EXHIBIT 4.7
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CAPITAL SECURITIES GUARANTEE AGREEMENT
Bear Xxxxxxx Capital Trust I
Dated as of January 29, 1997
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CROSS-REFERENCE TABLE(1)
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Section of Trust Indenture Section of Capital Securities
Act of 1939, as amended Guarantee Agreement
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310(a) . . . . . . . . . . . 4.1(a)
310(b) . . . . . . . . . . . 4.1(c)
310(c) . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . 2.2(a)
311(b) . . . . . . . . . . . 2.2(b)
311(c) . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . 2.2(a)
312(b) . . . . . . . . . . . 2.2(b)
313 . . . . . . . . . . . . . 2.3
314(a) . . . . . . . . . . . 2.4
314(b) . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . 2.5
314(d) . . . . . . . . . . . Inapplicable
314(f) . . . . . . . . . . . Inapplicable
315(a) . . . . . . . . . . . 3.1(b)
315(b) . . . . . . . . . . . 2.7
315(c) . . . . . . . . . . . 3.1(a)
315(d) . . . . . . . . . . . 3.1(a)
316(a) . . . . . . . . . . . 5.4(a), 2.6
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(1) This Cross-Reference Table does not constitute part of
this Guarantee Agreement and shall not affect the interpretation
of any of its terms or provisions.
TABLE OF CONTENTS
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Page
CROSS-REFERENCE TABLE . . . . . . . . . . . . . . . . . . . . . . i
ARTICLE I
DEFINITIONS AND INTERPRETATION . . . . . . . 2
SECTION 1.1 Definitions and Interpretation . . . . . . . . . . . . 2
ARTICLE II
TRUST INDENTURE ACT . . . . . . . . . . . 6
SECTION 2.1 Trust Indenture Act; Application . . . . . . . . . . . 6
SECTION 2.2 Lists of Holders of Securities . . . . . . . . . . . . 6
SECTION 2.3 Reports by the Guarantee Trustee . . . . . . . . . . . 6
SECTION 2.4 Periodic Reports to Guarantee Trustee . . . . . . . . 7
SECTION 2.5 Evidence of Compliance with Conditions Precedent . . . 7
SECTION 2.6 Events of Default; Waiver . . . . . . . . . . . . . . 7
SECTION 2.7 Events of Default; Notice . . . . . . . . . . . . . . 7
SECTION 2.8 Conflicting Interests . . . . . . . . . . . . . . . . 8
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee . . . . . . 8
SECTION 3.2 Certain Rights of Guarantee Trustee . . . . . . . . 11
SECTION 3.3 Not Responsible for Recitals or Issuance of Capital
Securities Guarantee . . . . . . . . . . . . . . . . 13
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility . . . . . . . . . . . 13
SECTION 4.2 Appointment, Removal and Resignation
of Guarantee Trustee . . . . . . . . . . . 14
ARTICLE V
GUARANTEE
SECTION 5.1 Capital Securities Guarantee . . . . . . . . . . . . 15
SECTION 5.2 Waiver of Notice and Demand . . . . . . . . . . . . 15
SECTION 5.3 Obligations Not Affected . . . . . . . . . . . . . . 16
SECTION 5.4 Rights of Holders . . . . . . . . . . . . . . . . . 17
SECTION 5.5 Guarantee of Payment . . . . . . . . . . . . . . . . 18
SECTION 5.6 Subrogation . . . . . . . . . . . . . . . . . . . . 18
SECTION 5.7 Independent Obligations . . . . . . . . . . . . . . 18
SECTION 5.8 Consolidation, Merger, Sale of Assets and Other
Transactions . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VI
SUBORDINATION
SECTION 6.1 Ranking . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VII
TERMINATION
SECTION 7.1 Termination . . . . . . . . . . . . . . . . . . . . 20
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation . . . . . . . . . . . . . . . . . . . . 20
SECTION 8.2 Indemnification . . . . . . . . . . . . . . . . . . 21
SECTION 8.3 Compensation; Reimbursement of Expenses . . . . . . 21
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns . . . . . . . . . . . . . . . 21
SECTION 9.2 Amendments . . . . . . . . . . . . . . . . . . . . . 22
SECTION 9.3 Notices . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 9.4 Benefit . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 9.5 Governing Law . . . . . . . . . . . . . . . . . . . 23
GUARANTEE AGREEMENT
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This GUARANTEE AGREEMENT (the "Capital Securities
Guarantee"), dated as of January 29, 1997, is executed and delivered
by The Bear Xxxxxxx Companies Inc., a Delaware corporation (the
"Guarantor"), and The Chase Manhattan Bank, a New York State banking
