificate Depository Agreement
and such other agreements as may be necessary or desirable in
connection with the purposes and function of the Trust;
(C) assisting in the registration of the Preferred Securities
under the Securities Act of 1933, as amended, and under state
securities or blue sky laws, and the qualification of this Trust
Agreement as a trust indenture under the Trust Indenture Act, as the
same may be deemed necessary or advisable;
(D) assisting in the listing, if any, of the Preferred Securities
upon such national securities exchange or exchanges or automated
quotation system or systems as shall be determined by the Depositor
and the registration of the Preferred Securities under the Exchange
Act, if required by applicable law, and the execution and filing of
all applications, periodic and other reports and other documents
pursuant to the foregoing, or the seeking of relief from same;
(E) the sending of notices (other than notices of default) and
other information regarding the Trust Securities and the Debentures to
the Securityholders in accordance with this Trust Agreement;
(F) the consent to the appointment of a Paying Agent and
Securities Registrar in accordance with this Trust Agreement which
consent shall not be unreasonably withheld;
(G) execution of the Trust Securities on behalf of the Trust in
accordance with this Trust Agreement;
(H) the taking of any action incidental to the foregoing as the
Trustees may from time to time determine is necessary or advisable to
give effect to the
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terms of this Trust Agreement for the benefit of the Securityholders
(without consideration of the effect of any such action on any
particular Securityholder);
(I) execution and delivery of closing certificates, if any,
pursuant to the Underwriting Agreement and application for a taxpayer
identification number for the Trust;
(J) registering transfer of the Trust Securities in accordance
with this Trust Agreement;
(K) execution and delivery of letters or documents to, or
instruments with DTC relating to the Preferred Securities;
(L) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and the execution
and filing of the certificate of cancellation with the Secretary of
State of the State of Delaware;
(M) unless otherwise required by the Trust Indenture Act, to
execute on behalf of the Trust (either acting alone or together with
any or all of the Administrators) any documents that the
Administrators have the power to execute pursuant to this Trust
Agreement;
(N) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including
and with respect to, for the purposes of Section 316(c) of the Trust
Indenture Act, Distributions, voting rights, redemptions and
exchanges, and to issue relevant notices to the Holders of Trust
Securities as to such actions and applicable record dates; and
(O) to duly prepare and file all applicable tax returns and tax
information reports that are required to be filed with respect to the
Trust on behalf of the Trust.
(ii) As among the Trustees and the Administrators, the Property
Trustee shall have the power, duty and authority to act on behalf of the
Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other payments
made in respect of the Debentures in the Payment Account;
(D) the distribution through the Paying Agent of amounts owed to
the Securityholders in respect of the Trust Securities;
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(E) subject to the provisions hereof, the exercise of all of the
rights, powers and privileges of a holder of the Debentures;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the
terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
(I) after an Event of Default (other than under paragraph (b),
(c), (d) or (e) of the definition of such term if such Event of
Default is by or with respect to the Property Trustee) the taking of
any action incidental to the foregoing as the Property Trustee may
from time to time determine is necessary or advisable to give effect
to the terms of this Trust Agreement and protect and conserve the
Trust Property for the benefit of the Securityholders (without
consideration of the effect of any such action on any particular
Securityholder); and
(J) to take all reasonable action at the direction of the
Depositor that may be necessary or appropriate for the preservation
and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws
of the State of Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of the Holders
of the Preferred Securities or to enable the Trust to effect the
purposes for which the Trust was created;
(iii) The Property Trustee shall have the power and authority to act
on behalf of the Trust with respect to any of the duties, liabilities,
powers or the authority of the Administrators set forth in Section
2.7(a)(i)(G); and in the event of a conflict between the action of the
Administrators and the action of the Property Trustee, the action of the
Property Trustee shall prevail.
(b) So long as this Trust Agreement remains in effect, the Trust (or the
Trustees or the Administrators acting on behalf of the Trust) shall not
undertake any business, activities or transaction except as expressly provided
herein or contemplated hereby. In particular, neither the Trustees nor the
Administrators shall, on behalf of the Trust, (i) acquire any investments or
assets other than the Trust Property or engage in any activities not authorized
by this Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage,
pledge, set-off or otherwise dispose of any of the Trust Property or interests
therein, including to Securityholders, except as expressly provided herein,
(iii) take any action that is reasonably
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likely to cause the Trust to fail or cease to qualify as a "grantor trust" for
United States federal income tax purposes, (iv) incur any indebtedness for
borrowed money or issue any other debt or (v) take or consent to any action that
would result in the placement of a Lien on any of the Trust Property. The
Property Trustee shall defend all claims and demands of all Persons at any time
claiming any Lien on any of the Trust Property adverse to the interest of the
Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issuance and sale of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the Commission and
the execution on behalf of the Trust of a "shelf" registration statement on
the appropriate form, including amendments thereto, to register the
Preferred Securities, the Guarantee and the Debentures;
(ii) the determination of the states in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and the determination of any and all such acts, other than
actions which must be taken by or on behalf of the Trust, and the advice to
the Trustees of actions they must take on behalf of the Trust, and the
preparation for execution and filing of any documents to be executed and
filed by the Trust or on behalf of the Trust, as the Depositor deems
necessary or advisable in order to comply with the applicable laws of any
such states;
(iii) if the Depositor shall desire, the preparation for filing by the
Trust and execution on behalf of the Trust of an application to the New
York Stock Exchange or any other national or international stock exchange
or the Nasdaq National Market or any other automated quotation system for
listing, upon notice of issuance, of any Preferred Securities; and the
preparation for filing by the Trust with the Commission and the execution
on behalf of the Trust of a registration statement on Form 8-A relating to
the registration of the Preferred Securities under Section 12(b) or 12(g)
of the Exchange Act, including any amendments thereto; and filing with such
exchange or self-regulatory organization such notifications and documents
as may be necessary from time to time to maintain such listing;
(iv) the negotiation of the terms of, and the execution and delivery
of, the Underwriting Agreement providing for the sale of the Preferred
Securities; and
(v) the taking of any other actions necessary or desirable to carry
out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators and
the Property Trustee are authorized and directed to conduct the affairs of the
Trust and to operate the Trust so that the Trust will not be deemed to be an
"investment company" required
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to be registered under the 1940 Act or fail to be classified as a grantor trust
for United States federal income tax purposes and so that the Debentures will be
treated as indebtedness of the Depositor for United States federal income tax
purposes. In this regard, the Property Trustee shall be protected if it shall
have conducted the affairs of the Trust and operated the Trust in accordance
with its rights, powers and duties as specifically set forth in this Trust
Agreement. In this connection, the Administrators, the Property Trustee and the
Holder of the Common Securities are authorized to take any action, not
inconsistent with applicable law, the Certificate of Trust or this Trust
Agreement, that any of the Administrators, Property Trustee and the Holder of
the Common Securities determines in its discretion to be necessary or desirable
for such purposes, as long as such action does not materially adversely affect
the interests of the Holders of the Preferred Securities. The Property Trustee
shall not be required to take any action under this clause (d) unless directed
to do so by the Depositor, the Administrators or (subject to the provisions
hereof) by Holders of not less than a majority in Liquidation Amount of the
Trust Securities.
SECTION 2.8. Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
SECTION 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Trust and the Securityholders in
accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and any agent of the Property Trustee
shall have exclusive control and sole right of withdrawal with respect to the
Payment Account for the purpose of making deposits in and withdrawals from the
Payment Account in accordance with this Trust Agreement. All moneys and other
property deposited or held from time to time in the Payment Account shall be
held by the Property Trustee in the Payment Account for the exclusive benefit of
the Securityholders and for distribution as herein provided, including (and
subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
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ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions.
(a) Distributions (including Distributions of Additional Amounts, if
applicable) will be made on the Trust Securities at the rate and on the dates
that payments of interest (including Additional Amounts) are made on the
Debentures. Distributions on the Trust Securities shall be cumulative, and will
accumulate whether or not there are funds of the Trust available for the payment
of Distributions. Distributions shall accumulate from December 16, 1998 and,
except in the event (and to the extent) that the Depositor exercises its right
to defer the payment of interest on the Debentures pursuant to the Indenture,
shall be payable quarterly on January 15, April 15, July 15 and October 15, of
each year, commencing on January 15, 1999. If any date on which a Distribution
is otherwise payable on the Trust Securities is not a Business Day, then the
payment of such Distribution shall be made on the next succeeding day that is a
Business Day, with the same force and effect as if made on such date (each date
on which Distributions are payable in accordance with this Section 4.1(a), a
"Distribution Date"), without any interest or other payment with respect to any
such delay.
(b) Assuming payments of interest on the Debentures are made when due (and
before giving effect to any Additional Amounts, if applicable), Distributions on
the Trust Securities shall be payable at a rate of 7 1/2% per annum of the
Liquidation Amount of the Trust Securities. The amount of Distributions payable
for any full period shall be computed on the basis of a 360-day year of twelve
30-day months. The amount of Distributions payable for any period shall include
the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made by the Property
Trustee from the Payment Account and shall be payable on each Distribution Date
only to the extent that the Trust has funds then on hand and available in the
Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a Distribution
Date shall be payable to the Holders thereof as they appear on the Securities
Register for the Trust Securities on the relevant record date, which shall be
the first day of the month in which the relevant Distribution Date occurs.
SECTION 4.2. Redemption.
(a) On each Debenture Redemption Date and on the stated maturity of the
Debentures, the Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the
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Redemption Date to each Holder of Trust Securities, at such Holder's address
appearing in the Security Register. All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or if the Redemption Price cannot be
calculated prior to the time the notice of redemption is required to be
sent, the manner of calculation thereof;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed; and
(v) that on the Redemption Date, the Redemption Price will become due
and payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accumulate on and after said date.
(c) The Trust Securities redeemed on each Redemption Date shall be redeemed
at the Redemption Price with the proceeds from the contemporaneous redemption of
Debentures. Redemptions of the Trust Securities shall be made and the Redemption
Price shall be payable on each Redemption Date only to the extent that the Trust
has funds then on hand and available in the Payment Account for the payment of
such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of any
Preferred Securities, then, by 10:00 a.m., New York City time, on the Redemption
Date, the Depositor shall deposit sufficient funds with the Property Trustee to
pay the Redemption Price. If such deposit has been made, then, by 12:00 noon,
New York City time, on the Redemption Date, subject to Section 4.2(c), the
Property Trustee will, so long as the Preferred Securities are in
book-entry-only form, irrevocably deposit with the Clearing Agency for the
Preferred Securities funds sufficient to pay the applicable Redemption Price and
will give such Clearing Agency irrevocable instructions and authority to pay the
Redemption Price to the Holders thereof. If Preferred Securities are no longer
in book-entry-only form, the Property Trustee, subject to Section 4.2(c), will
irrevocably deposit with the Paying Agent funds sufficient to pay the applicable
Redemption Price and will give the Paying Agent irrevocable instructions and
authority to pay the Redemption Price with respect to such Preferred Securities
to the Holders thereof upon surrender of their Preferred Securities
Certificates. Notwithstanding the foregoing, Distributions payable on or prior
to the Redemption Date for any Trust Securities called for redemption shall be
payable to the Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates for the related
Distribution. If notice of redemption shall have been given and funds deposited
as required, then upon the date of such deposit, all rights of Securityholders
holding Trust Securities so called for redemption will cease, except the right
of such Securityholders to receive the Redemption Price and any unpaid
Distribution payable on or prior to the Redemption Date, but without interest,
and such Trust Securities will cease to be outstanding. In the event that any
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date on which any Redemption Price is payable is not a Business Day, then
payment of the Redemption Price payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay), except that, if such Business Day falls in the
next calendar year, such payment will be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on such
date. In the event that payment of the Redemption Price in respect of any Trust
Securities called for redemption is improperly withheld or refused and not paid
either by the Trust or by the Depositor pursuant to the Guarantee, Distributions
on such Trust Securities will continue to accumulate, at the then applicable
rate, from the Redemption Date originally established by the Trust for such
Trust Securities to the date such Redemption Price is actually paid, in which
case the actual payment date will be the date fixed for redemption for purposes
of calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities shall be made
to the recordholders thereof as they appear on the Securities Register for the
Trust Securities on a date to be established as the record date for the
distribution by the Administrators, which date shall be not more than 60 days
nor less than 30 days prior to the relevant Redemption Date.
(f) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated on a
pro rata basis (based on Liquidation Amounts) among the Common Securities and
the Preferred Securities. The particular Preferred Securities to be redeemed
shall be selected on a pro rata basis (based upon Liquidation Amounts) not less
than 30 nor more than 60 days prior to the Redemption Date by the Property
Trustee from the Outstanding Preferred Securities not previously called for
redemption, by such method as the Property Trustee shall deem fair and
appropriate. Any such proration may be based on the aggregate Liquidation Amount
of Trust Securities held by each Holder and in making any such proration the
Property Trustee may make such adjustments as may be appropriate in order that
only Trust Securities in Liquidation Amount equal to $25 or integral multiples
of $25 in excess thereof shall be redeemed. The Property Trustee shall promptly
notify the Securities Registrar in writing of the Preferred Securities selected
for redemption and, in the case of any Preferred Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed. For all purposes of
this Trust Agreement, unless the context otherwise requires, all provisions
relating to the redemption of Preferred Securities shall relate, in the case of
any Preferred Securities redeemed or to be redeemed only in part, to the portion
of the Liquidation Amount of Preferred Securities that has been or is to be
redeemed.
(g) In the event that there is any money or other property held by or for
the Trust that is not accounted for hereunder, such property shall be
distributed pro rata among the Holders of Trust Securities on the next
Distribution Date.
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SECTION 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if applicable)
on, and the Redemption Price of, the Trust Securities, as applicable, shall be
made, subject to Section 4.2(f), pro rata among the Common Securities and the
Preferred Securities based on the Liquidation Amount of the Trust Securities;
provided, however, that if on any Distribution Date or Redemption Date any Event
of Default resulting from a Debenture Event of Default shall have occurred and
be continuing, no payment of any Distribution (including Additional Amounts, if
applicable) on, or Redemption Price of, any Common Security, and no other
payment on account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions (including Additional Amounts, if applicable) on all
Outstanding Preferred Securities, for all Distribution periods terminating on or
prior thereto, or in the case of payment of the Redemption Price the full amount
of such Redemption Price on all Outstanding Preferred Securities then called for
redemption, shall have been made or provided for, and all funds immediately
available to the Property Trustee shall first be applied to the payment in full
in cash of all Distributions (including Additional Amounts, if applicable) on,
or the Redemption Price of, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting from
any Debenture Event of Default, the Holder of Common Securities will be deemed
to have waived any right to act with respect to any such Event of Default under
this Trust Agreement until the effect of all such Events of Default with respect
to the Preferred Securities has been cured, waived or otherwise eliminated.
