GUARANTEE AGREEMENT between THE BEAR STEARNS COMPANIES INC. (as Guarantor) and THE BANK OF NEW YORK (as Guarantee Trustee) Dated as of __________, ____ Relating to the Preferred Securities of Bear Stearns Capital Trust __
Exhibit
4(h)
between
THE
BEAR
XXXXXXX COMPANIES INC.
(as
Guarantor)
and
THE
BANK
OF NEW YORK
(as
Guarantee Trustee)
Dated
as
of __________, ____
Relating
to the Preferred Securities of Bear Xxxxxxx Capital Trust __
CROSS-REFERENCE
TABLE
(to
be
updated)
|
Trust
Indenture Act Section
|
Guarantee
Agreement Section
|
|
|
310
(a)
|
4.1(a)
|
|
|
(b)
|
4.1(c)
|
|
|
(c)
|
Not
Applicable
|
|
|
311
(a)
|
2.2(b)
|
|
|
(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(c),(d)
|
|
|
(b)
|
2.7
|
|
|
(c)
|
3.1(c)
|
|
|
(d)
|
3.1(d)
|
|
|
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 Guarantee Agreement.
|
-i-
TABLE
OF
CONTENTS
|
Page
|
|||
|
ARTICLE
I
|
|||
|
DEFINITIONS
AND INTERPRETATION
|
|||
|
Section
1.1
|
Definitions
and Interpretation.
|
1
|
|
|
ARTICLE
II
|
|||
|
TRUST
INDENTURE ACT
|
|||
|
Section
2.1
|
Trust
Indenture Act; Application.
|
4
|
|
|
Section
2.2
|
Lists
of Holders of Securities.
|
4
|
|
|
Section
2.3
|
Reports
by the Guarantee Trustee.
|
5
|
|
|
Section
2.4
|
Periodic
Reports to Guarantee Trustee.
|
5
|
|
|
Section
2.5
|
Evidence
of Compliance with Conditions Precedent.
|
5
|
|
|
Section
2.6
|
Guarantee
Events of Default; Waiver.
|
5
|
|
|
Section
2.7
|
Events
of Default; Notice.
|
5
|
|
|
Section
2.8
|
Conflicting
Interests.
|
6
|
|
|
ARTICLE
III
|
|||
|
POWERS,
DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
|
|||
|
Section
3.1
|
Powers
and Duties of the Guarantee Trustee.
|
6
|
|
|
Section
3.2
|
Certain
Rights of Guarantee Trustee.
|
8
|
|
|
Section
3.3
|
Not
Responsible for Recitals or Issuance of Guarantee
Agreement.
|
9
|
|
|
Section
3.4
|
Compensation;
Indemnity; Fees.
|
9
|
|
|
ARTICLE
IV
|
|||
|
GUARANTEE
TRUSTEE
|
|||
|
Section
4.1
|
Guarantee
Trustee; Eligibility.
|
10
|
|
|
Section
4.2
|
Appointment,
Removal and Resignation of Guarantee Trustee.
|
10
|
|
|
ARTICLE
V
|
|||
|
GUARANTEE
|
|||
|
Section
5.1
|
Guarantee.
|
11
|
|
|
Section
5.2
|
Waiver
of Notice and Demand.
|
11
|
|
|
Section
5.3
|
Obligations
Not Affected.
|
12
|
|
|
Section
5.4
|
Rights
of Holders.
|
12
|
|
|
Section
5.5
|
Guarantee
of Payment.
|
13
|
|
|
Section
5.6
|
Subrogation.
|
13
|
|
|
Section
5.7
|
Independent
Obligations.
|
13
|
|
|
Section
5.8
|
Consolidation,
Merger, Sale of Assets and Other Transactions.
|
13
|
-ii-
|
ARTICLE
VI
|
|||
|
COVENANTS
AND SUBORDINATION
|
|||
|
Section
6.1
|
Subordination.
|
14
|
|
|
Section
6.2
|
Pari
Passu Guarantees.
|
14
|
|
|
ARTICLE
VII
|
|||
|
TERMINATION
|
|||
|
Section
7.1
|
Termination.
|
14
|
|
|
ARTICLE
VIII
|
|||
|
MISCELLANEOUS
|
|||
|
Section
8.1
|
Successors
and Assigns.