corporation, as trustee (the "Guarantee Trustee"), for the benefit of
the Holders (as defined herein) from time to time of the Capital
Securities (as defined herein) of Bear Xxxxxxx Capital Trust I, a
Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement
(the "Trust Agreement"), dated as of January 29, 1997, among the
trustees named therein of the Issuer, the administrators named
therein, The Bear Xxxxxxx Companies Inc., as sponsor, and the holders
from time to time of undivided beneficial interests in the assets of
the Issuer, the Issuer is issuing on the date hereof securities,
having an aggregate liquidation amount of up to $200,000,000,
designated the Fixed/Adjustable Rate Capital Securities (the "Initial
Capital Securities") and may issue in the future, pursuant to the
Registration Rights Agreement (as defined in the Trust Agreement)
securities solely to be exchanged for Initial Capital Securities, with
terms that are substantially identical to those of the Initial Capital
Securities (the "Exchange Capital Securities" and together with the
Initial Capital Securities, the "Capital Securities");
WHEREAS, as incentive for the Holders to purchase the
Capital Securities, the Guarantor desires irrevocably and
unconditionally to agree, to the extent set forth in this Capital
Securities Guarantee, to pay to the Holders of Capital Securities the
Guarantee Payments (as defined herein) and to make certain other
payments on the terms and conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a
guarantee agreement (the "Common Securities Guarantee") in similar
terms to this Capital Securities Guarantee for the benefit of the
holders of the Common Securities (as defined in the Trust Agreement)
of the Issuer, except that if an Event of Default (as defined in the
Trust Agreement), has occurred and is continuing, the rights of
holders of the Common Securities to receive Guarantee Payments under
the Common Securities Guarantee are subordinated to the rights of
Holders of Capital Securities to receive Guarantee Payments under this
Capital Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each
Holder of Capital Securities, which purchase the Guarantor hereby
agrees shall benefit the Guarantor, the Guarantor executes and
delivers this Capital Securities Guarantee for the benefit of the
Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
------------------------------
In this Capital Securities Guarantee, unless the context
otherwise requires:
(a) capitalized terms used in this Capital Securities
Guarantee but not defined in the preamble above have the
respective meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Capital Securities
Guarantee has the same meaning throughout;
(c) all references to "the Capital Securities Guarantee" or
"this Capital Securities Guarantee" are to this Capital
Securities Guarantee as modified, supplemented or amended from
time to time;
(d) all references in this Capital Securities Guarantee to
Articles and Sections are to Articles and Sections of this
Capital Securities Guarantee, unless otherwise specified;
(e) terms defined in the Trust Agreement as at the date of
execution of this Capital Securities Guarantee or in the Trust
Indenture Act as the case may be, have the same meanings when
used in this Capital Securities Guarantee, unless otherwise
defined in this Capital Securities Guarantee or unless the
context otherwise requires; and
(f) a reference to the singular includes the plural and
vice versa.
"Corporate Trust Office" means the office of the Guarantee
Trustee at which the corporate trust business of the Guarantee Trustee
shall, at any particular time, be principally administered, which
office at the date of execution of this Guarantee Agreement is located
at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Covered Person" means any Holder or beneficial owner of
Capital Securities.
"Debentures" means the junior subordinated debentures of The
Bear Xxxxxxx Companies Inc. designated the Fixed/Adjustable Rate
Junior Subordinated Deferrable Interest Debentures due January 15,
2027, held by the Property Trustee (as defined in the Trust Agreement)
of the Issuer.
"EPICS Loan Agreement" means the loan agreement dated as of
February 24, 1994 between the Company and Bear Xxxxxxx Finance LLC in
the aggregate principal amount of $189,875,000.