Until any such Event of Default under this Trust Agreement with respect to the
Preferred Securities has been so cured, waived or otherwise eliminated, the
Property Trustee shall act solely on behalf of the Holders of the Preferred
Securities and not the Holder of the Common Securities, and only the Holders of
the Preferred Securities will have the right to direct the Property Trustee to
act on their behalf.
SECTION 4.4. Payment Procedures.
Payments of Distributions (including Additional Amounts, if applicable) in
respect of the Preferred Securities shall be made by check mailed to the address
of the Person entitled thereto as such address shall appear on the Securities
Register or, if the Preferred Securities are held by a Clearing Agency, such
Distributions shall be made to the Clearing Agency in immediately available
funds, which shall credit the relevant Persons' accounts at such Clearing Agency
on the applicable Distribution Dates. Payments in respect of the Common
Securities shall be made in such manner as shall be mutually agreed between the
Property Trustee and the Common Securityholder.
SECTION 4.5. Tax Returns and Reports.
The Administrators shall prepare (or cause to be prepared), at the
Depositor's expense, and file all United States federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrators shall (a) prepare and file (or cause
to be prepared and filed) the appropriate Internal Revenue
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Service form required to be filed in respect of the Trust in each taxable year
of the Trust and (b) prepare and furnish (or cause to be prepared and furnished)
to each Securityholder the appropriate Internal Revenue Service form required to
be so provided and furnished. The Administrators shall provide the Depositor and
the Property Trustee with a copy of all such returns and reports promptly after
such filing or furnishing. The Property Trustee shall comply with United States
federal withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities.
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Trust.
Upon receipt under the Debentures of Additional Sums and the written
direction of any of the Administrators, the Property Trustee shall promptly pay,
solely out of moneys on deposit pursuant to this Trust Agreement, any taxes,
duties or governmental charges of whatsoever nature (other than withholding
taxes) imposed on the Trust by the United States or any other taxing authority.
SECTION 4.7. Reduction for Payments under Indenture or Pursuant to Direct
Actions.
Any amount payable hereunder to any Holder of Preferred Securities shall be
reduced by the amount of any corresponding payment such Holder (or an Owner with
respect to the Holder's Preferred Securities) has directly received pursuant to
the Indenture or Section 5.14 of this Trust Agreement.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.
Upon the creation of the Trust and the contribution by the Depositor
pursuant to Section 2.3 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are outstanding, the Depositor shall
be the sole beneficial owner of the Trust.
SECTION 5.2. The Trust Securities Certificates; Execution and Delivery
Thereof.
(a) The Preferred Securities Certificates shall be issued in minimum
denominations of $25 Liquidation Amount and integral multiples thereof, and the
Common Securities Certificates shall be issued in denominations of $25
Liquidation Amount and integral multiples thereof. The Trust Securities
Certificates shall be executed on behalf of the Trust by manual signature of at
least one Administrator and shall be dated their date of execution. Trust
Securities Certificates bearing the manual signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be validly issued and entitled to the benefits of
this Trust Agreement, notwithstanding that such
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individuals or any of them shall have ceased to be so authorized prior to the
delivery of such Trust Securities Certificates or did not hold such offices at
the date of delivery of such Trust Securities Certificates. A transferee of a
Trust Securities Certificate shall become a Securityholder, and shall be
entitled to the rights and subject to the obligations of a Securityholder
hereunder, upon due registration of such Trust Securities Certificate in such
transferee's name pursuant to Sections 5.4, 5.11 and 5.13.
(b) At the Closing Date, the Administrators, or any of them, shall cause
Trust Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Trust and delivered to or
upon the written order of the Depositor, signed by its Chairman of the Board,
any Vice Chairman of the Board, its President, any Executive Vice President, its
Chief Operating Officer, its Chief Financial Officer, its Treasurer or any
Assistant Treasurer or its Controller, without further corporate action by the
Depositor, in authorized denominations.
SECTION 5.3. Transfer of Preferred Securities.
(a) Preferred Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Trust Agreement and
in the terms of the Preferred Securities. To the fullest extent permitted by
law, any transfer or purported transfer of any Preferred Security not made in
accordance with this Trust Agreement shall be null and void.
(b) Subject to this Section 5.3, Preferred Securities shall be freely
transferable; provided, however, that no transfer shall be effected unless such
transfer (whether by sale or any other disposition) is comprised of a block of
Preferred Securities having an aggregate Liquidation Amount of not less than
$25. Any transfer, sale or other disposition of Preferred Securities in a block
having a Liquidation Amount of less than $25 shall be deemed to be void and of
no legal effect whatsoever. Any such transferee shall be deemed not to be the
Holder of such Preferred Securities for any purpose, including but not limited
to the receipt of Distributions on such Preferred Securities, and such
transferee shall be deemed to have no interest whatsoever in such Preferred
Securities.
SECTION 5.4. Registration of Transfer and Exchange of Preferred
Securities Certificates.
The Depositor shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.8, a register for the purpose of registering
Trust Securities Certificates and transfers and exchanges of Preferred
Securities Certificates (the "Securities Register") in which the registrar
designated by the Depositor (the "Securities Registrar"), subject to such
reasonable regulations as it may prescribe, shall provide for the registration
of Preferred Securities Certificates and Common Securities Certificates (subject
to Section 5.10 in the case of the Common Securities Certificates) and
registration of transfers and exchanges of Preferred Securities Certificates as
herein provided. The Bank shall be the initial Securities Registrar. The
Securities Registrar shall not be required to register the transfer or exchange
of any Preferred Securities (i) during a period beginning at the opening of
business 15 days before the
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day of the mailing of a notice of redemption of Preferred Securities and ending
at the close of business on the day of such mailing or (ii) that have been
selected for redemption in whole or in part, except the unredeemed portion of
any Preferred Security redeemed in part.
Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 5.8, the
Administrators or any one of them shall execute and the Property Trustee shall
deliver, in the name of the designated transferee or transferees, one or more
new Preferred Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount dated the date of execution by such Administrator.
Subject to Section 5.11, at the option of a Holder, Preferred Securities
Certificates may be exchanged for other Preferred Securities Certificates in
authorized denominations of the same class and of a like aggregate Liquidation
Amount upon surrender of the Preferred Securities Certificates to be exchanged
at the office or agency maintained pursuant to Section 5.8.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Securities Registrar duly
executed by the Holder or his attorney duly authorized in writing. Each
Preferred Securities Certificate surrendered for registration of transfer or
exchange shall be canceled and subsequently disposed of by the Property Trustee
or the Securities Registrar in accordance with such Person's customary practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates.
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities Certificate shall be surrendered to
the Securities Registrar, or if the Securities Registrar shall receive evidence
to its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Securities Registrar and the
Administrators such security or indemnity as may be required by them to save
each of them harmless, then in the absence of notice that such Trust Securities
Certificate shall have been acquired by a bona fide purchaser, the
Administrators, or any one of them, on behalf of the Trust shall execute and
make available for delivery, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Trust Securities Certificate, a new Trust Securities
Certificate of like class, tenor and denomination. In connection with the
issuance of any new Trust Securities Certificate under this Section, the
Administrators or the Securities Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Trust Securities Certificate issued pursuant
to this Section shall constitute conclusive evidence of an undivided beneficial
interest in the Trust Property, as if originally issued,
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whether or not the lost, stolen or destroyed Trust Securities Certificate shall
be found at any time.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement of
mutilated, destroyed, lost or stolen Trust Securities.
SECTION 5.6. Persons Deemed Securityholders.
The Trustees, the Administrators or the Securities Registrar shall treat
the Person in whose name any Trust Securities Certificate shall be registered in
the Securities Register as the owner of such Trust Securities Certificate for
the purpose of receiving Distributions and for all other purposes whatsoever
(subject to the record date provisions hereof), and neither the Trustees nor the
Securities Registrar shall be bound by any notice to the contrary.
SECTION 5.7. Access to List of Securityholders' Names and Addresses.
At any time when the Property Trustee is not also acting as the Securities
Registrar, the Depositor shall furnish or cause to be furnished to the Property
Trustee, quarterly not more than five days after January 1, April 1, July 1 and
October 1 of each year beginning with January 1, 1999, and at such other times
as the Property Trustee may request in writing within 30 days after receipt by
the Depositor of any such request, a list, in such form as the Property Trustee
may reasonably require containing all information in the possession or control
of the Depositor, or any Paying Agent or any registrar of the Trust Securities
other than the Property Trustee, as to the names and addresses of the
Securityholders obtained (in the case of each list other than the first list)
since the date as of which the next previous list was furnished. Any such list
may be dated as of a date not more than fifteen days prior to the time such
information is furnished or caused to be furnished, and need not include
information received after such date. The rights of Securityholders to
communicate with other Securityholders with respect to their rights under this
Trust Agreement or under the Trust Securities, and the corresponding obligations
and rights of the Property Trustee, shall be as provided in the Trust Indenture
Act. Each Holder, by receiving and holding a Trust Securities Certificate, and
each Owner shall be deemed to have agreed not to hold the Depositor, the
Property Trustee or the Administrators accountable by reason of the disclosure
of its name and address, regardless of the source from which such information
was derived.
SECTION 5.8. Maintenance of Office or Agency for Transfers.
The Administrators or the Property Trustee shall maintain an office or
offices or agency or agencies where Preferred Securities Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Trust Securities Certificates
may be served. The Administrators initially designate The Chase Manhattan Bank,
450 West 33rd Street, New York, New York 10001, Attention: Corporate Trustee
Administration Department, as the office or agency for such purposes. The
Administrators or the Property Trustee shall give prompt written notice to the
Depositor and to
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the Securityholders of any change in the location of the Securities Register or
any such office or agency.
SECTION 5.9. Appointment of Paying Agent.
The Paying Agent shall make Distributions to Securityholders from the
Payment Account and shall report the amounts of such Distributions to the
Property Trustee and the Administrators. Any Paying Agent shall have the
revocable power to withdraw funds from the Payment Account for the purpose of
making the Distributions referred to above. The Property Trustee may revoke such
power and remove the Paying Agent if such Trustee determines in its sole
discretion that the Paying Agent shall have failed to perform its obligations
under this Trust Agreement in any material respect. The Paying Agent shall
initially be the Bank, and any co-paying agent chosen by the Bank, and
acceptable to the Administrators and the Depositor. Any Person acting as Paying
Agent shall be permitted to resign as Paying Agent upon 30 days' written notice
to the Administrators, the Property Trustee and the Depositor. In the event that
the Bank shall no longer be the Paying Agent or a successor Paying Agent shall
resign or its authority to act be revoked, the Administrators shall appoint a
successor that is acceptable to the Property Trustee and the Depositor to act as
Paying Agent (which shall be a bank or trust company). The Administrators shall
cause such successor Paying Agent or any additional Paying Agent appointed by
the Administrators to execute and deliver to the Trustees an instrument in which
such successor Paying Agent or additional Paying Agent shall agree with the
Trustees that as Paying Agent, such successor Paying Agent or additional Paying
Agent will hold all sums, if any, held by it for payment to the Securityholders
in trust for the benefit of the Securityholders entitled thereto until such sums
shall be paid to such Securityholders. The Paying Agent shall return all
unclaimed funds to the Property Trustee and upon removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the Property
Trustee. The provisions of Sections 8.2, 8.4 and 8.6 herein shall apply to the
Bank also in its role as Paying Agent, for so long as the Bank shall act as
Paying Agent and, to the extent applicable, to any other paying agent appointed
hereunder. Any reference in this Trust Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
SECTION 5.10. Ownership of Common Securities by Depositor.
At the Closing Date, the Depositor shall acquire and retain beneficial and
record ownership of the Common Securities. To the fullest extent permitted by
law, other than transactions permitted by Article XI of the Indenture, any
attempted transfer of the Common Securities shall be void. The Administrators
cause the Common Securities Certificate issued to the Depositor to contain a
legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS DESCRIBED IN THE
TRUST AGREEMENT (AS DEFINED BELOW)."
SECTION 5.11. Book-Entry Interests.
(a) So long as Preferred Securities are eligible for book-entry settlement
with the Clearing Agency or unless otherwise required by law, all Preferred
Securities that are so eligible will be represented by one or more fully
registered Preferred Securities Certificates
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(each a "Book-Entry Preferred Securities Certificate") in global form to be
delivered to the Clearing Agency or its custodian, by, or on behalf of, the
Trust. Such Book-Entry Preferred Securities Certificates shall initially be
registered on the Securities Register in the name of Cede & Co., the nominee of
DTC, and no Owner will receive a Definitive Preferred Securities Certificate
representing such Owner's interests in such Book-Entry Preferred Securities
Certificates, except as provided in Section 5.11(d) below. The transfer and
exchange of beneficial interests in any such Preferred Security in global form
shall be effected through the Clearing Agency in accordance with this Trust
Agreement and the procedures of the Clearing Agency therefor.
(b) Except as provided in subparagraph (d) of this Section 5.11, Owners of
a Preferred Security in global form shall not be entitled to have certificates
registered in their names, will not receive or be entitled to receive physical
delivery of certificates in definitive form and will not be considered Holders
of such Preferred Securities in global form.
(c) Any Book-Entry Preferred Securities Certificate may be endorsed with or
have incorporated in the text thereof such legends or recitals or changes as may
be required by the Clearing Agency or any securities exchange, interdealer
quotation system or self-regulatory organization upon which the Preferred
Securities may be listed or traded or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Preferred Securities are subject.
(d) Notwithstanding any other provisions of this Trust Agreement (other
than the provisions set forth in this Section 5.11(d)), a Preferred Security in
global form may not be exchanged in whole or in part for Preferred Securities
registered, and no transfer of a Preferred Security in global form may be
registered, in the name of any Person other than the Clearing Agency or nominee
thereof unless (i) such Clearing Agency (A) has notified the Property Trustee
and the Depositor that it is unwilling or unable to continue as Clearing Agency
for such global Preferred Security and the Depositor on behalf of the Trust
thereupon fails to appoint a successor Clearing Agency within 90 days after the
receipt of such notice or (B) has ceased to be a clearing agency registered as
such under the Exchange Act, (ii) the Depositor in its sole discretion elects to
cause the issuance of the Preferred Securities in certificated form or (iii)
there shall have occurred and be continuing an Event of Default, or any event
which after notice or lapse of time or both would be an Event of Default under
the Trust Agreement, with respect to such global Preferred Security. Following
exchange of a global Preferred Security, or a portion thereof, for a definitive
Preferred Security, no such definitive Preferred Security, or portion thereof,
shall be included in any Book-Entry Preferred Securities Certificate.