|
15
|
|
|
Section
8.2
|
Amendments.
|
15
|
|
|
Section
8.3
|
Notices.
|
15
|
|
|
Section
8.4
|
Benefit.
|
16
|
|
|
Section
8.5
|
Governing
Law.
|
16
|
|
|
Section
8.6
|
Counterparts.
|
16
|
-iii-
THIS
GUARANTEE AGREEMENT, dated as of __________, ____, (the “Guarantee
Agreement”)
is
executed and delivered by The Bear Xxxxxxx Companies Inc., a Delaware
corporation (the “Guarantor”),
and
The Bank of New York, a corporation organized under the laws of the United
States, 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 Xxxxxxx Capital Trust
__, a
Delaware statutory business trust (the “Trust”).
WHEREAS,
pursuant to an Amended and Restated Trust Agreement, dated as of __________,
____, (the “Trust
Agreement”)
among
the trustees named therein of the Trust, the administrators named therein,
The
Bear Xxxxxxx Companies Inc., as depositor, and the holders from time to
time of
undivided beneficial interests in the assets of the Trust, the Trust is
issuing
on the date hereof securities, having an aggregate Liquidation Amount of
up to
$__________, designated the Preferred Securities and having the terms set
forth
in the Trust Agreement (the “Preferred
Securities”);
WHEREAS,
the Preferred Securities will be issued by the Trust and the proceeds thereof,
together with the proceeds from the issuance of the Common Securities (as
defined in the Trust Agreement) will be used to purchase the Debentures
of the
Guarantor which will be held as Trust Property by the Property Trustee
of the
Trust for the benefit of the Trust and the Holders; and
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 Guarantee Agreement, 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;.
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 Guarantee Agreement
for the
benefit of the Holders.
ARTICLE
I
DEFINITIONS
AND INTERPRETATION
Section
1.1 Definitions
and Interpretation.
In
this
Guarantee Agreement, unless the context otherwise requires:
(a) capitalized
terms used in this Guarantee Agreement 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 Guarantee Agreement has the same meaning
throughout;
(c) all
references to “the Guarantee Agreement” or “this Guarantee Agreement” are to
this Guarantee Agreement as modified, supplemented or amended from time
to
time;
(d) all
references in this Guarantee Agreement to Articles and Sections are to
Articles and Sections of this Guarantee Agreement, unless otherwise
specified;
(e) terms
defined in the Trust Agreement as at the date of execution of this Guarantee
Agreement or in the Trust Indenture Act as the case may be, have the same
meanings when used in this Guarantee Agreement, unless otherwise defined
in this
Guarantee Agreement 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 Guarantee Agreement is located
at
000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000.
“Covered
Person”
means
any Holder or beneficial owner of Preferred Securities.
“Debentures”
means
the junior subordinated debentures of The Bear Xxxxxxx Companies Inc. designated
the Fixed/Adjustable Rate Junior Subordinated Deferrable Interest Debentures
due
__________, 20__ held by the Property Trustee (as defined in the Trust
Agreement) of the Trust.
“Existing
Indenture”
means
the Indenture, dated as of December 16, 1998, between the Guarantor and
The Bank
of New York, as successor trustee to JPMorgan Chase Bank, N.A., as amended
or
supplemented from time to time.
“Guarantee
Event
of Default”
means
a
default by the Guarantor on any of its payment or other obligations under
this
Guarantee Agreement.
“Guarantee
Payments”
means
the following payments or distributions, without duplication, with respect
to
the Preferred Securities, to the extent not paid or made on behalf of the
Trust:
(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 Trust shall have funds on hand legally and immediately available
therefor, (ii) the redemption price, including all accumulated and unpaid
Distributions to the date of redemption (the “Redemption
Price”)
to the
extent the Trust has funds on hand legally and immediately available therefor,
with respect to any Preferred Securities called for redemption by the Trust,
and
(iii) upon a voluntary or involuntary dissolution, winding-up or
termination of the Trust (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 Trust shall have funds on hand
legally
and immediately available therefor, and (b) the amount of assets of the
Trust remaining available for distribution to Holders in liquidation of
the
Trust after satisfaction of liabilities to creditors of the Trust as required
by
applicable law (in either case, the “Liquidation
Distribution”).