"Event of Default" means a default by the Guarantor on any
of its payment or other obligations under this Capital Securities
Guarantee.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Capital
Securities, to the extent not paid or made by the Issuer: (i) any
accumulated and unpaid Distributions (as defined in the Trust
Agreement) which are required to be paid on such Capital Securities to
the extent the Issuer shall have funds available therefor, (ii) the
redemption price, including all accumulated and unpaid Distributions
to the date of redemption (the "Redemption Price") to the extent the
Issuer has funds available therefor, with respect to any Capital
Securities called for redemption by the Issuer, and (iii) upon a
voluntary or involuntary dissolution, winding-up or termination of the
Issuer (other than in connection with the distribution of Debentures
to the Holders in exchange for Capital 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 Capital
Securities to the date of payment, to the extent the Issuer shall have
funds available therefor, and (b) the amount of assets of the Issuer
remaining available for distribution to Holders in liquidation of the
Issuer (in either case, the "Liquidation Distribution").
"Guarantees" means the Common Securities Guarantee and this
Capital Securities Guarantee, collectively.
"Guarantee Trustee" means The Chase Manhattan Bank, a New
York State banking corporation, until a Successor Guarantee Trustee
has been appointed and has accepted such appointment pursuant to the
terms of this Capital Securities Guarantee and thereafter means each
such Successor Guarantee Trustee.
"Holder" shall mean any holder, as registered on the books
and records of the Issuer, of any Capital Securities; provided,
however, that, in determining whether the holders of the requisite
percentage of Capital 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 January 29,
1997, among the Guarantor and The Chase Manhattan Bank, not in its
individual capacity but solely as trustee, and any indenture
supplemental thereto pursuant to which the Debentures are to be issued
to the Property Trustee of the Issuer.
"Liquidation Distribution" has the meaning set forth in the
definition of "Guarantee Payments" herein.
"Majority in liquidation amount of the Capital Securities"
means, except as provided by the Trust Indenture Act, a vote by
Holder(s) of Capital Securities, voting together as a class, but
separately from the holders of Common Securities, of more than 50% of
the aggregate liquidation amount (including the stated amount that
would be paid on redemption, liquidation or otherwise, plus
accumulated and unpaid Distributions to the date upon which the voting
percentages are determined) of all Capital 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 Capital Securities
Guarantee (other than pursuant to Section 2.4) shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion
as to whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Other Guarantees" means all other guarantees (if any) to be
issued by the Company with respect to capital securities (if any) to
be issued by other trusts to be established by the Company (if any).
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint
stock company, limited liability company, trust, unincorporated
association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"Responsible Officer" means, with respect to the Guarantee
Trustee, any officer within the Corporate Trust Office of the
Guarantee Trustee, including any vice president, any assistant vice
president, any assistant secretary, the treasurer, any assistant
treasurer, any trust officer, any senior trust officer, or other
officer of the Corporate Trust Office of the Guarantee Trustee
customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such
matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"Successor Guarantee Trustee" means a successor Guarantee
Trustee possessing the qualifications to act as Guarantee Trustee
under Section 4.1.
"Trust Event of Default" means an "Event of Default" as
defined in the Trust Agreement.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trust Securities" means the Common Securities and the
Capital Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
--------------------------------
(a) This Capital Securities Guarantee is subject to the
provisions of the Trust Indenture Act that would be required to
be part of this Capital Securities Guarantee if this Capital
Securities Guarantee were qualified under 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 Capital
Securities Guarantee limits, qualifies or conflicts with the
duties imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
SECTION 2.2 Lists of Holders of Securities
------------------------------
(a) The Guarantor shall provide the Guarantee Trustee (i)
within 5 ("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 Capital Securities ("List of Holders") as of such record
date, provided that the Guarantor shall not be obligated to
provide such List of Holders at any time the List of Holders does
not differ from the most recent List of Holders given to the
Guarantee Trustee by the Guarantor, and (ii) at any other time
within 30 days of receipt by the Guarantor of a written request
for a List of Holders, which List of Holders shall be as of a
date no more than 14 days before such List of Holders is given to
the Guarantee Trustee. The Guarantee Trustee may destroy any
List of Holders previously given to it on receipt of a new List
of Holders.
(b) The Guarantee Trustee shall comply with its obligations
under Sections 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the Guarantee Trustee
--------------------------------
Within 60 days after November 15 of each year, the Guarantee
Trustee shall provide to the Holders of the Capital Securities such
reports dated as of such November 15 as are required by Section 313(a)
of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Guarantee
Trustee shall also comply with the requirements of Section 313 (d) of
the Trust Indenture Act. The Guarantor will notify the Guarantee
Trustee if and when any Capital Securities are listed on any stock
exchange.