Unless and until Definitive Preferred Securities Certificates have been
issued to Owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(d) shall be in full force and
effect;
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(ii) the Securities Registrar, the Administrators and the Trustees
shall be entitled to deal with the Clearing Agency for all purposes of this
Trust Agreement relating to the Book-Entry Preferred Securities
Certificates (including the payment of the Liquidation Amount of and
Distributions on the Preferred Securities evidenced by Book-Entry Preferred
Securities and the giving of instructions or directions to Owners of
Preferred Securities evidenced by Book-Entry Preferred Securities) as the
sole Holder of Preferred Securities evidenced by Book-Entry Preferred
Securities and shall have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this Section 5.11 conflict
with any other provisions of this Trust Agreement, the provisions of this
Section 5.11 shall control; and
(iv) the rights of the Owners of the Book-Entry Preferred Securities
Certificates shall be exercised only through the Clearing Agency and shall
be limited to those established by law and agreements between such Owners
and the Clearing Agency and/or the Clearing Agency Participants. Pursuant
to the Certificate Depository Agreement, unless and until Definitive
Preferred Securities Certificates are issued pursuant to Section 5.13, the
initial Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit payments on the Preferred
Securities to such Clearing Agency Participants.
(e) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
SECTION 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the Owners is
required under this Trust Agreement, unless and until Definitive Preferred
Securities Certificates shall have been issued to Owners pursuant to Section
5.13, the Trustees shall give all such notices and communications specified
herein to be given to Owners to the Clearing Agency, and shall have no
obligations to the Owners.
SECTION 5.13. Procedures for Issuance of Definitive Preferred Securities
Certificates.
Upon surrender to the Securities Registrar of the typewritten Preferred
Securities Certificate or Certificates representing the Book-Entry Preferred
Securities Certificates by the Clearing Agency upon occurrence of any of the
events described in Section 5.11(d), accompanied by registration instructions,
the Administrators, or any one of them, shall execute and the Securities
Registrar shall register the Definitive Preferred Securities Certificates in
accordance with the instructions of the Clearing Agency. Neither the Securities
Registrar nor the Trustees nor the Administrators shall be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Preferred Securities Certificates, the
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Trustees and the Administrators shall recognize the Holders of the Definitive
Preferred Securities Certificates as Securityholders. The Definitive Preferred
Securities Certificates shall be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the Administrators,
as evidenced by the execution thereof by the Administrators or any one of them.
SECTION 5.14. Rights of Securityholders.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Securityholders shall not have any right or title therein other than the
undivided beneficial ownership interest in the assets of the Trust conferred by
their Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust Securities
shall have no preemptive or similar rights. When issued and delivered to
Securityholders against payment of the purchase price therefor, the Preferred
Securities will be fully paid and nonassessable undivided beneficial interests
in the Trust Property. The Holders of the Preferred Securities, in their
capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
(b) For so long as any Preferred Securities remain Outstanding, if, upon a
Debenture Event of Default, the Debenture Trustee fails or the holders of not
less than 25% in principal amount of the outstanding Debentures fail to declare
the principal of all of the Debentures to be immediately due and payable, the
Holders of at least 25% in Liquidation Amount of the Preferred Securities then
Outstanding shall have such right by a notice in writing to the Depositor and
the Debenture Trustee; and upon any such declaration such principal amount of
and the accrued interest on all of the Debentures shall become immediately due
and payable as set forth in the Indenture, provided that the payment of
principal, premium and interest on such Debentures shall remain subordinated to
the extent provided in the Indenture.
At any time after such a declaration of acceleration with respect to the
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as provided in the
Indenture, the Holders of a majority in Liquidation Amount of the Preferred
Securities, by written notice to the Property Trustee, the Depositor and the
Debenture Trustee, may rescind and annul such declaration and its consequences
if:
(i) the Depositor has paid or deposited with the Debenture Trustee a
sum sufficient to pay:
(A) all overdue installments of interest (including any
Additional Amounts (as defined in the Indenture)), if any, on all of
the Debentures;
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(B) the principal of (and premium, if any, on) any Debentures
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Debentures;
and
(C) all sums paid or advanced by the Debenture Trustee under the
Indenture and the reasonable compensation, expenses, disbursements and
advances of the Debenture Trustee and the Property Trustee, their
agents and counsel and the amounts payable to the Debenture Trustee
under Section 7.06 of the Indenture; and
(ii) all Debenture Events of Default, other than the non-payment of
the principal of the Debentures which has become due solely by such
acceleration, have been cured or waived as provided in Article VI of the
Indenture.
The Holders of a majority in aggregate Liquidation Amount of the Preferred
Securities may, on behalf of the Holders of all the Preferred Securities, waive
any past default under the Indenture, except a default in the payment of
principal or interest (unless such default has been cured and a sum sufficient
to pay all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Debenture Trustee) or a default in
respect of a covenant or provision which under the Indenture cannot be modified
or amended without the consent of the holder of each outstanding Debenture. No
such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of the Preferred
Securities all or part of which is represented by Book-Entry Preferred
Securities Certificates, a record date shall be established for determining
Holders of Outstanding Preferred Securities entitled to join in such notice,
which record date shall be at the close of business on the day the Property
Trustee receives such notice. The Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to join in such
notice, whether or not such Holders remain Holders after such record date;
provided, that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day which is 90
days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice which has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 5.14(b).
(c) For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon a Debenture Event of Default specified in Section
6.01(a) or 6.01(b) of the Indenture,
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any Holder of Preferred Securities shall have the right to institute a
proceeding directly against the Depositor, pursuant to Article VI of the
Indenture, for enforcement of payment to such Holder of the principal amount of
interest on Debentures having a principal amount equal to the Liquidation Amount
of the Preferred Securities of such Holder (a "Direct Action"). Except as set
forth in Section 5.14(b) and this Section 5.14(c), the Holders of Preferred
Securities shall have no right to exercise directly any right or remedy
available to the holders of, or in respect of, the Debentures.
SECTION 5.15. CUSIP Numbers.
The Administrators in issuing the Preferred Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Property Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Preferred Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Preferred Securities, and any
such redemption shall not be affected by any defect in or omission of such
numbers. The Administrators will promptly notify the Property Trustee of any
change in the CUSIP numbers.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights.
(a) Except as provided in this Section, in Sections 5.14, 8.10 and 10.2 and
in the Indenture, and as otherwise required by law, no Holder of Preferred
Securities shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Trust Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee, the
Property Trustee shall not (i) direct the time, method or place of conducting
any proceeding for any remedy available to the Debenture Trustee, or exercising
any trust or power conferred on the Debenture Trustee with respect to such
Debentures, (ii) waive any past default which is waivable under the Indenture,
(iii) exercise any right to rescind or annul a declaration that the principal of
all the Debentures shall be due and payable or (iv) consent to any amendment,
modification or termination of the Indenture or the Debentures, where such
consent shall be required, without, in each case, obtaining the prior approval
of the Holders of at least a majority in Liquidation Amount of all Outstanding
Preferred Securities; provided, however, that where a consent under the
Indenture would require the consent of each holder of Debentures affected
thereby, no such consent shall be given by the Property Trustee without the
prior written consent of each Holder of Preferred Securities. The Property
Trustee shall not revoke any action previously authorized or approved by a vote
of the Holders of Preferred
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Securities, except by a subsequent vote of the Holders of Preferred Securities.
Subject to Section 8.3, the Property Trustee shall notify all Holders of the
Preferred Securities of any notice of default received from the Debenture
Trustee with respect to the Debentures. In addition to obtaining the foregoing
approvals of the Holders of the Preferred Securities, prior to taking any of the
foregoing actions, the Property Trustee shall, at the expense of the Depositor,
obtain an Opinion of Counsel to the effect that such action shall not cause the
Trust to be classified as an association taxable as a corporation or as other
than a grantor trust for United States federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for, or the
Trustees otherwise propose to effect, (i) any action that would adversely affect
in any material respect the powers, preferences or special rights of the
Preferred Securities, whether by way of amendment to the Trust Agreement or
otherwise, or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Trust Agreement, then the Holders of
Outstanding Preferred Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a majority in Liquidation
Amount of the Outstanding Preferred Securities, except as otherwise provided in
Section 10.2(c). Notwithstanding any other provision of this Trust Agreement, no
amendment to this Trust Agreement may be made if, as a result of such amendment,
it would cause the Trust to be classified as an association taxable as a
corporation or as other than a grantor trust for United States federal income
tax purposes.
The Holders of a majority in Liquidation Amount of the Preferred Securities
at the time Outstanding shall have the right to direct the time, method, and
place of conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred on the Property Trustee with
respect to such Preferred Securities; provided, however, that, the Property
Trustee shall have the right to decline to follow any such direction if the
Property Trustee being advised by Opinion of Counsel determines that the action
so directed may not lawfully be taken, or if the Property Trustee in good faith
shall determine that the proceedings so directed would be illegal or involve it
in personal liability or be unduly prejudicial to the rights of Holders of
Preferred Securities not parties to such direction, and provided further that
nothing in the Trust Agreement shall impair the right of the Property Trustee to
take any action deemed proper by the Property Trustee and which is not
inconsistent with such direction by such Securityholders.
SECTION 6.2. Notice of Meetings.
Notice of all meetings of the Preferred Securityholders, stating the time,
place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 10.8 to each Preferred Securityholder of record, at his
registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
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SECTION 6.3. Meetings of Preferred Securityholders.
No annual meeting of Securityholders is required to be held. The Property
Trustee, however, shall call a meeting of Preferred Securityholders to vote on
any matter upon the written request of the Preferred Securityholders of record
of at least 25% of the Preferred Securities (based upon their aggregate
Liquidation Amount) and the Administrators or the Property Trustee may, at any
time in their discretion, call a meeting of Preferred Securityholders to vote on
any matters as to which Preferred Securityholders are entitled to vote.
Preferred Securityholders of record of at least 50% of the Outstanding
Preferred Securities (based upon their Liquidation Amount), present in person or
by proxy, shall constitute a quorum at any meeting of Preferred Securityholders.
If a quorum is present at a meeting, an affirmative vote by the Preferred
Securityholders of record present, in person or by proxy, holding at least a
majority of the Preferred Securities (based upon their Liquidation Amount) held
by the Preferred Securityholders of record present, either in person or by
proxy, at such meeting shall constitute the action of the Preferred
Securityholders, unless this Trust Agreement requires a greater number of
affirmative votes.
SECTION 6.4. Voting Rights.
Securityholders shall be entitled to one vote for each $25 of Liquidation
Amount represented by their Trust Securities in respect of any matter as to
which such Securityholders are entitled to vote.
SECTION 6.5. Proxies, Etc.
At any meeting of Securityholders, any Securityholder entitled to vote
thereat may vote by proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed on file with the Property Trustee, or with such
other officer or agent of the Trust as the Property Trustee may direct, for
verification prior to the time at which such vote shall be taken. Pursuant to a
resolution of the Property Trustee, proxies may be solicited in the name of the
Property Trustee or one or more officers of the Property Trustee. Only
Securityholders of record shall be entitled to vote. When Trust Securities are
held jointly by several Persons, any one of them may vote at any meeting in
person or by proxy in respect of such Trust Securities, but if more than one of
them shall be present at such meeting in person or by proxy, and such joint
owners or their proxies so present disagree as to any vote to be cast, such vote
shall not be received in respect of such Trust Securities. A proxy purporting to
be executed by or on behalf of a Securityholder shall be deemed valid unless
challenged at or prior to its exercise, and the burden of proving invalidity
shall rest on the challenger. No proxy shall be valid more than three years
after its date of execution.
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SECTION 6.6. Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may be taken
without a meeting if Securityholders holding a majority of all Outstanding Trust
Securities (based upon their aggregate Liquidation Amount) entitled to vote in
respect of such action (or such larger proportion thereof as shall be required
by any express provision of this Trust Agreement) shall consent to the action in
writing.
SECTION 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or to vote by written consent, or to
participate in any Distribution on the Trust Securities in respect of which a
record date is not otherwise provided for in this Trust Agreement, or for the
purpose of any other action, the Administrators may from time to time fix a
date, not more than 90 days prior to the date of any meeting of Securityholders
or the payment of a Distribution or other action (including action to be taken
by written consent), as the case may be, as a record date for the determination
of the identity of the Securityholders of record for such purposes.
SECTION 6.8. Acts of Securityholders.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be given, made or
taken by Securityholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Securityholders in
person or by an agent duly appointed in writing; and, except as otherwise
expressly provided herein, such action shall become effective when such
instrument or instruments representing the requisite number of Securityholders
(based upon Liquidation Amounts) are delivered to the Property Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.2) conclusive in favor
of the Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which any Trustee receiving the same deems sufficient.
The ownership of Preferred Securities shall be proved by the Securities
Register.
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Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to take
any action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise among the Securityholders and the Administrators
or among such Securityholders or Trustees with respect to the authenticity,
validity or binding nature of any request, demand, authorization, direction,
consent, waiver or other Act of such Securityholder or Administrators under this
Article VI, then the determination of such matter by the Property Trustee shall
be conclusive with respect to such matter.
SECTION 6.9. Inspection of Records.
Upon reasonable notice to the Administrators and the Property Trustee, the
records of the Trust shall be open to inspection by Securityholders during
normal business hours for any purpose reasonably related to such
Securityholder's interest as a Securityholder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee and
the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on behalf of
and as to itself, hereby represents and warrants for the benefit of the
Depositor and the Securityholders that:
(a) the Property Trustee is a banking corporation duly organized, validly
existing and in good standing under the laws of the State of New York;
(b) the Property Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
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(c) the Delaware Trustee is a Delaware banking corporation duly organized,
validly existing and in good standing with its principal place of business in
the State of Delaware;
(d) the Delaware Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed and delivered
by the Property Trustee and the Delaware Trustee and constitutes the valid and
legally binding agreement of each of the Property Trustee and the Delaware
Trustee enforceable against each of them in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
(f) the execution, delivery and performance of this Trust Agreement have
been duly authorized by all necessary corporate or other action on the part of
the Property Trustee and the Delaware Trustee and do not require any approval of
stockholders of the Property Trustee and the Delaware Trustee and such
execution, delivery and performance will not (i) violate the Charter or By-laws
of the Property Trustee or the Delaware Trustee, or (ii) violate any law,
governmental rule or regulation of the State of New York or the State of
Delaware, as the case may be, governing the banking or trust powers of the
Property Trustee or the Delaware Trustee (as appropriate in context) or any
order, judgment or decree applicable to the Property Trustee or the Delaware
Trustee; and
(g) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the consummation of
any of the transactions by the Property Trustee or the Delaware Trustee (as
appropriate in context) contemplated herein or therein requires the consent or
approval of, the giving of notice to, the registration with or the taking of any
other action with respect to any governmental authority or agency under any
existing State of New York or State of Delaware law governing the banking or
trust powers of the Property Trustee or the Delaware Trustee, as the case may
be.
Any successor Property Trustee and Delaware Trustee shall make similar
representations and warranties as contained in this Section 7.1 for the benefit
of the Depositor and the Securityholders.
SECTION 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued at the Closing Date on behalf
of the Trust have been duly authorized and will have been duly and validly
executed, issued and delivered by the Administrators pursuant to the terms and
provisions of, and in accordance
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with the requirements of, this Trust Agreement and the Securityholders will be,
as of each such date, entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by the
Trust (or the Trustees on behalf of the Trust) under the laws of the State of
Delaware or any political subdivision thereof in connection with the execution,
delivery and performance by the Property Trustee or the Delaware Trustee, as the
case may be, of this Trust Agreement.