-2-
“Guarantee
Trustee”
means
The Bank of New York, solely in its capacity as guarantee trustee under
this
Guarantee Agreement and not in its individual capacity, until a successor
Guarantee Trustee shall have become such pursuant to the applicable provisions
of this Guarantee Agreement, and, thereafter “Guarantee Trustee” shall mean or
include each Person who is then a Guarantee Trustee hereunder.
“Holder”
shall
mean any holder, as registered on the books and records of the Trust, 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 ________ __, ____, between the Guarantor and
The Bank
of New York not in its individual capacity but solely as trustee, and any
indenture supplemental thereto pursuant to which the Debentures are to
be
issued.
“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 of more than 50% of the aggregate
Liquidation Amount 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 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 Guarantee Agreement (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
-3-
(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 trust
securities (if any) to be issued by other trusts to be established by the
Company (if any).
“Person”
means
any individual, corporation, limited liability company, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof, or any other
entity.
“Responsible
Officer,”
when
used with respect to the Guarantee Trustee, means any vice president (whether
or
not designated by a number or a word or words added before or after the
title
“vice president”), any assistant secretary, any senior trust officer or trust
office, or any other 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.
“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.
ARTICLE
II
TRUST
INDENTURE ACT
Section
2.1 Trust
Indenture Act; Application. (a) This
Guarantee Agreement 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 Guarantee Agreement limits, qualifies
or
conflicts with the deemed duties imposed by Sections 310 to 317, inclusive,
of the Trust Indenture Act, such deemed imposed duties shall
control.
Section
2.2 Lists
of Holders of Securities. (a) The
Guarantor shall furnish or cause to be furnished to 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.
-4-
(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.
Within
60
days after May 15 in each year, 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.
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 of the Trust
Indenture Act, such compliance certificate to be delivered within 60 days
after
May 15 in each year.
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 Guarantee 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 may be given in
the form of an Officers’ Certificate.
Section
2.6 Guarantee
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 Guarantee Event of Default and its
consequences. Upon such waiver, any such Guarantee Event of Default shall
cease
to exist, and shall be deemed to have been cured, for every purpose of
this
Guarantee Agreement, but no such waiver shall extend to any subsequent
or other
default or Guarantee Event of Default or impair any right consequent
therefrom.
Section
2.7 Events
of Default; Notice. (a) The
Guarantee Trustee shall, within 60 days after the occurrence of a Guarantee
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.
-5-
(b) The
Guarantee Trustee shall not be deemed to have knowledge of any Guarantee
Event
of Default unless the Guarantee Trustee shall have received 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
Guarantee Agreement relating to a Bear Xxxxxxx Trust (as defined in the
Indenture and the Existing Indenture) between the Guarantor and The Bank
of New
York as guarantee trustee; any Amended and Restated Trust Agreement relating
to
a Bear Xxxxxxx Trust among the Guarantor, as depositor, The Bank of New
York, as
property trustee, The Bank of New York (Delaware), as Delaware trustee,
the
administrative trustees named therein and the several holders 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 Guarantee Agreement 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
Guarantee Agreement 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 Guarantee Agreement 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
a
Guarantee Event of Default actually known to a Responsible Officer of the
Guarantee Trustee has occurred and is continuing, the Guarantee Trustee
shall
enforce this Guarantee Agreement for the benefit of the Holders of the
Preferred
Securities.
(c) The
Guarantee Trustee, before the occurrence of any Guarantee Event of Default
and
after the curing or waiver of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth
in
this Guarantee Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Guarantee Trustee. In case a Guarantee
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
Guarantee Agreement, 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.
-6-
(d) No
provision of this Guarantee Agreement 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 Guarantee 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 Guarantee Agreement, and the Guarantee Trustee
shall not be liable except for the performance of such duties and obligations
as
are specifically set forth in this Guarantee Agreement, and no implied
covenants
or obligations shall be read into this Guarantee Agreement 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 Guarantee
Agreement; but in the case of any such certificates or opinions that by
any
provision hereof or the Trust Indenture Act 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 Guarantee Agreement;
(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 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 Guarantee Agreement;
and
(iv) no
provision of this Guarantee Agreement 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 or liability is not reasonably assured
to it
under the terms of this Guarantee Agreement or indemnity, reasonably
satisfactory to the Guarantee Trustee, against such risk or liability is
not
reasonably assured to it.
