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____________ SUPPLEMENTAL INDENTURE
between
THE BEAR XXXXXXX COMPANIES INC.
and
THE CHASE MANHATTAN BANK
Dated as of _______________, ____
_____________________ JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURES
DUE ________________, ____
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TABLE OF CONTENTS
Page
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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..............................6
SECTION 2.02 Stated Maturity ..............................................7
SECTION 2.03 Form and Payment; Minimum Transfer Restriction ...............7
SECTION 2.04 Exchange and Registration of Transfer of
Debentures; Depositary .......................................7
SECTION 2.05 Interest .....................................................9
ARTICLE III
REDEMPTION AND PREPAYMENT OF THE DEBENTURES
SECTION 3.01 Optional Redemption by Company...............................10
SECTION 3.02 Special Event Prepayment.....................................10
SECTION 3.03 Notice of Prepayment.........................................11
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.01 Extension of Interest Payment Period.........................11
SECTION 4.02 Notice of Extension..........................................12
ARTICLE V
EXPENSES
SECTION 5.01 Payment of Expenses..........................................12
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.01 Form of Debenture............................................13
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ARTICLE VII
ISSUE OF DEBENTURES
SECTION 7.01 Issue of Debentures..........................................14
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Ratification of Base Indenture; Supplemental Indenture
Controls ....................................................14
SECTION 8.02 Trustee Not Responsible for Recitals.........................14
SECTION 8.03 Governing Law................................................14
SECTION 8.04 Separability.................................................14
SECTION 8.05 Counterparts.................................................15
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__________ SUPPLEMENTAL INDENTURE, dated as of __________, ____ (the
"Supplemental Indenture"), between The Bear Xxxxxxx Companies Inc., a Delaware
corporation (the "Company"), and The Chase Manhattan Bank, as trustee (the
"Trustee") under the Indenture dated as of ________ _, ____ 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 _________________ Junior Subordinated Deferrable
Interest Debentures due __________, 20__ (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 Xxxxxxx Capital Trust __, a Delaware statutory business trust
(the "Trust"), has offered to the underwriters (the "Underwriters") named in
Schedule I to the Underwriting Agreement, dated __________, ____ (the
"Underwriting Agreement"), among the Underwriters, the Trust and the Company
$__________ aggregate liquidation amount of its __________________ 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 $______________ 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:
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) Affiliate; (ii) Administrators; (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.
"Adjusted CMT Rate" means, with respect to any prepayment date, the CMT
Rate plus ___%.
"Applicable Rate" with respect to interest on the Debentures shall be the
rate determined by the Calculation Agent on any Applicable Rate Determination
Date to be a rate equal to three-month LIBOR plus ___%. For this purpose, LIBOR
shall be calculated in accordance with the following provisions:
(i) With respect to an Applicable Rate Determination Date, LIBOR
will be determined on the basis of the offered rate for three-month
deposits in U.S. dollars, commencing on the second London Banking Day
immediately following such Applicable Rate Determination Date, which
appears on Telerate page 3750 (or such other page as may replace such
Telerate page 3750 for the purpose of displaying London interbank rates
of major banks), as of 11:00 a.m., London time, on such Applicable Rate
Determination Date. If no rate appears on Telerate page 3750 (or such
other page as may replace such page), LIBOR in respect of that
Applicable Rate Determination Date will be determined as if the parties
had specified the rate described in (ii) below.