ARTICLE VIII
THE TRUSTEES AND ADMINISTRATORS
SECTION 8.1. Corporate Property Trustee Required; Eligibility of
Trustees.
(a) There shall at all times be a Property Trustee hereunder with respect
to the Trust Securities. The Property Trustee shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined capital
and surplus of at least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Property Trustee with respect to the Trust
Securities shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be one or more Administrators hereunder with
respect to the Trust Securities, who shall be appointed by the Holder of Common
Securities. Each Administrator shall be either a natural person who is at least
21 years of age or a legal entity that shall act through one or more persons
authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware or (ii) a
legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity.
SECTION 8.2. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be as provided by
this Trust Agreement and, in the case of the Property Trustee, by the Trust
Indenture Act and no implied covenants or obligations shall be read into this
Trust Agreement against the Property Trustee. Notwithstanding the foregoing, no
provision of this Trust Agreement shall require the Trustees to expend or risk
their own funds or otherwise incur any financial liability in the performance of
any of their duties hereunder, or in the exercise of any of their rights or
powers, if they shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to them. In the
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absence of bad faith on its part, the Property Trustee may conclusively rely, as
to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Property Trustee and
conforming to the requirements of this Trust Agreement. Whether or not therein
expressly so provided, every provision of this Trust Agreement relating to the
conduct or affecting the liability of or affording protection to the Trustees
shall be subject to the provisions of this Section. Nothing in this Trust
Agreement shall be construed to release an Administrator or the Delaware Trustee
from liability for his own gross negligence or willful misconduct. To the extent
that, at law or in equity, an Administrator or the Delaware Trustee has duties
(including fiduciary duties) and liabilities relating thereto to the Trust or to
the Securityholders, such Administrator and the Delaware Trustee shall not be
liable to the Trust or any other Trustee or to any Securityholder for such
Administrator's or the Delaware Trustee's good faith reliance on the provisions
of this Trust Agreement. The provisions of this Trust Agreement, to the extent
that they restrict the duties and liabilities of the Administrators and the
Delaware Trustee otherwise existing at law or in equity, are agreed by the
Depositor, the Trustees and the Securityholders to replace such other duties and
liabilities of the Administrators and the Delaware Trustee.
(b) All payments made by the Property Trustee or a Paying Agent in respect
of the Trust Securities shall be made only from the revenue and proceeds from
the Trust Property and only to the extent that there shall be sufficient revenue
or proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each Securityholder,
by its acceptance of a Trust Security, agrees that it will look solely to the
revenue and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Trustees are not personally
liable to it for any amount distributable in respect of any Trust Security or
for any other liability in respect of any Trust Security. This Section 8.2(b)
does not limit the liability of the Trustees expressly set forth elsewhere in
this Trust Agreement or, in the case of the Property Trustee, in the Trust
Indenture Act.
(c) No provision of this Trust Agreement shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of judgment
made in good faith by an authorized officer of the Property Trustee, unless
it shall be proved that the Property Trustee was negligent in ascertaining
the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a majority in Liquidation
Amount of the Preferred Securities or the Common Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Trust Agreement;
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(iii) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Trust Property shall be to
deal with such property in a similar manner as the Property Trustee deals
with similar property for its own account, subject to the protections and
limitations on liability afforded to the Property Trustee under this Trust
Agreement and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree with the Depositor;
and money held by the Property Trustee need not be segregated from other
funds held by it except in relation to the Payment Account maintained by
the Property Trustee pursuant to Section 3.1 and except to the extent
otherwise required by law; and
(v) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrators or the Depositor with their respective
duties under this Trust Agreement, nor shall the Property Trustee be liable
for the default or misconduct of any Administrator or the Depositor.
SECTION 8.3. Certain Notices.
Within five Business Days after the occurrence of any Event of Default
actually known to an officer of the Property Trustee assigned to its Corporate
Trust Office, the Property Trustee shall transmit, in the manner and to the
extent provided in Section 10.8, notice of such Event of Default to the
Securityholders, the Administrators and the Depositor, unless such Event of
Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the Depositor's
exercise of its right to defer the payment of interest on the Debentures
pursuant to the Indenture, the Property Trustee shall transmit, in the manner
and to the extent provided in Section 10.8, notice of such exercise to the
Securityholders, unless such exercise shall have been revoked.
SECTION 8.4. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.2:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the Property
Trustee is required to decide between alternative courses of action or (ii) in
construing any of the provisions of this Trust Agreement the Property Trustee
finds the same ambiguous or inconsistent with any other provisions contained
herein or (iii) the Property Trustee is unsure of the application of any
provision of this Trust Agreement, then, except as to any matter as to
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which the Preferred Securityholders are entitled to vote under the terms of this
Trust Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken and the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of the Securityholders, in
which event the Property Trustee shall have no liability except for its own bad
faith, negligence or willful misconduct;
(c) any direction or act of the Depositor or the Administrators
contemplated by this Trust Agreement shall be sufficiently evidenced by an
Officers' Certificate or a certificate signed by any Administrator;
(d) whenever in the administration of this Trust Agreement, the Property
Trustee shall deem it desirable that a matter be established before undertaking,
suffering or omitting any action hereunder, the Property Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad faith on
its part, request and rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Depositor or the
Administrators;
(e) the Property Trustee shall have no duty to see to any recording, filing
or registration of any instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any rerecording,
refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel (which counsel may be
counsel to the Depositor or any of its Affiliates, and may include any of its
employees) and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon and in accordance with
such advice; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement from any
court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Securityholders pursuant to this Trust Agreement, unless
such Securityholders shall have offered to the Property Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more
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Securityholders, but the Property Trustee may make such further inquiry or
investigation into such facts or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through its agents or
attorneys, provided that the Property Trustee shall not be responsible for any
misconduct or negligence on the part of, or for the supervision of, any such
agent or attorney appointed with due care by it hereunder;
(j) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder the Property
Trustee (i) may request instructions from the Holders of the Trust Securities
which instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to direct the
Property Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (iii) shall
be protected in acting in accordance with such instructions;
(k) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement; and
(l) the Property Trustee shall not be charged with knowledge of an Event of
Default unless an officer of the Property Trustee assigned to its Corporate
Trust Office obtains actual knowledge of such event or the Property Trustee
receives written notice of such event from the Depositor, any Trustee or
Administrator or Securityholders.
No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
SECTION 8.5. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Trust, and the Trustees do not assume
any responsibility for their correctness. The Trustees shall not be accountable
for the use or application by the Depositor of the proceeds of the Debentures.
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SECTION 8.6. May Hold Securities.
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Section 8.8 and to Section 311 of the Trust Indenture
Act and except as provided in the definition of the term "Outstanding" in
Article I, may otherwise deal with the Trust with the same rights it would have
if it were not a Trustee or such other agent.
SECTION 8.7. Compensation; Indemnity; Fees.
The Depositor, in its capacity as borrower pursuant to the Indenture,
agrees:
(a) to pay to the Trustees from time to time reasonable compensation for
all services rendered by them hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this Trust
Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith;
(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee, (iii) any
officer, director, shareholder, employee, representative or agent of any
Trustee, and (iv) any employee or agent of the Trust or its Affiliates,
(referred to herein as an "Indemnified Person") from and against any loss,
damage, liability, tax, penalty, expense or claim of any kind or nature
whatsoever incurred without gross negligence (or in the case of the Property
Trustee, negligence) or bad faith on its part, arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder; and
(d) to the fullest extent permitted by applicable law, to advance expenses
(including legal fees) incurred by an Indemnified Person in defending any claim,
demand, action, suit or proceeding which shall be advanced, from time to time,
prior to the final disposition of such claim, demand, action, suit or proceeding
upon receipt by the Depositor of (x) a written affirmation by or on behalf of
the Indemnified Person of its or his good faith belief that it or he has met the
standard of conduct set forth in this Section 8.7 and (y) an undertaking by or
on behalf of the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be indemnified as
authorized in the preceding subsection.
The provisions of this Section 8.7 shall survive the termination of this
Trust Agreement and the resignation or removal of any Trustee.
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No Trustee may claim any lien or charge on any Trust Property as a result
of any amount due pursuant to this Section 8.7.
The Depositor, any Administrator and any Trustee (in the case of the
Property Trustee, subject to Section 8.8 hereof) may engage in or possess an
interest in other business ventures of any nature or description, independently
or with others, similar or dissimilar to the business of the Trust, and the
Trust and the Holders of Trust Securities shall have no rights by virtue of this
Trust Agreement in and to such independent ventures or the income or profits
derived therefrom, and the pursuit of any such venture, even if competitive with
the business of the Trust, shall not be deemed wrongful or improper. Neither the
Depositor, any Administrator nor any Trustee, shall be obligated to present any
particular investment or other opportunity to the Trust even if such opportunity
is of a character that, if presented to the Trust, could be taken by the Trust,
and the Depositor, any Administrator or any Trustee shall have the right to take
for its own account (individually or as a partner or fiduciary) or to recommend
to others any such particular investment or other opportunity. Any Trustee may
engage or be interested in any financial or other transaction with the Depositor
or any Affiliate of the Depositor, or may act as depository for, trustee or
agent for, or act on any committee or body of holders of, securities or other
obligations of the Depositor or its Affiliates.
SECTION 8.8. Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement. The Guarantee; the Indenture and the securities issued or to be
thereunder; any Preferred Securities Guarantee Agreement relating to a Bear
Stearns Trust (as defined in the Indenture and the Existing Indenture) between
the Depositor and The Chase Manhattan Bank, as guarantee trustee; any Amended
and Restated Trust Agreement relating to a Bear Stearns Trust among the
Depositor, as depositor, The Chase Manhattan Bank, as property trustee, Chase
Manhattan Bank Delaware, as Delaware trustee, the administrators named therein
and the several holders; and the Existing Indenture and the securities issued or
to be issued thereunder shall be deemed to be sufficiently described in this
Trust Agreement for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
SECTION 8.9. Co-Trustees and Separate Trustee.
Unless a Debenture Event of Default shall have occurred and be continuing,
at any time or times, for the purpose of conforming to the legal requirements of
the Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Depositor and the Administrators,
except in such instance as set forth in the following sentence, by agreed action
of a majority of such Administrators, shall have the power to appoint, and upon
the written request of the Administrators, the Depositor shall for such purpose
join with the Administrators in the execution, delivery, and performance of all
instruments and agreements necessary or proper to appoint one or more Persons
approved by
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the Property Trustee either to act as co-trustee, jointly with the Property
Trustee, of all or any part of such Trust Property, or to the extent required by
law to act as separate trustee of any such property, in either case with such
powers as may be provided in the instrument of appointment, and to vest in such
Person or Persons in the capacity aforesaid, any property, title, right or power
deemed necessary or desirable, subject to the other provisions of this Section.
If the Depositor does not join in such appointment within 15 days after the
receipt by it of a request so to do, or in case a Debenture Event of Default has
occurred and is continuing, the Property Trustee alone shall have power to make
such appointment. Any co-trustee or separate trustee appointed pursuant to this
Section shall either be (i) a natural person who is at least 21 years of age and
a resident of the United States or (ii) a legal entity with its principal place
of business in the United States that shall act through one or more persons
authorized to bind such entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by law,
but to such extent only, be appointed subject to the following terms, namely:
(a) The Trust Securities shall be delivered and all rights, powers, duties,
and obligations hereunder in respect of the custody of securities, cash and
other personal property held by, or required to be deposited or pledged with,
the Trustees specified hereunder, shall be exercised, solely by such Trustees
and not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or imposed
upon the Property Trustee in respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or performed by the Property
Trustee or by the Property Trustee and such co-trustee or separate trustee
jointly, as shall be provided in the instrument appointing such co-trustee or
separate trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall be
incompetent or unqualified to perform such act, in which event such rights,
powers, duties and obligations shall be exercised and performed by such
co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing executed
by it, with the written concurrence of the Depositor, may accept the resignation
of or remove any co-trustee or separate trustee appointed under this Section,
and, in case a Debenture Event of Default has occurred and is continuing, the
Property Trustee shall have power to accept the resignation of, or remove, any
such co-trustee or separate trustee without the concurrence of the Depositor.
Upon the written request of the Property Trustee, the Depositor shall join with
the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee so resigned or
removed may be appointed in the manner provided in this Section.
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(d) No co-trustee or separate trustee hereunder shall be personally liable
by reason of any act or omission of the Property Trustee or any other trustee
hereunder.
(e) The Property Trustee shall not be liable by reason of any act of a
co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be deemed to
have been delivered to each such co-trustee and separate trustee.
SECTION 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee may
resign at any time by giving written notice thereof to the Securityholders. If
the instrument of acceptance by the successor Trustee required by Section 8.11
shall not have been delivered to the Relevant Trustee within 60 days after the
giving of such notice of resignation, the Relevant Trustee may petition, at the
expense of the Trust, any court of competent jurisdiction for the appointment of
a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be continuing
any Trustee may be removed at any time by the Holder of the Common Securities.
If a Debenture Event of Default has occurred and is continuing, the Property
Trustee or the Delaware Trustee, or both of them, may be removed by Act of the
Holders of a majority in Liquidation Amount of the Preferred Securities,
delivered to the Relevant Trustee (in its individual capacity and on behalf of
the Trust). In no event will the Holders of the Preferred Securities have the
right to vote to appoint, remove or replace the Administrators, which voting
rights are vested exclusively in the Depositor, as Holder of the Common
Securities.
If any Trustee shall resign, be removed or become incapable of acting as
Trustee, or if a vacancy shall occur in the office of any Trustee for any cause,
at a time when no Debenture Event of Default shall have occurred and be
continuing, the Holder of the Common Securities, by Act of the Holder of the
Common Securities, delivered to the retiring Trustee, shall promptly appoint a
successor Trustee or Trustees, and the retiring Trustee shall comply with the
applicable requirements of Section 8.11. If any Trustee shall resign, be removed
or become incapable of acting as Trustee, at a time when a Debenture Event of
Default Exists, the Holders of the Preferred Securities, by Act of the Holders
of a majority in Liquidation Amount of the Preferred Securities then Outstanding
delivered to the retiring Relevant Trustee, shall promptly appoint a successor
Relevant Trustee or Trustees, and each successor Trustee shall comply with the
applicable requirements of Section 8.11. If an Administrator shall resign, be
removed or become incapable of acting as Administrator, the Holder of Common
Securities by Act of the Holder of Common Securities delivered to the
Administrator shall promptly appoint a successor Administrator or Administrators
and such
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successor Administrator or Administrators shall comply with the applicable
requirements of Section 8.11. If no successor Relevant Trustee shall have been
so appointed by the Holder of the Common Securities or the Holders of the
Preferred Securities and accepted appointment in the manner required by Section
8.11, any Holder who has been a Holder of Trust Securities for at least six
months may, on behalf of himself and all other similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Relevant
Trustee.