-7-
Section
3.2 Certain
Rights of Guarantee Trustee. (a) Subject
to the provisions of Section 3.1:
(i) The
Guarantee Trustee may 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 reasonably believed
by it to
be genuine and to have been signed, sent or presented by the proper party
or
parties.
(ii) Any
direction or act of the Guarantor contemplated by this Guarantee Agreement
shall
be sufficiently evidenced by an Officers’ Certificate.
(iii) Whenever,
in the administration of this Guarantee Agreement, 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 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 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 Guarantee Agreement 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 a Guarantee
Event
of Default, of its obligation to exercise the rights and powers vested
in it by
this Guarantee Agreement.
(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.
-8-
(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, 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 Guarantee Agreement 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 written 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 written
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 believed by it to be authorized or
within
the discretion or rights or powers conferred upon it by this Guarantee
Agreement.
(b) No
provision of this Guarantee Agreement 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 Guarantee Agreement.
The
recitals contained in this Guarantee Agreement 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 Guarantee Agreement; it shall not be responsible
for the Guarantor’s performance hereunder or the Guarantor’s representations and
warranties.
Section
3.4 Compensation;
Indemnity; Fees. The
Guarantor agrees:
(a) to
pay to
the Guarantee Trustee from time to time such compensation for all services
rendered by it hereunder as may be agreed by the Guarantor and the Guarantee
Trustee from time to time (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 Guarantee Trustee
upon
request for all expenses, disbursements and advances incurred or made by
the
Guarantee Trustee in accordance with any provision of this Guarantee Agreement
(including the compensation and the expenses and disbursements of its agents
and
counsel), except any such expense, disbursement or advance as shall be
determined to have been caused by its own negligence or bad faith; and
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(c) to
indemnify the Guarantee Trustee, any Affiliate of the Guarantee Trustee
and any
officer, director, shareholder, employee, representative or agent of the
Guarantee Trustee (each, an “Indemnified Person”) for, and to hold each
Indemnified Person harmless against, any loss, liability, claim, action,
suit,
cost, damage or expense of any kind or nature whatsoever incurred without
negligence, willful misconduct or bad faith on the part of the Indemnified
Person, arising out of or in connection with the acceptance or administration
of
this Guarantee Agreement, 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.
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 Guarantee Agreement.
The
provisions of this Section 3.4 shall survive the termination of this Guarantee
Agreement or the resignation or removal of the Guarantee Trustee.
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
Person organized and doing business under the laws of the United States
of
America or any State or Territory thereof or of the District of 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 provided, no Guarantee Event
of
Default has occurred and is continuing.
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(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 hereunder 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.
(e) No
Guarantee Trustee shall be liable for the acts or omissions to act of any
Successor Guarantee Trustee.
(f) Upon
termination of this Guarantee Agreement 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 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
Trust), as and when due, regardless of any defense, right of set-off or
counterclaim that the Trust may have or assert. 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 Trust to pay
such
amounts to the Holders.
Section
5.2 Waiver
of Notice and Demand.
The
Guarantor hereby waives notice of acceptance of this Guarantee Agreement
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 Trust
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.
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Section
5.3 Obligations
Not Affected.
The
obligations, covenants, agreements and duties of the Guarantor under this
Guarantee Agreement 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 Trust of any express or implied agreement, covenant,
term or
condition relating to the Preferred Securities to be performed or observed
by
the Trust;
(b) the
extension of time for the payment by the Trust 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 period on 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 Trust 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 Trust or any of the assets of the
Trust;
(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 Guarantee
Agreement or exercising any trust or power conferred upon the Guarantee
Trustee
under this Guarantee Agreement; 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 be illegal or
expose
the Guarantee Trustee to personal liability.
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(b) Any
Holder of Preferred Securities may institute a legal proceeding directly
against
the Guarantor to enforce its rights under this Guarantee Agreement, without
first instituting a legal proceeding against the Trust, the Guarantee Trustee
or
any other Person. The Guarantor waives any right or remedy to require that
any
such action be brought first against the Trust or any other Person before
so
proceeding directly against the Guarantor.
(c) The
Guarantor expressly acknowledges that (i) this Guarantee Agreement 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 Guarantee
Agreement on behalf of the Holders.
Section
5.5 Guarantee
of Payment.