(ii) With respect to an Applicable Rate Determination Date on
which no offered rate appears on Telerate page 3750 (or such other
page), as applicable, as described in (i) above, LIBOR will be
determined on the basis of the rates at approximately 11:00 a.m.,
London time, on such Applicable Rate Determination Date at which
three-month deposits in U.S. dollars are offered to prime banks in the
London interbank market by four major banks in the London interbank
market selected by the Calculation Agent commencing on the second
London Banking Day immediately following such Applicable Rate
Determination Date and in a principal amount equal to an amount of not
less than $1,000,000 that is representative of a single transaction in
such market at such time. The Calculation Agent will request the
principal London office of each of such banks to provide a quotation of
its rate. If at least two such quotations are provided, LIBOR for such
Applicable Rate Determination Date will be the arithmetic mean of such
quotations. If fewer than two quotations are provided, LIBOR for such
Applicable Rate Determination Date will be the arithmetic mean of the
rates quoted at approximately 11:00 a.m., New York City time, on such
Applicable Rate Determination Date by three major banks in the City of
New York, selected by the Calculation Agent for loans in U.S. dollars
to leading European banks, having a maturity of three months and
commencing on the second London Banking Day immediately following such
Applicable Rate Determination Date and in a principal amount equal to
an amount of not less than $1,000,000 that is representative of a
single
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transaction in such market at such time; provided, however, that if the
banks selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, LIBOR will be LIBOR in effect on such
Applicable Rate Determination Date, provided further, however, that if
the banks selected as aforesaid by the Calculation Agent are not
quoting as mentioned in this sentence and such Applicable Rate
Determination Date is prior to _____________, 20__ or prior to the
first Applicable Rate Determination Date on which LIBOR can be
determined as aforesaid, the Applicable Rate for the following
Applicable Rate Reset Date shall be the Coupon Rate.
"Applicable Rate Determination Date" shall mean the second London Banking
Day preceding each Applicable Rate Reset Date.
"Applicable Rate Reset Date" shall mean _____________, 20__ and the ____ of
each _____________, _____________, _____________ and __________ thereafter until
_____________, 20__.
"Calculation Agent" means ____________________.
"CMT Rate" will be determined by the Calculation Agent in accordance with
the following provisions:
(i) the CMT Rate will be determined on the basis of the latest
rate displayed at the close of business 10 Business Days before the
date of a Special Event Prepayment on (x) Telerate page 7055 for
"Yields on Treasury Constant Maturities -- Federal Reserve Board
Statistical Release H.15(519) -- Mondays approximately 3:45 p.m. EST"
(or "EDT" as the case may be) for U.S. Treasury Securities with a
maturity corresponding to the Remaining Life (or if no maturity is
within three months before or after the Remaining Life, yields for the
two published maturities most closely corresponding to the Remaining
Life shall be determined and the CMT Rate shall be interpolated or
extrapolated from such yields on a straight-line basis, rounded to the
nearest month), or (y) such other page as may replace page 7055, as
provided by the Telerate News Service, for the purpose of displaying
rates or prices that are comparable, as determined by the Calculation
Agent (after consultation with the Company), to the Constant Maturity
Treasury rates formerly displayed on Telerate page 7055;
(ii)if the information specified in subparagraph (i) above is not
available at the date 10 Business Days before such Special Event
Prepayment, then the CMT Rate shall be determined on the basis of the
Treasury Constant Maturity rate with a maturity corresponding to the
Remaining Life (adjusted as aforesaid) (or other United States Treasury
rate, with a maturity that is closest to ____________, 20__) published
as of that date by either the Board of Governors of the Federal Reserve
System or the United States Department of the Treasury that the
Calculation Agent (after consultation with the Company) determines to
be comparable to the rate formerly displayed on Telerate page 7055 and
published in the Federal Reserve Board Statistical Release H.15 (519);
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(iii) if the information specified in subparagraphs (i) and (ii)
is not available at the date 10 Business Days before the date of such
Special Event Prepayment then the CMT Rate shall be the yield to
maturity of the then most recently issued direct non-callable fixed
rate United States Treasury Note with an original maturity
corresponding to the Remaining Life (adjusted as aforesaid) (the
"Reference Treasury Note"), such yield to maturity to be calculated by
the Calculation Agent on the basis of the arithmetic mean of the
secondary market bid side prices for such Reference Treasury Note
quoted as of 3:00 p.m., New York City time (or the closing of the
market, if earlier), on the date 10 Business Days before the date of
such Special Event Prepayment, by (and appearing in the written records
of) three leading primary United States government securities dealers
in New York City selected by the Calculation Agent; and
(iv) if the information specified in subparagraphs (i) and (ii)
above is not available at the date 10 Business Days before such Special
Event Prepayment and at least three price quotations for the Reference
Treasury Note are not available at that date from leading primary
dealers in New York City as provided in subparagraph (iii) above, then
the CMT Rate shall be the yield to maturity of the Reference Treasury
Note, as calculated by the Calculation Agent on the basis of the
arithmetic mean of the secondary market bid side prices for such
Reference Treasury Note quoted as of 3:00 p.m., New York City time (or
the closing of the market, if earlier), on that date, by (and appearing
in the written records of) any three primary United States government
securities dealers selected by the Calculation Agent (irrespective of
where such dealers may be located).