The Property Trustee shall give notice of each resignation and each removal
of a Trustee and each appointment of a successor Trustee to all Securityholders
in the manner provided in Section 10.8 and shall give notice to the Depositor.
Each notice shall include the name of the successor Relevant Trustee and the
address of its Corporate Trust Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrator or a Delaware Trustee who is a natural
person dies or becomes, in the opinion of the Depositor, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by (a) the unanimous act of remaining Administrators if there are at
least two of them prior to such vacancy or (b) otherwise by the Depositor (with
the successor in each case being a Person who satisfies the eligibility
requirement for Administrators or Delaware Trustee, as the case may be, set
forth in Section 8.1).
SECTION 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant Trustee, the
retiring Relevant Trustee and each successor Relevant Trustee shall execute and
deliver an amendment hereto wherein each successor Relevant Trustee shall accept
such appointment and which shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor Relevant
Trustee all the rights, powers, trusts and duties of the retiring Relevant
Trustee with respect to the Trust Securities and the Trust. Upon the execution
and delivery of such amendment the resignation or removal of the retiring
Relevant Trustee shall become effective to the extent provided therein and each
such successor Relevant Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Relevant Trustee; but, on request of the Trust or any successor
Relevant Trustee such retiring Relevant Trustee shall, upon payment of its
charges, duly assign, transfer and deliver to such successor Relevant Trustee
all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the preceding paragraph.
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No successor Relevant Trustee shall accept its appointment unless at the
time of such acceptance such successor Relevant Trustee shall be qualified and
eligible under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware Trustee may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any Person succeeding to all or substantially all
the corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided such Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
SECTION 8.13. Property Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the
Trust Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions or
other amounts due on the Trust Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Property Trustee shall have made any demand on the Trust for the payment of any
past due Distributions or such other amounts) shall be entitled and empowered,
to the fullest extent permitted by law, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of any Distributions and
other amounts owing and unpaid in respect of the Trust Securities and to file
such other papers or documents as may be necessary or advisable in order to have
the claims of the Property Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding; and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Property Trustee and, in the event the Property Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Property Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel, and
any other amounts due the Property Trustee under Section 8.7.
Nothing herein contained shall be deemed to authorize the Property Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement adjustment or composition affecting the Trust
Securities or the rights of any
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Holder thereof or to authorize the Property Trustee to vote in respect of the
claim of any Holder in any such proceeding.
SECTION 8.14. Reports by Property Trustee.
(a) Not later than January 15 of each year commencing with January 15,
2000, the Property Trustee shall transmit to all Securityholders in accordance
with Section 10.8, and to the Depositor, a brief report dated as of the
immediately preceding November 15 concerning the Property Trustee and its
actions under this Trust Agreement if and as may be required pursuant to Section
313(a) of the Trust Indenture Act.
(b) In addition, the Property Trustee shall transmit to Securityholders
such other reports concerning the Property Trustee and its actions under this
Trust Agreement as would be required pursuant to the Trust Indenture Act were
this Trust Agreement to be qualified under the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Property Trustee with any exchange, interdealer
quotation system or self-regulatory organization upon which the Trust Securities
are designated for trading, and with the Depositor. The Depositor will notify
the Property Trustee when and as the Preferred Securities become so designated
for trading.
SECTION 8.15. Reports to the Property Trustee.
The Depositor and the Administrator on behalf of the Trust shall provide to
the Property Trustee such documents, reports and information as required by
Section 314 of the Trust Indenture Act (if any) and the compliance certificate
required by Section 314(a)(4) of the Trust Indenture Act in the form, in the
manner and at the times required by Section 314 of the Trust Indenture Act, such
compliance certificate to be delivered annually on or before September 15 of
each year beginning in 1999.
SECTION 8.16. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrator on behalf of the Trust shall
provide to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Trust Agreement that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act shall be given in the form of an Officers'
Certificate.
SECTION 8.17. Number of Trustees.
(a) The number of Trustees shall be two. The Property Trustee and the
Delaware Trustee may be the same Person.
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(b) If a Trustee ceases to hold office for any reason the vacancy shall be
filled with a Trustee appointed in accordance with the provisions of Section
8.10.
(c) The death, resignation, retirement, removal, bankruptcy, incompetence
or incapacity to perform the duties of a Trustee shall not operate to dissolve,
terminate or annul the Trust.
SECTION 8.18. Delegation of Power.
(a) Any Administrator may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purpose of executing any documents contemplated in Section 2.7(a) or
mailing any other governmental filing; and
(b) The Administrator shall have power to delegate from time to time to
such of their number or to the Depositor the doing of such things and the
execution of such instruments either in the name of the Trust or the names of
the Administrator or otherwise as the Administrator may deem expedient, to the
extent such delegation is not prohibited by applicable law or contrary to the
provisions of this Trust Agreement, as set forth herein.
SECTION 8.19. Delaware Trustee.
(a) Notwithstanding any other provision of this Trust Agreement, the
Delaware Trustee shall not be entitled to exercise any powers, nor shall the
Delaware Trustee have any of the duties and responsibilities of the
Administrators or the Property Trustee described in this Trust Agreement. The
Delaware Trustee shall be a trustee for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Delaware Business Trust Act.
(b) It is expressly understood and agreed by the parties hereto that in
fulfilling its obligations as Delaware Trustee hereunder on behalf of the Trust
(i) any agreements or instruments executed and delivered by Chase Manhattan Bank
Delaware are executed and delivered not in its individual capacity but solely as
Delaware Trustee under this Trust Agreement in the exercise of the powers and
authority conferred and vested in it, (ii) each of the representations,
undertakings and agreements herein made on the part of the Trust is made and
intended not as representations, warranties, covenants, undertakings and
agreements by Chase Manhattan Bank Delaware in its individual capacity but is
made and intended for the purpose of binding only the Trust, and (iii) under no
circumstances shall Chase Manhattan Bank Delaware in its individual capacity be
personally liable for the payment of any indebtedness or expenses of the Trust
or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under this Trust Agreement,
except if such breach or failure is due to any gross negligence or willful
misconduct of the Delaware Trustee.
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ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Trust shall automatically dissolve on
December 15, 2053 (the "Expiration Date"). Thereafter, the Trust Property shall
be distributed in accordance with Section 9.4.
SECTION 9.2. Early Dissolution.
The first to occur of any of the following events is an "Early Termination
Event," the occurrence of which shall cause a dissolution of the Trust:
(a) the occurrence of a Bankruptcy Event in respect of, or the dissolution
or liquidation of, the Holder of the Common Securities;
(b) the written direction to the Property Trustee from the Depositor at any
time to dissolve the Trust and, after satisfaction of liabilities to creditors
of the Trust as provided by applicable law, distribute Debentures to
Securityholders in exchange for the Preferred Securities;
(c) the redemption of all of the Preferred Securities in connection with
the redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.
SECTION 9.3. Dissolution.
The respective obligations and responsibilities of the Trustees and the
Trust created and continued hereby shall terminate upon the latest to occur of
the following: (a) the distribution by the Property Trustee to Securityholders
upon the liquidation of the Trust pursuant to Section 9.4, or upon the
redemption of all of the Trust Securities pursuant to Section 4.2, of all
amounts required to be distributed hereunder upon the final payment of the Trust
Securities; (b) the payment of any expenses owed by the Trust; and (c) the
discharge of all administrative duties of the Administrators, including the
performance of any tax reporting obligations with respect to the Trust or the
Securityholders.
SECTION 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b) or (d) of
Section 9.2 occurs or upon the Expiration Date, the Trust shall be liquidated by
the Trustees as expeditiously as the Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to each Securityholder a Like Amount of Debentures,
subject to Section 9.4(d). Notice of liquidation shall be given by the
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Property Trustee by first-class mail, postage prepaid mailed not later than 15
nor more than 60 days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder's address appearing in the Securities Register. All
notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics by which
Holders may exchange Trust Securities Certificates for Debentures, or if
Section 9.4(d) applies receive a Liquidation Distribution, as the
Administrators or the Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the
liquidation of the Trust and distribution of the Debentures to Securityholders,
the Property Trustee shall establish a record date for such distribution (which
shall be not more than 45 days nor less than 15 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange for the
Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the Liquidation
Date, (i) the Trust Securities will no longer be deemed to be Outstanding, (ii)
certificates representing a Like Amount of Debentures will be issued to Holders
of Trust Securities Certificates, upon surrender of such certificates to the
exchange agent for exchange, (iii) the Depositor shall use its reasonable
efforts to have the Debentures designated on or with any exchange, interdealer
quotation system or self-regulatory organization as the Preferred Securities are
then listed, (iv) any Trust Securities Certificates not so surrendered for
exchange will be deemed to represent a Like Amount of Debentures, accruing
interest at the rate provided for in the Debentures from the last Distribution
Date on which a Distribution was made on such Trust Securities Certificates
until such certificates are so surrendered (and until such certificates are so
surrendered, no payments of interest or principal will be made to Holders of
Trust Securities Certificates with respect to such Debentures) and (v) all
rights of Securityholders holding Trust Securities will cease, except the right
of such Securityholders to receive Debentures upon surrender of Trust Securities
Certificates.
(d) In the event that, notwithstanding the other provisions of this Section
9.4, whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the Debentures in the manner provided
herein is determined by the Property Trustee not to be practical, the Trust
Property shall be liquidated, and the Trust shall be wound-up, by the Property
Trustee in such manner as the Property Trustee determines. In such event,
Securityholders will be entitled to receive out of the assets of the Trust
available for distribution to Securityholders, after satisfaction of liabilities
to
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creditors of the Trust as provided by applicable law, an amount equal to the
Liquidation Amount per Trust Security plus accumulated and unpaid Distributions
thereon to the date of payment (such amount being the "Liquidation
Distribution"). If, upon any such winding-up the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Trust on the Trust Securities
shall be paid on a pro rata basis (based upon Liquidation Amounts). The Holder
of the Common Securities will be entitled to receive Liquidation Distributions
upon any such winding-up pro rata (determined as aforesaid) with Holders of
Preferred Securities, except that, if a Debenture Event of Default has occurred
and is continuing, the Preferred Securities shall have a priority over the
Common Securities.
SECTION 9.5. Mergers, Consolidations, Conversions, Amalgamations or
Replacements of the Trust.
The Trust may not merge with or into, consolidate, convert into,
amalgamate, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, except pursuant to this
Article IX. At the request of the Holder of a majority of the Common Securities,
without the consent of the Holders of the Preferred Securities, the Property
Trustee or the Delaware Trustee, the Trust may merge with or into, consolidate,
convert into, amalgamate, or be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to a trust organized as such
under the laws of any state; provided, that (i) such successor entity either (a)
expressly assumes all of the obligations of the Trust with respect to the
Preferred Securities or (b) substitutes for the Preferred Securities other
securities having substantially the same terms as the Preferred Securities (the
"Successor Securities") so long as the Successor Securities rank the same as the
Preferred Securities rank in priority with respect to distributions and payments
upon liquidation, redemption and otherwise, (ii) the Depositor expressly
appoints a trustee of such successor entity possessing the same powers and
duties as the Property Trustee as the holder of the Debentures, (iii) such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not cause the Preferred Securities (including any Successor Securities) to
be downgraded by any nationally recognized statistical rating organization, (iv)
such merger, consolidation, conversion, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the Holders of the Preferred Securities (including any Successor
Securities) in any material respect, (v) such successor entity has a purpose
substantially identical to that of the Trust, (vi) prior to such merger,
consolidation, conversion, amalgamation, replacement, conveyance, transfer or
lease, the Depositor has received an Opinion of Counsel from independent counsel
to the Trust experienced in such matters to the effect that (a) such merger,
consolidation, conversion, amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
Holders of the Preferred Securities (including any Successor Securities) in any
material respect, and (b) following such merger, consolidation, conversion,
amalgamation, replacement, conveyance, transfer or lease, neither the Trust nor
such successor entity will be required to register as an investment company
under the 1940 Act and (vii) the Depositor owns all of the common securities of
such successor entity and guarantees the obligations of such
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successor entity under the Successor Securities at least to the extent provided
by the Guarantee. Notwithstanding the foregoing, the Trust shall not, except
with the consent of Holders of 100% in Liquidation Amount of the Preferred
Securities, consolidate, convert into, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to any other Person or permit any other Person to consolidate,
amalgamate, merge with or into, or replace it if such consolidation, conversion,
amalgamation, merger, replacement, conveyance, transfer or lease would (i) cause
the Trust or the successor entity to be classified as other than a grantor trust
or (ii) result in the recognition of taxable gain or loss by such holder, for
United States federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Securityholders to Terminate Trust.
Except to the extent set forth in Section 9.2, the death, incapacity,
dissolution, liquidation, termination or bankruptcy of any Person having an
interest, beneficial or otherwise, in Trust Securities shall not operate to
terminate this Trust Agreement, nor dissolve, terminate or annul the Trust, nor
entitle the legal representatives, successors or heirs of such Person or any
Securityholder for such Person, to claim an accounting, take any action or bring
any proceeding in any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
SECTION 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by the Trustees,
and the Holders of a majority of the Common Securities, without the consent of
any Holders of the Preferred Securities, (i) to cure any ambiguity, correct or
supplement any provision herein which may be inconsistent with any other
provision herein, or to make any other provisions with respect to matters or
questions arising under this Trust Agreement, which shall not be inconsistent
with the other provisions of this Trust Agreement, or (ii) to modify, eliminate
or add to any provisions of this Trust Agreement to such extent as shall be
reasonably necessary to ensure that the Trust will be classified for United
States federal income tax purposes as a grantor trust at all times that any
Trust Securities are outstanding or to ensure that the Trust will not be
required to register as an investment company under the 1940 Act; provided,
however, that in the case of clause (i), such action shall not adversely affect
in any material respect the interests of any Securityholder, and any such
amendments of this Trust Agreement shall become effective when notice thereof is
given to the Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Trust Agreement may be amended by the Trustees and the Holders of a majority of
the Common Securities with (i) the consent of Securityholders representing not
less than a majority (based upon Liquidation Amounts) of the Trust Securities
then Outstanding and (ii) receipt by the Trustees of an Opinion of Counsel to
the effect that such amendment or the exercise of any
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power granted to the Trustees in accordance with such amendment will not affect
the Trust's status as a grantor trust for United States federal income tax
purposes or the Trust's exemption from status of an investment company under the
1940 Act.
(c) In addition to and notwithstanding any other provision in this Trust
Agreement, without the consent of each affected Securityholder (such consent
being obtained in accordance with Section 6.3 or 6.6 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date; notwithstanding
any other provision herein, without the unanimous consent of the Securityholders
(such consent being obtained in accordance with Section 6.3 or 6.6 hereof), this
paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to fail or cease to qualify for the exemption from
status of an investment company under the 1940 Act or fail or cease to be
classified as a grantor trust for United States federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor, this Trust Agreement may not be amended in
a manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Trust Agreement is made, the
Property Trustees or the Administrators shall promptly provide to the Depositor
a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be required
to enter into any amendment to this Trust Agreement which affects its own
rights, duties or immunities under this Trust Agreement. The Property Trustee
shall be entitled to receive an Opinion of Counsel and an Officers' Certificate
stating that any amendment to this Trust Agreement is in compliance with this
Trust Agreement.