This
Guarantee Agreement creates a guarantee of payment and not of collection.
This
Guarantee Agreement will not be discharged except by payment of the Guarantee
Payments in full (without duplication of amounts theretofore paid by the
Trust)
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 Trust in respect of any amounts paid to such Holders
by
the Guarantor under this Guarantee Agreement; 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 Guarantee Agreement, if, at the time
of any
such payment, any amounts are due and unpaid under this Guarantee Agreement.
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 Trust 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 Guarantee Agreement 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 Guarantee
Agreement by written instrument in form satisfactory to the Guarantee Trustee,
(ii) immediately after giving effect thereto, no Guarantee Event of Default
under this Guarantee Agreement, and no event which, after notice or lapse
of
time or both, would become a Guarantee Event of Default under this Guarantee
Agreement, 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.
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The
Guarantor shall deliver under this Section 5.8 to the Guarantee Trustee
prior to
the consummation of the proposed transaction an Officer’s Certificate and an
Opinion of Counsel (which may rely on such Officer’s Certificate as to the
absence of defaults and Events of Default) stating that the proposed transaction
will comply with this Guarantee Agreement and that all conditions precedent
set
forth in this Guarantee Agreement relating to such transaction have been
satisfied.
ARTICLE
VI
COVENANTS
AND SUBORDINATION
Section
6.1 Subordination. The
obligations of the Guarantor under this Guarantee Agreement will constitute
unsecured obligations of the Guarantor and will rank subordinate and junior
in
right of payment and upon liquidation to all Senior Debt of the Guarantor
to the
extent and in the manner set forth in the Indenture with respect to the
Debentures (as defined therein), and the provisions of Article XIV of the
Indenture will apply, mutatis mutandis, to the obligations of the Guarantor
hereunder. The obligations of the Guarantor hereunder do not constitute
Senior
Debt of the Guarantor.
Section
6.2 Pari
Passu Guarantees. The
obligations of the Guarantor under this Guarantee Agreement shall rank
pari
passu with the obligations of the Guarantor under (i) any similar guarantee
agreements issued by the Guarantor on behalf of the holders of preferred
or
capital securities issued by any statutory trust the assets of which consist
of
debt securities that are pari passu to the Debentures and the proceeds
thereof,
(ii) the Indenture and the Debt Securities (as defined therein) issued
thereunder, and (iii) any other security, guarantee or other agreement
or
obligation that is expressly stated to rank pari passu with the obligations
of
the Guarantor under this Guarantee Agreement or with any obligation that
ranks
pari passu with the obligations of the Guarantor under this Guarantee
Agreement.
ARTICLE
VII
TERMINATION
Section
7.1 Termination.
This
Guarantee Agreement 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 liquidation of the Trust.
Notwithstanding the foregoing, this Guarantee Agreement 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 Guarantee Agreement.
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ARTICLE
VIII
MISCELLANEOUS
Section
8.1 Successors
and Assigns.
All
guarantees and agreements contained in this Guarantee Agreement 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
Guarantee Agreement, the Guarantor may not assign its rights or delegate
its
obligations under this Guarantee Agreement without the prior approval of
the
Holders of at least a Majority in Liquidation Amount of the Preferred
Securities.
Section
8.2 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 Guarantee Agreement 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
8.3 Notices.
All
notices provided for in this Guarantee Agreement 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:
(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
Bank
of New York
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Corporate Finance Group
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(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
Xxxxxxx Companies Inc.
0000
Xxxxxxx Xxx
Xxx
Xxxx,
XX 00000
Attention:
Corporate Secretary
(c) If
given
to any Holder of Preferred Securities, at the address set forth on the
books and
records of the Trust.
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
8.4 Benefit.
This
Guarantee Agreement 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
8.5 Governing
Law.
THIS
GUARANTEE AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE GUARANTOR
AND
THE GUARANTEE TRUSTEE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT
OF LAWS PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW).
Section
8.6 Counterparts.
This
instrument may be executed in any number of counterparts, each of which
so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
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This
Guarantee Agreement is executed as of the day and year first above
written.
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THE
BEAR XXXXXXX COMPANIES INC.,
as
Guarantor
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Name: Title:
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THE
BANK OF NEW YORK
as
Guarantee Trustee
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Name: Title:
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