"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 Investment Company 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 $_____ per Preferred
Security.
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"London Banking Day" shall mean any day on which dealings in deposits in
U.S. dollars are transacted in the London interbank market.
"Optional Redemption Price" has the meaning specified in Section 3.01.
"Prepayment Date" has the meaning specified in Section 3.01.
"Remaining Life" has the meaning specified in Section 3.02.
"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 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 ________________, ____.
"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 $__________ (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
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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 $__________ (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 __________, 20__ 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 $_____ and integral multiples of
$_____ 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 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 $_____ and integral multiples of $_____ in excess thereof; and
any attempted transfer, sale or other disposition of Debentures in a
denomination of less than $_____ 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
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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 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
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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 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
___% per annum until ____________, 20__, and at the Applicable Rate thereafter,
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 or the
Applicable Rate, as the case may be, compounded semiannually, payable (subject
to the provisions of Article 4) semiannually in arrears on the __________ day of
__________ and __________ of each year (each, an "Interest Payment Date"),
commencing on _________, ____ 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 _____ day of the month [immediately
prior to 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. The Company shall notify the Trustee of the Applicable Rate, as soon
as practicable after each calculation thereof.
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(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 until ____________, 20__ and
thereafter on the basis of a 360-day year and the actual number of days elapsed.
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, except that, if such Business
Day is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on the date such payment was originally payable. Until ____________,
20__, in the event that any Interest Payment Date is not a Business Day,
interest will be paid on the next succeeding Business Day (subject as
aforesaid), without any interest or other payment with respect to any such
delay. After ___________, 20__, interest shall be the amount of interest accrued
from, and including, the last date on which interest has previously been paid,
to, but excluding, the Interest Payment Date (or if such date is not a Business
Day, the next succeeding Business Day (subject as aforesaid)).
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 ____________, 20__, 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.
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 the greater of (i) 100% of the
principal amount of such Debentures or (ii) as determined by a Calculation
Agent, the sum of the present values of the principal amount that would be
payable as part of the Optional Redemption Price pursuant to Section 3.01 with
respect to an optional prepayment of such Debentures on _____________, 20__,
together with
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the present values of scheduled payments of interest from the Prepayment Date to
_____________, 20__ (the "Remaining Life"), in each case discounted to the
Prepayment Date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted CMT Rate, plus, in each case, accrued and
unpaid interest including Additional Sums, Additional Interest and Compounded
Interest thereon to but excluding the Prepayment Date, provided that with
respect to any prepayment under this Section 3.02 of Debentures as a result of a
Special Event that occurs on or after _____________, 20__ the Special Event
Prepayment Price shall be an amount equal to the Optional Redemption Price that
would be payable on optional redemption of the Debentures on the Prepayment Date
(including accrued and unpaid interest, Additional Sums, Additional Interest and
Compounded Interest to the Prepayment Date). The Company shall notify the
Trustee of the Special Event Prepayment Price, as soon as practicable after the
calculation thereof.
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 ____ consecutive semi-annual 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.
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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 10 consecutive semi-annual 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 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 semi-annual 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 ____
consecutive semi-annual 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:
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(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;
(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.
-13-
ARTICLE VII
ISSUE OF DEBENTURES
SECTION 7.01 Issue of Debentures.
Debentures in the aggregate principal amount of up to $__________ may, upon
execution of this Supplemental Indenture, be executed by the Company and
delivered to the 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
-14-
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.
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.
-15-
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 XXXXXXX COMPANIES INC.