SECTION 10.3. Separability.
In case any provision in this Trust Agreement or in the Trust Securities
Certificates shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 10.4. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND THE TRUST SECURITIES SHALL BE
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CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE
(WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES), PROVIDED THAT THE IMMUNITIES
AND STANDARD OF CARE OF THE PROPERTY TRUSTEE IN CONNECTION WITH THE
ADMINISTRATION OF ITS TRUSTS AND DUTIES HEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day that
is not a Business Day, then such payment need not be made on such date but may
be made on the next succeeding day that is a Business Day (except as otherwise
provided in Sections 4.1(a) and 4.2(d)), with the same force and effect as
though made on the date fixed for such payment, and no interest shall accrue
thereon for the period after such date.
SECTION 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the benefit
of any successor to the Depositor, the Trust or the Relevant Trustee, including
any successor by operation of law. Except in connection with transactions
permitted under Article XI of the Indenture and pursuant to which the assignee
agrees in writing to perform the Depositor's obligations hereunder, the
Depositor shall not assign its obligations hereunder.
SECTION 10.7. Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
SECTION 10.8. Reports, Notices and Demands.
Any report, notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
any Securityholder or the Depositor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a
Preferred Securityholder, to such Preferred Securityholder as such
Securityholder's name and address may appear on the Securities Register; and (b)
in the case of the Common Securityholder or the Depositor, to The Bear Stearns
Companies Inc., 245 Park Avenue, New York, New York 10167, Attention: Corporate
Secretary, Facsimile No.: (212) 272-8904 (until another address is designated by
notice to the Trustees). Such notice, demand or other communication to or upon a
Securityholder shall be deemed to have been sufficiently given or made, for all
purposes, upon hand delivery, mailing or transmission. Any notice, demand or
other communication which by any provision of this Trust Agreement is required
or permitted to be given or served to or upon the Trust, the Property Trustee,
the Delaware Trustee or the Administrators shall be given in writing addressed
(until another address is designated by notice to the other parties hereto) as
follows: (a) with respect to the Property Trustee to The Chase Manhattan Bank,
450 West 33rd Street,
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New York, New York 10001, Attention: Corporate Trustee Administration
Department; (b) with respect to the Delaware Trustee, to Chase Manhattan Bank
Delaware, 1201 Market Street, Wilmington, Delaware 19801, Attention: Corporate
Trustee Administration Department; (c) with respect to the Administrators, to
them at the address above for notices to the Depositor, marked "Attention:
Administrators of Bear Stearns Capital Trust __" and (d) with respect to the
Trust, c/o The Bear Stearns Companies Inc., 245 Park Avenue, New York, New York,
10167, Attention: Corporate Secretary. Such notice, demand or other
communication to or upon the Trust, the Administrators, the Property Trustee or
the Delaware Trustee shall be deemed to have been sufficiently given or made
only upon actual receipt of the writing by the Trust, the Administrators, the
Property Trustee or the Delaware Trustee, as the case may be.
SECTION 10.9. Agreement Not to Petition.
Each of the Trustees and the Depositor agree for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Depositor takes action in violation of this Section 10.9, the
Property Trustee agrees, for the benefit of Securityholders, that at the expense
of the Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Property Trustee
or the Trust may assert. The provisions of this Section 10.9 shall survive the
termination of this Trust Agreement.
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act and shall, to the extent applicable, be governed by such
provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee for
the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with the duties
imposed under Section 310 through 317 of the Trust Indenture Act, such duties
shall control. If any provision of this Trust Agreement modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Trust Agreement as so modified
or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
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SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee and
Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE
OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND
THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST THE TRUSTEES, THE
ADMINISTRATORS, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND
PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS
BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
SECTION 10.12. Counterparts.
This Trust Agreement may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original; but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Trust Agreement of Bear Stearns Capital Trust II as of the date first above
written.
THE BEAR STEARNS COMPANIES INC.,
as Depositor
By: /s/ William J. Montgoris
-------------------------------
Name: William J. Montgoris
Title: Chief Operating Officer
THE CHASE MANHATTAN BANK,
as Property Trustee
By: /s/ William G. Keenan
-------------------------------
Name: William G. Keenan
Title: Trust Officer
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By: /s/ Denis Kelly
-------------------------------
Name: Denis Kelly
Title: Trust Officer
/s/ Kenneth L. Edlow,
-------------------------------
Kenneth L. Edlow
as Administrator
/s/ Samuel L. Molinaro Jr.
-------------------------------
Samuel L. Molinaro Jr.,
as Administrator
/s/ William J. Montgoris
-------------------------------
William J. Montgoris,
as Administrator
<PAGE>
EXHIBIT A
FORM OF CERTIFICATE OF TRUST
CERTIFICATE OF TRUST
OF
BEAR STEARNS CAPITAL TRUST II
THIS Certificate of Trust of Bear Stearns Capital Trust II (the "Trust"),
dated as of November 4, 1998 is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del.C. Section 3801, et seq.).
1. Name. The name of the business trust formed hereby is Bear Stearns
Capital Trust II.
2. Delaware Trustee. The name and business address of the trustee of the
Trust with a principal place of business in the State of Delaware are Chase
Manhattan Bank Delaware, 1201 Market Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust, have
executed this Certificate of Trust as of the date first-above written.
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By:
-------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Property Trustee
By:
-------------------------------
Name:
Title:
A-1
<PAGE>
EXHIBIT B
FORM OF COMMON SECURITIES CERTIFICATE
Certificate No. __________ No. of Common Securities __________
CERTIFICATE EVIDENCING
7 1/2% TRUST ISSUED COMMON SECURITIES
OF
BEAR STEARNS CAPITAL TRUST II
(LIQUIDATION AMOUNT $25 PER COMMON SECURITY)
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS DESCRIBED IN THE TRUST AGREEMENT
(AS DEFINED BELOW).
Bear Stearns Capital Trust II, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that
_________________________________________________________________ (the "Holder")
is the registered owner of
_________________________________________________ (__________) Common Securities
of the Trust representing undivided beneficial interests in the assets of the
Trust and designated the 7 1/2% Trust Issued Common Securities (liquidation
amount $25 per Common Security) (the "Common Securities"). To the extent set
forth in Section 5.10 of the Trust Agreement, the Common Securities are not
transferable and any attempted transfer hereof shall be void. The designations,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of December 16, 1998, as the same may be amended from time to
time (the "Trust Agreement"), including the designation of the terms of the
Common Securities as set forth therein. The Trust will furnish a copy of the
Trust Agreement to the Holder without charge upon written request to the Trust
at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrators of the Trust has executed
this certificate this ____ day of ____________.
By:
-------------------------------
Name:
Title: Administrator
B-1
<PAGE>
EXHIBIT C
FORM OF PREFERRED SECURITIES CERTIFICATE
Certificate No. __________ No. of Preferred Securities __________
CUSIP NO. __________
CERTIFICATE EVIDENCING
7 1/2% TRUST ISSUED PREFERRED SECURITIES
OF
BEAR STEARNS CAPITAL TRUST II
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO BEAR STEARNS
CAPITAL TRUST II OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO A PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]*
[THE PREFERRED SECURITIES WILL BE ISSUED, AND MAY BE TRANSFERRED, ONLY IN BLOCKS
HAVING A LIQUIDATION AMOUNT OF $25 OR MORE (AT LEAST 100 PREFERRED SECURITIES).
ANY ATTEMPTED TRANSFER, SALE OR OTHER DISPOSITION OF PREFERRED SECURITIES IN A
BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $25 SHALL BE DEEMED TO BE VOID
AND OF NO LEGAL EFFECT WHATSOEVER. ANY TRANSFEREE OF SUCH A BLOCK OF LESS THAN
100 PREFERRED SECURITIES SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH PREFERRED
SECURITIES FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED TO THE RECEIPT OF
DISTRIBUTIONS ON SUCH PREFERRED SECURITIES, AND SUCH TRANSFEREE SHALL BE DEEMED
TO HAVE NO INTEREST WHATSOEVER IN SUCH PREFERRED SECURITIES.]**
Bear Stearns Capital Trust II, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that
_________________________________________________________________ (the "Holder")
is the registered owner of [the number of Preferred Securities of the Trust
specified in Schedule A hereto]*
C-1
<PAGE>
[_____________________________________________ (__________) Preferred Securities
of the Trust]** representing an undivided beneficial interest in the assets of
the Trust and designated the 7 1/2% Trust Issued Preferred Securities of Bear
Stearns Capital Trust II liquidation amount $25 per Preferred Security) (the
"Preferred Securities"). The Preferred Securities are transferable on the books
and records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer as
provided in Section 5.4 of the Trust Agreement (as defined below). The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities are set forth in, and this certificate
and the Preferred Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Trust dated as of December 16, 1998, as the same may be
amended from time to time (the "Trust Agreement"). The Holder is entitled to the
benefits of the Preferred Securities Guarantee Agreement entered into by The
Bear Stearns Companies Inc., a Delaware corporation, and The Chase Manhattan
Bank as guarantee trustee, dated as of December 16, 1998, as the same may be
amended from time to time (the "Guarantee Agreement"), to the extent provided
therein. The Trust will furnish a copy of the Trust Agreement and the Guarantee
Agreement to the Holder without charge upon written request to the Trust at its
principal place of business.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
[remainder of page left blank intentionally]
C-2
<PAGE>
IN WITNESS WHEREOF, one of the administrators of the Trust has executed
this certificate this ____ day of ____________, ____.
By:
-------------------------------
Name:
Title: Administrator
__________
* Insert in book-entry securities only.
** Insert in definitive securities only.
C-3
<PAGE>
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers the
within Preferred Security and all rights thereunder, unto
________________________________________
Please insert Social Security
or other identifying number of assignee:
____________________________________________________________
(Name and Address of Assignee, including Zip Code,
must be printed or typewritten)
and hereby irrevocably constitutes and appoints
________________________________________________________________________________
Attorney to transfer said Preferred Security on the Register of the Preferred
Securities, with full power of substitution in the premises.
Date: ------------------------------------
Signature(s)
Signature(s) must be guaranteed by a
commercial bank or trust company or
a member firm of a major stock
exchange.
NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Preferred Security in every
particular, without alteration or enlargement or any change whatever.
C-4
<PAGE>
SCHEDULE A
CHANGES TO NUMBER OF PREFERRED SECURITIES
IN BOOK-ENTRY SECURITY
The initial number of Preferred Securities evidenced by this Book-Entry
Preferred Securities Certificate is ____________.
Number of Preferred Securities
by which this
Book-entry Security Remaining Amount
is to be Reduced of this Notation
Date and Reason for Reduction Book-entry Security Made by
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C-5
Certificate No. P-1 No. of Preferred Securities 8,000,000
CUSIP NO. 07383J 20 9
CERTIFICATE EVIDENCING
7 1/2% TRUST ISSUED PREFERRED SECURITIES
OF
BEAR STEARNS CAPITAL TRUST II
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO BEAR STEARNS
CAPITAL TRUST II OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO A PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Bear Stearns Capital Trust II, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
Cede & Co. (the "Holder") is the registered owner of the number of Preferred
Securities of the Trust specified in Schedule A hereto representing an undivided
beneficial interest in the assets of the Trust and designated the 7 1/2% Trust
Issued Preferred Securities of Bear Stearns Capital Trust II liquidation amount
$25 per Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer as provided in Section 5.4 of the Trust
Agreement (as defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities are set forth in, and this certificate and the Preferred Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the Trust dated
as of December 16, 1998, as the same may be amended from time to time (the
"Trust Agreement"). The Holder is entitled to the benefits of the Preferred
Securities Guarantee Agreement entered into by The Bear Stearns Companies Inc.,
a Delaware corporation, and The Chase Manhattan Bank as guarantee trustee, dated
as of December 16, 1998, as the same may be amended from time to time (the
"Guarantee Agreement"), to the extent provided therein. The Trust will furnish a
copy of the Trust Agreement and the Guarantee Agreement to the Holder without
charge upon written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
<PAGE>
IN WITNESS WHEREOF, one of the administrators of the Trust has
executed this certificate this 16th day of December, 1998.
By: /s/ William J. Montgoris
----------------------------------------
Name: William J. Montgoris
Title: Administrator
<PAGE>
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers the within Preferred Security and all rights thereunder, unto
----------------------------------------
Please insert Social Security
or other identifying number of assignee:
------------------------------------------------------------
(Name and Address of Assignee, including Zip Code,
must be printed or typewritten)
and hereby irrevocably constitutes and appoints
- ------------------------------------------------------------------------------
Attorney to transfer said Preferred Security on the Register of the Preferred
Securities, with full power of substitution in the premises.
Date: -------------------------------------------
Signature(s)
Signature(s) must be guaranteed by a
commercial bank or trust company or a member
firm of a major stock exchange.
NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Preferred Security in every
particular, without alteration or enlargement or any change
whatever.
<PAGE>
SCHEDULE A
CHANGES TO NUMBER OF PREFERRED SECURITIES
IN BOOK-ENTRY SECURITY
The initial number of shares of Preferred Securities evidenced by this
Book-Entry Preferred Securities Certificate is 8,000,000.
- --------------------------------------------------------------------------------
Number of Preferred
Securities by which this
Book-entry Security is to Remaining Amount of
Date be Reduced and Reason for this Book-entry Notation Made
Reduction Security by
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Certificate No. P-2 No. of Preferred Securities 4,000,000
CUSIP NO. 07383J 20 9
CERTIFICATE EVIDENCING
7 1/2% TRUST ISSUED PREFERRED SECURITIES
OF
BEAR STEARNS CAPITAL TRUST II
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO BEAR STEARNS
CAPITAL TRUST II OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO A PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Bear Stearns Capital Trust II, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
Cede & Co. (the "Holder") is the registered owner of the number of Preferred
Securities of the Trust specified in Schedule A hereto representing an undivided
beneficial interest in the assets of the Trust and designated the 7 1/2% Trust
Issued Preferred Securities of Bear Stearns Capital Trust II liquidation amount
$25 per Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer as provided in Section 5.4 of the Trust
Agreement (as defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities are set forth in, and this certificate and the Preferred Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the Trust dated
as of December 16, 1998, as the same may be amended from time to time (the
"Trust Agreement"). The Holder is entitled to the benefits of the Preferred
Securities Guarantee Agreement entered into by The Bear Stearns Companies Inc.,
a Delaware corporation, and The Chase Manhattan Bank as guarantee trustee, dated
as of December 16, 1998, as the same may be amended from time to time (the
"Guarantee Agreement"), to the extent provided therein. The Trust will furnish a
copy of the Trust Agreement and the Guarantee Agreement to the Holder without
charge upon written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
<PAGE>
IN WITNESS WHEREOF, one of the administrators of the Trust has
executed this certificate this 16th day of December, 1998.
By: /s/ William J. Montgoris
------------------------------------
Name: William J. Montgoris
Title: Administrator
<PAGE>
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers the within Preferred Security and all rights thereunder, unto
----------------------------------------
Please insert Social Security
or other identifying number of assignee:
------------------------------------------------------------
(Name and Address of Assignee, including Zip Code,
must be printed or typewritten)
and hereby irrevocably constitutes and appoints
- ------------------------------------------------------------------------------
Attorney to transfer said Preferred Security on the Register of the Preferred
Securities, with full power of substitution in the premises.
Date: --------------------------------------------
Signature(s)
Signature(s) must be guaranteed by a
commercial bank or trust company or a member
firm of a major stock exchange.
NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Preferred Security in every
particular, without alteration or enlargement or any change
whatever.
<PAGE>
SCHEDULE A
CHANGES TO NUMBER OF PREFERRED SECURITIES
IN BOOK-ENTRY SECURITY
The initial number of shares of Preferred Securities evidenced by this
Book-Entry Preferred Securities Certificate is 4,000,000.
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Number of Preferred
Securities by which this
Book-entry Security is to Remaining Amount of
Date be Reduced and Reason for this Book-entry Notation Made
Reduction Security by
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================================================================================
PREFERRED SECURITIES GUARANTEE AGREEMENT
BEAR STEARNS CAPITAL TRUST II
Dated as of December 16, 1998
==============================================================================
<PAGE>
CROSS-REFERENCE TABLE
Trust Preferred
Indenture Securities
Act Section Guarantee
- ----------- Section
-----------
310 (a)................................................... 4.1(a)
(b)................................................... 4.1(c)
(c)................................................... Not Applicable
311 (a)................................................... 2.2(a)
(b)................................................... 2.2(b)
(c)................................................... Not Applicable
312 (a)................................................... 2.2(a)
(b)................................................... 2.2(b)
313 ...................................................... 2.3
314 (a)................................................... 2.4
(b)................................................... Not Applicable
(c)................................................... 2.5
(d)................................................... Not Applicable
(f)................................................... Not Applicable
315 (a)................................................... 3.1(b)
(b)................................................... 2.7
(c)................................................... 3.1(a)
(d)................................................... 3.1(a)
316 (a)................................................... 5.4(a), 2.6
__________
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
a part of this Preferred Securities Guarantee.
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation..................................1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application................................5
SECTION 2.2 Lists of Holders of Securities..................................5
SECTION 2.3 Reports by the Guarantee Trustee................................5
SECTION 2.4 Periodic Reports to Guarantee Trustee...........................6
SECTION 2.5 Evidence of Compliance with Conditions Precedent................6
SECTION 2.6 Events of Default; Waiver.......................................6
SECTION 2.7 Events of Default; Notice.......................................6
SECTION 2.8 Conflicting Interests...........................................7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee......................7
SECTION 3.2 Certain Rights of Guarantee Trustee.............................9
SECTION 3.3 Not Responsible for Recitals or Issuance of Preferred
Securities Guarantee.........................................11
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility.................................11
SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustee......12
ARTICLE V
GUARANTEE
SECTION 5.1 Preferred Securities Guarantee.................................12
SECTION 5.2 Waiver of Notice and Demand....................................13
SECTION 5.3 Obligations Not Affected.......................................13
SECTION 5.4 Rights of Holders..............................................14
SECTION 5.5 Guarantee of Payment...........................................14
SECTION 5.6 Subrogation....................................................15
SECTION 5.7 Independent Obligations........................................15
<PAGE>
SECTION 5.8 Consolidation, Merger, Sale of Assets and Other
Transactions.................................................15
ARTICLE VI
SUBORDINATION
SECTION 6.1 Ranking........................................................16
ARTICLE VII
TERMINATION
SECTION 7.1 Termination....................................................16
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation....................................................16
SECTION 8.2 Indemnification................................................17
SECTION 8.3 Compensation; Reimbursement of Expenses........................17
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.........................................18
SECTION 9.2 Amendments.....................................................18
SECTION 9.3 Notices........................................................18
SECTION 9.4 Benefit........................................................19
SECTION 9.5 Governing Law..................................................19
-ii-
<PAGE>
PREFERRED SECURITIES GUARANTEE AGREEMENT
PREFERRED SECURITIES GUARANTEE AGREEMENT, dated as of December 16,
1998 (the "Preferred Securities Guarantee") is executed and delivered by The
Bear Stearns Companies Inc., a Delaware corporation (the "Guarantor"), and The
Chase Manhattan Bank, a New York State banking corporation, as trustee (the
"Guarantee Trustee"), for the benefit of the Holders (as defined herein) from
time to time of the Preferred Securities (as defined herein) of Bear Stearns
Capital Trust II, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated
as of December 16, 1998 (the "Trust Agreement"), among the trustees named
therein of the Issuer, the administrators named therein, The Bear Stearns
Companies Inc., as depositor, and the holders from time to time of undivided
beneficial interests in the assets of the Issuer, the Issuer is issuing on the
date hereof 12,000,000 shares ($300,000,000 aggregate Liquidation Amount) of 7
1/2% Trust Issued Preferred Securities (the "Preferred Securities");
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Preferred Securities Guarantee, to pay to the
Holders of Preferred Securities the Guarantee Payments (as defined herein) and
to make certain other payments on the terms and conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a common
securities guarantee agreement (the "Common Securities Guarantee") in similar
terms to this Preferred Securities Guarantee for the benefit of the holders of
the Common Securities (as defined in the Trust Agreement) of the Issuer, except
that if an Event of Default (as defined in the Trust Agreement), has occurred
and is continuing, the rights of holders of the Common Securities to receive
Guarantee Payments under the Common Securities Guarantee are subordinated to the
rights of Holders of Preferred Securities to receive Guarantee Payments under
this Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Preferred Securities
Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation.
In this Preferred Securities Guarantee, unless the context otherwise
requires:
<PAGE>
(a) capitalized terms used in this Preferred Securities Guarantee
but not defined in the preamble above have the respective meanings assigned to
them in this Section 1.1;
(b) a term defined anywhere in this Preferred Securities Guarantee
has the same meaning throughout;
(c) all references to "the Preferred Securities Guarantee" or "this
Preferred Securities Guarantee" are to this Preferred Securities Guarantee as
modified, supplemented or amended from time to time;
(d) all references in this Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this Preferred Securities
Guarantee, unless otherwise specified;
(e) terms defined in the Trust Agreement as at the date of execution
of this Preferred Securities Guarantee or in the Trust Indenture Act as the case
may be, have the same meanings when used in this Preferred Securities Guarantee,
unless otherwise defined in this Preferred Securities Guarantee or unless the
context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Corporate Trust Office" means the office of the Guarantee Trustee
at which the corporate trust business of the Guarantee Trustee shall, at any
particular time, be principally administered, which office at the date of
execution of this Preferred Securities Guarantee is located at 450 West 33rd
Street, New York, New York 10001.
"Covered Person" means any Holder or beneficial owner of
Preferred Securities.
"Debentures" means the junior subordinated debentures of The Bear
Stearns Companies Inc. designated the 7 1/2% Junior Subordinated Deferrable
Interest Debentures due December 15, 2028 held by the Property Trustee (as
defined in the Trust Agreement) of the Issuer.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Preferred Securities Guarantee.
"Existing Indenture" means the Indenture, dated as of January 29,
1997, between the Guarantor and The Chase Manhattan Bank, as trustee, as amended
or supplemented from time to time.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by the Issuer: (i) any accumulated and unpaid Distributions (as
defined in the Trust Agreement) which are required to be paid on such Preferred
Securities to the extent the Issuer shall have
-2-
<PAGE>
funds available therefor, (ii) the redemption price, including all accumulated
and unpaid Distributions to the date of redemption (the "Redemption Price") to
the extent the Issuer has funds available therefor, with respect to any
Preferred Securities called for redemption by the Issuer, and (iii) upon a
voluntary or involuntary dissolution, winding-up or termination of the Issuer
(other than in connection with the distribution of Debentures to the Holders in
exchange for Preferred Securities as provided in the Trust Agreement), the
lesser of (a) the aggregate of the Liquidation Amount and all accumulated and
unpaid Distributions on the Preferred Securities to the date of payment, to the
extent the Issuer shall have funds available therefor, and (b) the amount of
assets of the Issuer remaining available for distribution to Holders in
liquidation of the Issuer (in either case, the "Liquidation Distribution").
"Guarantees" means the Common Securities Guarantee and this
Preferred Securities Guarantee, collectively.
"Guarantee Trustee" means The Chase Manhattan Bank, a New York State
banking corporation, until a Successor Guarantee Trustee has been appointed and
has accepted such appointment pursuant to the terms of this Preferred Securities
Guarantee and thereafter means each such Successor Guarantee Trustee.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer, of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Guarantee Trustee, any Affiliate of
the Guarantee Trustee, or any officers, directors, shareholders, members,
partners, employees, representatives, nominees, custodians or agents of the
Guarantee Trustee.
"Indenture" means the Indenture dated as of December 16, 1998,
between the Guarantor and The Chase Manhattan Bank, not in its individual
capacity but solely as trustee, and any indenture supplemental thereto pursuant
to which the Debentures are to be issued to the Property Trustee of the Issuer.
"Liquidation Distribution" has the meaning set forth in the
definition of "Guarantee Payments" herein.
"Majority in Liquidation Amount of the Preferred Securities" means,
except as provided by the Trust Indenture Act, a vote by Holder(s) of Preferred
Securities, voting together as a class, but separately from the holders of
Common Securities, of more than 50% of the aggregate Liquidation Amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all Preferred Securities then outstanding.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board or any Vice Chairman of the Board or the President or any Executive
Vice President or Chief
-3-
<PAGE>
Operating Officer or Chief Financial Officer of the Depositor and by the
Treasurer or an Assistant Treasurer or Controller or the Secretary or an
Assistant Secretary of the Depositor and delivered to the Guarantee Trustee. Any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Preferred Securities Guarantee (other than
pursuant to Section 2.4) shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Other Guarantees" means all other guarantees (if any) to be issued
by the Company with respect to capital securities (if any) to be issued by other
trusts to be established by the Company (if any).
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee,
any officer within the Corporate Trust Office of the Guarantee Trustee,
including any vice president, any assistant vice president, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer, any senior
trust officer, or other officer of the Corporate Trust Office of the Guarantee
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Event of Default" means an "Event of Default" as defined
in the Trust Agreement.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trust Securities" means the Common Securities and the Preferred
Securities.
-4-
<PAGE>
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Preferred Securities Guarantee is subject to the provisions
of the Trust Indenture Act and shall, to the extent applicable, be governed by
such provisions; and
(b) if and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
SECTION 2.2 Lists of Holders of Securities.
(a) The Guarantor shall provide the Guarantee Trustee (i) within
five days after each record date for payment of Distributions, a list, in such
form as the Guarantee Trustee may reasonably require, of the names and addresses
of the Holders of the Preferred Securities ("List of Holders") as of such record
date, provided that the Guarantor shall not be obligated to provide such List of
Holders at any time the List of Holders does not differ from the most recent
List of Holders given to the Guarantee Trustee by the Guarantor, and (ii) at any
other time within 30 days of receipt by the Guarantor of a written request for a
List of Holders, which List of Holders shall be as of a date no more than 14
days before such List of Holders is given to the Guarantee Trustee. The
Guarantee Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under
Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Guarantee Trustee.
Not later than January 15 of each year commencing January 15, 2000,
the Guarantee Trustee shall provide to the Holders of the Preferred Securities
such reports dated as of the immediately preceding November 15 as are required
by Section 313(a) of the Trust Indenture Act, if any, in the form and in the
manner provided by Section 313 of the Trust Indenture Act. The Guarantee Trustee
shall also comply with the requirements of Section 313(d) of the Trust Indenture
Act. The Guarantor will notify the Guarantee Trustee if and when any Preferred
Securities are listed on any exchange, interdealer quotation system or
self-regulatory organization.
SECTION 2.4 Periodic Reports to Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the Securities
and Exchange Commission and the Holders as applicable, such documents, reports
and information (if any) as required by Section 314 and the compliance
certificate required by Section 314(a)(4) of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314
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of the Trust Indenture Act, such compliance certificate to be delivered annually
on or before September 15 of each year beginning in 1999.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence
of compliance with any conditions precedent provided for in this Preferred
Securities Guarantee that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) of the Trust Indenture Act may
be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver.
The Holders of a Majority in Liquidation Amount of the Preferred
Securities may, voting or consenting as a class, on behalf of the Holders of all
of the Preferred Securities, waive any past Event of Default and its
consequences. Upon such waiver, any such Event of Default shall cease to exist,
and shall be deemed to have been cured, for every purpose of this Preferred
Securities Guarantee, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent therefrom.
SECTION 2.7 Events of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the occurrence
of an Event of Default, transmit by mail, first class postage prepaid, to the
Holders of the Preferred Securities, notices of all Events of Default actually
known to a Responsible Officer of the Guarantee Trustee, unless such defaults
have been cured before the giving of such notice; provided, however, that,
except in the case of a default in the payment of a Guarantee Payment, the
Guarantee Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee, or a trust committee of
directors and/or responsible officers of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Preferred Securities.
(b) The Guarantee Trustee shall not be deemed to have knowledge of
any Event of Default unless the Guarantee Trustee shall have received written
notice thereof from the Guarantor or a Holder, or a Responsible Officer of the
Guarantee Trustee charged with the administration of this Preferred Securities
Guarantee shall have obtained written notice thereof.
SECTION 2.8 Conflicting Interests.
The Indenture and the securities issued or to be issued thereunder;
the Trust Agreement and the Trust Securities issued or to be issued thereunder;
any Preferred Securities Guarantee Agreement relating to a Bear Stearns Trust
(as defined in the Indenture and the Existing Indenture) between the Guarantor
and The Chase Manhattan Bank, as guarantee trustee; any Amended and Restated
Trust Agreement relating to a Bear Stearns Trust among the Guarantor, as
depositor, The Chase Manhattan Bank, as property trustee, Chase Manhattan Bank
Delaware, as Delaware trustee, the administrators named therein and the several
holders
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and the Trust Securities issued and to be issued thereunder; and the Existing
Indenture and the securities issued or to be issued thereunder, shall be deemed
to be specifically described in this Preferred Securities Guarantee for the
purposes of clause (i) of the proviso contained in Section 310(b)(l) of the
Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee.
(a) This Preferred Securities Guarantee shall be held by the
Guarantee Trustee for the benefit of the Holders of the Preferred Securities,
and the Guarantee Trustee shall not transfer this Preferred Securities Guarantee
to any Person except a Holder of Preferred Securities exercising his or her
rights pursuant to Section 5.4(b) or to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee Trustee, upon
acceptance by such Successor Guarantee Trustee of its appointment hereunder, and
such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer
of the Guarantee Trustee has occurred and is continuing, the Guarantee Trustee
shall enforce this Preferred Securities Guarantee for the benefit of the Holders
of the Preferred Securities.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Preferred Securities Guarantee, and no implied covenants shall be read into
this Preferred Securities Guarantee against the Guarantee Trustee. In case an
Event of Default has occurred (that has not been cured or waived pursuant to
Section 2.6) and is actually known to a Responsible Officer of the Guarantee
Trustee, the Guarantee Trustee shall exercise such of the rights and powers
vested in it by this Preferred Securities Guarantee, and use the same degree of
care and skill in its exercise thereof, as a prudent person would exercise or
use under the circumstances in the conduct of his or her own affairs.