By:
--------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trustee
By:
--------------------------------
Name:
Title:
EXHIBIT A
_____________________ JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE
DUE _____________, 20__
Registered No. __________
Dated: ____________ CUSIP __________
Registered Holder: [The Chase Manhattan Bank, as Property Trustee of Bear
Xxxxxxx Capital Trust __]*
The Bear Xxxxxxx 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 __________, 20__ 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 ___%
per annum, until _____________, 20__ (the "Coupon Rate") and thereafter at the
Applicable Rate (as defined in the Indenture referred to below) per annum
(determined as provided in the Indenture), in like coin or currency,
semiannually in arrears on the __________ day of _________ and _________ (each
an "Interest Payment Date") commencing __________, ____ 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 or the Applicable Rate, as
the case may be, compounded semiannually. 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
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the Property Trustee or a nominee of The Depository Trust Company, in which case
the Record Date will be the _____ day of the _____ month [immediately prior to
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 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 until _____________, 20__ and thereafter on
the basis of a 360-day year and the actual number of days elapsed. 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, except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the date such payment was originally payable. Until _____________, 20__, in
the event that any Interest Payment Date is not a Business Day, interest will be
paid on the next succeeding Business Day (subject as aforesaid), without any
interest or other payment with respect to any such delay. After _____________,
20__, interest shall be the amount of interest accrued from, and including, the
last date on which interest has previously been paid, to, but excluding, the
Interest Payment Date (or if such date is not a Business Day, the next
succeeding Business Day (subject as aforesaid)).
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 ___ consecutive semi-annual 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 ____________, 20__
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
A-2
repurchase of any rights distributed pursuant to a Rights Plan; (c) payments
under any Bear Xxxxxxx 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 ___ consecutive semi-annual periods or extend beyond
_____________, 20__ 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 Bear Xxxxxxx Capital Trust __ 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 ________ _,
____ 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
__________________________________ Dollars ($_________).
The Debentures evidenced by this Certificate may be transferred or
exchanged only in minimum denominations of $_____ and integral multiples of
$_____ in excess thereof, and any attempted transfer, sale or other disposition
of Debentures in a denomination of less than $_____ 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.
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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-4
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 XXXXXXX 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-5
[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 Xxxxxxx 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 Xxxxxxx 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 Xxxxxxx 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 Xxxxxxx 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 Xxxxxxx 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-6
Liquidation Amount of the corresponding Preferred Securities of such Bear
Xxxxxxx 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 Xxxxxxx 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 Xxxxxxx 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
Xxxxxxx Trust, so long as any of the corresponding series of Preferred
Securities issued by such Bear Xxxxxxx 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 Xxxxxxx 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-7
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 _____________, 20__, 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
the greater of (i) 100% of the principal amount hereof; or (ii) as determined by
a Calculation Agent, the sum of the present value of the principal amount that
would be payable with respect to an optional redemption of a Debenture on
_____________, 20__, together with the present values of scheduled payments of
interest from the prepayment date to _____________, 20__, in each case
discounted to the prepayment date on a semi-annual basis at the Adjusted CMT
Rate, plus, in each case, accrued and unpaid interest to but excluding the date
of prepayment. However, if the Company redeems the Debenture as a result of a
Special Event which occurs on or after _____________, 20__, then the Special
Event Prepayment Price shall be the Optional Redemption Price that would be
payable on optional redemption of the Debentures on the date of such prepayment,
which includes accrued and unpaid interest to 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
A-8
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 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-9
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers the
within _____________________ Junior Subordinated Deferrable Interest Debenture
(the "Debenture") and all rights thereunder, unto
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Please insert Social Security
or other identifying number of assignee:
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(Name and Address of Assignee, including Zip Code,
must be printed or typewritten)
and hereby irrevocably constitutes and appoints
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Attorney to transfer said Debenture on the Register of the Debentures, with full
power of substitution in the premises.
Date:
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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 ______________________ Junior
Subordinated Deferrable Interest Debenture in every particular,
without alteration or enlargement or any change whatever.
A-10
FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL DEBENTURE
TO REFLECT CHANGES IN PRINCIPAL AMOUNT
The initial principal amount evidenced by this Global Debenture is $________.
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Principal Amount by which this
Global Debenture is to be Reduced Remaining Principal Amount
Date and Reason for Reduction of this Global Debenture Notation Made by
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A-11