(d) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Guarantee Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee Trustee shall
be determined solely by the express provisions of this Preferred
Securities
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Guarantee, and the Guarantee Trustee shall not be liable except
for the performance of such duties and obligations as are
specifically set forth in this Preferred Securities Guarantee, and
no implied covenants or obligations shall be read into this
Preferred Securities Guarantee against the Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
the Guarantee Trustee and conforming to the requirements of this
Preferred Securities Guarantee; but in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Guarantee Trustee, the
Guarantee Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Preferred Securities Guarantee;
(ii) the Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that such Responsible Officer of the
Guarantee Trustee or the Guarantee Trustee was negligent in ascertaining
the pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a Majority
in Liquidation Amount of the Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee, or exercising any trust or power conferred upon the
Guarantee Trustee under this Preferred Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee shall
require the Guarantee Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if the Guarantee
Trustee shall have reasonable grounds for believing that the repayment of
such funds is not reasonably assured to it under the terms of this
Preferred Securities Guarantee or indemnity, reasonably satisfactory to
the Guarantee Trustee, against such risk or liability is not reasonably
assured to it.
SECTION 3.2 Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely, and shall be
fully protected in acting or refraining from acting upon, any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and
to have been signed, sent or presented by the proper party or parties.
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(ii) Any direction or act of the Guarantor contemplated by
this Preferred Securities Guarantee shall be sufficiently evidenced by an
Officers' Certificate.
(iii) Whenever, in the administration of this Preferred
Securities Guarantee, the Guarantee Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or omitting any
action hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officers' Certificate which, upon
receipt of such request, shall be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee shall have no duty to see to any
recording, filing or registration of any instrument (or any rerecording,
refiling or registration thereof).
(v) The Guarantee Trustee may consult with counsel of its
selection, and the written advice or opinion of such counsel with respect
to legal matters shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in
good faith and in accordance with such advice or opinion. Such counsel may
be counsel to the Guarantor or any of its Affiliates and may include any
of its employees. The Guarantee Trustee shall have the right at any time
to seek instructions concerning the administration of this Guarantee from
any court of competent jurisdiction.
(vi) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Preferred
Securities Guarantee at the request or direction of any Holder, unless
such Holder shall have provided to the Guarantee Trustee such security and
indemnity, reasonably satisfactory to the Guarantee Trustee, against the
costs, expenses (including attorneys' fees and expenses and the expenses
of the Guarantee Trustee's agents, nominees or custodians) and liabilities
that might be incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the Guarantee
Trustee; provided, however, that nothing contained in this Section
3.2(a)(vi) shall be taken to relieve the Guarantee Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Preferred Securities Guarantee.
(vii) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit.
(viii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents,
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nominees, custodians or attorneys, and the Guarantee Trustee shall not
be responsible for any misconduct or negligence on the part of any agent
or attorney appointed with due care by it hereunder.
(ix) Whenever in the administration of this Preferred
Securities Guarantee the Guarantee Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Guarantee Trustee (A) may request
instructions from the Holders of a Majority in Liquidation Amount of the
Preferred Securities, (B) may refrain from enforcing such remedy or right
or taking such other action until such instructions are received, and (C)
shall be protected in conclusively relying on or acting in accordance with
such instructions.
(x) The Guarantee Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Preferred Securities Guarantee.
(b) No provision of this Preferred Securities Guarantee shall be
deemed to impose any duty or obligation on the Guarantee Trustee to perform any
act or acts or exercise any right, power, duty or obligation conferred or
imposed on it, in any jurisdiction in which it shall be illegal or in which the
Guarantee Trustee shall be unqualified or incompetent in accordance with
applicable law to perform any such act or acts or to exercise any such right,
power, duty or obligation. No permissive power or authority available to the
Guarantee Trustee shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of
Preferred Securities Guarantee.
The recitals contained in this Preferred Securities Guarantee shall
be taken as the statements of the Guarantor, and the Guarantee Trustee does not
assume any responsibility for their correctness. The Guarantee Trustee makes no
representation as to the validity or sufficiency of this Preferred Securities
Guarantee.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof or
of the District of
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Columbia, or a corporation or Person permitted by the Securities and
Exchange Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least fifty million
U.S. dollars ($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the supervising or examining authority
referred to above, then, for the purposes of this Section 4.1(a)(ii), the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible
to so act under Section 4.1(a), the Guarantee Trustee shall immediately resign
in the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act, subject to the penultimate
paragraph thereof.
SECTION 4.2 Appointment, Removal and Resignation of Guarantee
Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor except during an
Event of Default.
(b) The Guarantee Trustee shall not be removed in accordance with
Section 4.2(a) until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold office
until a Successor Guarantee Trustee shall have been appointed or until its
removal or resignation. The Guarantee Trustee may resign from office (without
need for prior or subsequent accounting) by an instrument in writing executed by
the Guarantee Trustee and delivered to the Guarantor, which resignation shall
not take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by an instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery of an instrument of removal or resignation, the Guarantee Trustee
resigning or being removed may petition any court of competent jurisdiction for
appointment of a Successor Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Guarantee Trustee.
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(e) No Guarantee Trustee shall be liable for the acts or omissions
to act of any Successor Guarantee Trustee.
(f) Upon termination of this Preferred Securities Guarantee or
removal or resignation of the Guarantee Trustee pursuant to this Section 4.2,
the Guarantor shall pay to the Guarantee Trustee all amounts owing to the
Guarantee Trustee under Sections 8.2 and 8.3 accrued to the date of such
termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1 Preferred Securities Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full
to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim that the Issuer may have or assert. Such
obligations will not be discharged except by payment of the Guarantee Payments
in full. The Guarantor's obligation to make a Guarantee Payment may be satisfied
by direct payment of the required amounts by the Guarantor to the Holders or by
causing the Issuer to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Preferred
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Guarantee Trustee, the Issuer or any other Person before proceeding against
the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 5.3 Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Preferred Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or
any portion of the Distributions, Redemption Price, Liquidation Distribution or
any other sums payable under the terms of the Preferred Securities or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Preferred Securities (other than an extension of
time for payment of Distributions, Redemption Price, Liquidation Distribution or
other sum payable that results from the extension of any interest payment
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period on the Debentures or any extension of the maturity date of the Debentures
permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Issuer granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Issuer or any of the assets of
the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of this Section 5.3 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Rights of Holders.
(a) The Holders of a Majority in Liquidation Amount of the Preferred
Securities have the right to direct the time, method and place of conducting of
any proceeding for any remedy available to the Guarantee Trustee in respect of
this Preferred Securities Guarantee or exercising any trust or power conferred
upon the Guarantee Trustee under this Preferred Securities Guarantee; provided
however, that (subject to Section 3.1) the Guarantee Trustee shall have the
right to decline to follow any such direction if the Guarantee Trustee shall
determine that the actions so directed would be unjustly prejudicial to the
Holders not taking part in such direction or if the Guarantee Trustee being
advised by counsel determines that the action or proceedings directed may not
lawfully be taken or if the Guarantor Trustee in good faith by its board of
directors or trustees, executive committees or a trust committee of directors or
trustees and/or Responsible Officers shall determine that the action or
proceedings so directed would involve the Guarantee Trustee in personal
liability.
(b) Any Holder of Preferred Securities may institute a legal
proceeding directly against the Guarantor to enforce its rights under this
Preferred Securities Guarantee, without first instituting a legal proceeding
against the Issuer, the Guarantee Trustee or any other Person. The Guarantor
waives any right or remedy to require that any such action be
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brought first against the Issuer or any other Person before so proceeding
directly against the Guarantor.
(c) The Guarantor expressly acknowledges that (i) this Preferred
Securities Guarantee will be deposited with the Guarantee Trustee to be held for
the benefit of the Holders and (ii) the Guarantee Trustee has the right to
enforce this Preferred Securities Guarantee on behalf of the Holders.
SECTION 5.5 Guarantee of Payment.
This Preferred Securities Guarantee creates a guarantee of payment
and not of collection. This Preferred Securities Guarantee will not be
discharged except by payment of the Guarantee Payments in full (without
duplication of amounts theretofore paid by the Issuer) or upon distribution of
Debentures to Holders as provided in the Trust Agreement.
SECTION 5.6 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Preferred Securities against the Issuer in respect of any amounts
paid to such Holders by the Guarantor under this Preferred Securities Guarantee;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any right
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Preferred
Securities Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Preferred Securities Guarantee. If any amount shall be
paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Holders.
SECTION 5.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Preferred
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
SECTION 5.8 Consolidation, Merger, Sale of Assets and Other
Transactions.
The Guarantor shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, and no Person shall consolidate with or merge into
the Guarantor or convey, transfer or lease its properties and assets
substantially as an entirety to the Guarantor, unless (i) either the Guarantor
shall be the continuing corporation, or the successor shall be a Person
organized under the laws of the United States or any state or the District of
Columbia, and such successor Person expressly assumes the Guarantor's
obligations under this Preferred Securities Guarantee by written instrument in
form satisfactory to the Guarantee Trustee, (ii) immediately after
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giving effect thereto, no Event of Default under this Preferred Securities
Guarantee, and no event which, after notice or lapse of time or both, would
become an Event of Default under this Preferred Securities Guarantee, shall have
occurred and be continuing, and (iii) such consolidation, merger, conveyance,
transfer or lease shall be permitted under the Trust Agreement and the Indenture
and does not give rise to any breach or violation of the Trust Agreement or
Indenture.
ARTICLE VI
SUBORDINATION
SECTION 6.1 Ranking.
This Preferred Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank subordinate and junior in right of
payment to all present and future Senior Indebtedness of the Company (as defined
in the Indenture). This Preferred Securities Guarantee will rank pari passu with
all Other Guarantees. By their acceptance thereof, each Holder of Preferred
Securities agrees to the foregoing provisions of this Preferred Securities
Guarantee and the other terms set forth herein.
If a Trust Event of Default has occurred and is continuing, the
rights of holders of the Common Securities of the Issuer to receive payments
under the Common Securities Guarantee are subordinated to the rights of Holders
of Preferred Securities to receive Guarantee Payments.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.
This Preferred Securities Guarantee shall terminate, subject to
Sections 8.2 and 8.3, (i) upon full payment of the Redemption Price of all
Preferred Securities, (ii) upon the distribution of the Debentures to the
Holders of all of the Preferred Securities or (iii) upon full payment of the
amounts payable in accordance with the Trust Agreement upon dissolution of the
Issuer. Notwithstanding the foregoing, this Preferred Securities Guarantee will
continue to be effective or will be reinstated, as the case may be, if at any
time any Holder of Preferred Securities must restore payment of any sums paid
under the Preferred Securities or under this Preferred Securities Guarantee.
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ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith in accordance with this
Preferred Securities Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by this Preferred Securities Guarantee or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's negligence or willful misconduct
with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Issuer or the Guarantor and upon such
information, opinions, reports or statements presented to the Trust or the
Guarantor by any Persons to matters the Indemnified Person reasonably believes
are within such other Person's professional or expert competence and who, if
selected by such Indemnified Person, has been selected with reasonable care by
such Indemnified Person, including information, opinions, reports or statements
as to the value and amount of the assets, liabilities, profits, losses, or any
other facts pertinent to the existence and amount of assets from which
Distributions to Holders of Preferred Securities might properly be paid.
SECTION 8.2 Indemnification. The Guarantor agrees to indemnify each
Indemnified Person for, and to hold each Indemnified Person harmless against,
any and all loss, liability, damage, claim or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending
itself against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The Guarantee
Trustee will not claim or exact any lien or charge on any Guarantee Payments as
a result of any amount due to it under this Preferred Securities Guarantee. The
obligation to indemnify as set forth in this Section 8.2 shall survive the
termination of this Preferred Securities Guarantee.
SECTION 8.3 Compensation; Reimbursement of Expenses.
The Guarantor agrees:
(a) to pay to the Guarantee Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust); and
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(b) except as otherwise expressly provided herein, to reimburse the
Guarantee Trustee upon request for all reasonable expenses, disbursements and
advances incurred or made by it in accordance with any provision of this
Preferred Securities Guarantee (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith.
The provisions of this Section 8.3 shall survive the termination of
this Preferred Securities Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.
All guarantees and agreements contained in this Preferred Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding. Except in connection with any
merger or consolidation of the Guarantor with or into another entity or any sale
or conveyance of the Guarantor's assets to another entity or of another entity's
assets to the Guarantor, in each case, to the extent permitted under Section 5.8
of this Preferred Securities Guarantee, the Guarantor may not assign its rights
or delegate its obligations under this Preferred Securities Guarantee without
the prior approval of the Holders of at least a Majority in Liquidation Amount
of the Preferred Securities.
SECTION 9.2 Amendments.
Except with respect to any changes that do not adversely affect the
rights of Holders of Preferred Securities in any material respect (in which case
no consent of Holders will be required), this Preferred Securities Guarantee may
only be amended with the prior approval of the Holders of a least a Majority in
Liquidation Amount of the Preferred Securities.
The provisions of the Trust Agreement with respect to amendments
thereof apply to the giving of such approval.
SECTION 9.3 Notices.
All notices provided for in this Preferred Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, as follows:
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(a) If given to the Guarantee Trustee, at the Guarantee Trustee's
mailing address set forth below (or such other address as the Guarantee Trustee
may give notice of to the Holders of the Preferred Securities):
The Chase Manhattan Bank
450 West 33rd Street
New York, NY 10001
Attention: Corporate Trustee Administration Department
(b) If given to the Guarantor, at the Guarantor's mailing address
set forth below (or such other address as the Guarantor may give notice of to
the Holders of the Preferred Securities and to the Guarantee Trustee):
The Bear Stearns Companies Inc.
245 Park Avenue
New York, NY 10167
Attention: Corporate Secretary
(c) If given to any Holder of Preferred Securities, at the address
set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4 Benefit.
This Preferred Securities Guarantee is solely for the benefit of the
Holders of the Preferred Securities and, subject to Section 3.1(a), is not
separately transferable from the Preferred Securities.
SECTION 9.5 Governing Law.
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
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This Preferred Securities Guarantee is executed as of the day and
year first above written.
THE BEAR STEARNS COMPANIES INC.,
as Guarantor
By: /s/ William J. Montgoris
---------------------------------------
Name: William J. Montgoris
Title: Chief Operating Officer
THE CHASE MANHATTAN BANK,
as Guarantee Trustee
By: /s/ William G. Keenan
--------------------------------------
Name: William G. Keenan
Title: Trust Officer