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 annually on or before September 15 of each
year beginning in 1997.
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 Capital Securities Guarantee that relate to any of the matters
set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) may be given in the form of an Officers'
Certificate.
SECTION 2.6 Events of Default; Waiver
-------------------------
The Holders of a Majority in liquidation amount of Capital
Securities may, voting or consenting as a class, on behalf of the
Holders of all of the Capital Securities, waive any past Event of
Default and its consequences. Upon such waiver, any such Event of
Default shall cease to exist, and shall be deemed to have been cured,
for every purpose of this Capital Securities Guarantee, but no such
waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent therefrom.
SECTION 2.7 Events of Default; Notice
-------------------------
(a) The Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class
postage prepaid, to the Holders of the Capital 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 Capital Securities.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Guarantee Trustee
shall have received written notice thereof from the Guarantor or
a Holder, or a Responsible Officer of the Guarantee Trustee
charged with the administration of this Capital Securities
Guarantee shall have obtained written notice thereof.
SECTION 2.8 Conflicting Interests
---------------------
The Indenture, the Debentures and the Securities (each as
defined therein) issued or to be issued thereunder and the Trust
Agreement and the Trust Securities issued or to be issued thereunder
shall be deemed to be specifically described in this Capital
Securities Guarantee for the purposes of clause (i) of the proviso
contained in Section 310(b)(l) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee
------------------------------------------
(a) This Capital Securities Guarantee shall be held by the
Guarantee Trustee for the benefit of the Holders of the Capital
Securities, and the Guarantee Trustee shall not transfer this
Capital Securities Guarantee to any Person except a Holder of
Capital Securities exercising his or her rights pursuant to
Section 5.4(b) or to a Successor Guarantee Trustee on acceptance
by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of
the Guarantee Trustee shall automatically vest in any Successor
Guarantee Trustee, upon acceptance by such Successor Guarantee
Trustee of its appointment hereunder, and such vesting and
cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible
Officer of the Guarantee Trustee has occurred and is continuing,
the Guarantee Trustee shall enforce this Capital Securities
Guarantee for the benefit of the Holders of the Capital
Securities.
(c) The Guarantee Trustee, before the occurrence of any
Event of Default and after the curing of all Events of Default
that may have occurred, shall undertake to perform only such
duties as are specifically set forth in this Capital Securities
Guarantee, and no implied covenants shall be read into this
Capital Securities Guarantee against the Guarantee Trustee. In
case an Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.6) and is actually known to a
Responsible Officer of the Guarantee Trustee, the Guarantee
Trustee shall exercise
such of the rights and powers vested in it by this Capital
Securities Guarantee, and use the same degree of care and skill
in its exercise thereof, as a prudent person
would exercise or use under the circumstances in the conduct of
his or her own affairs.
(d) No provision of this Capital Securities Guarantee shall
be construed to relieve the Guarantee Trustee from liability for
its own negligent action, its own negligent failure to act, or
its own willful misconduct, except that:
(i) prior to the occurrence of any Event of
Default and after the curing or waiving of all such
Events of Default that may have occurred:
(A) the duties and obligations of the
Guarantee Trustee shall be determined solely by
the express provisions of this Capital Securities
Guarantee, and the Guarantee Trustee shall not be
liable except for the performance of such duties
and obligations as are specifically set forth in
this Capital Securities Guarantee, and no implied
covenants or obligations shall be read into this
Capital Securities Guarantee against the Guarantee
Trustee; and
(B) in the absence of bad faith on the part
of the Guarantee Trustee, the Guarantee Trustee
may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and
conforming to the requirements of this Capital
Securities Guarantee; but in the case of any such
certificates or opinions that by any provision
hereof are specifically required to be furnished
to the Guarantee Trustee, the Guarantee Trustee
shall be under a duty to examine the same to
determine whether or not they conform to the
requirements of this Capital Securities Guarantee;
(ii) the Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a
Responsible Officer of the Guarantee Trustee, unless it
shall be proved that such Responsible Officer of the
Guarantee Trustee or the Guarantee Trustee was
negligent in ascertaining the pertinent facts upon
which such judgement 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 Capital 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 Capital Securities
Guarantee; and
(iv) no provision of this Capital Securities
Guarantee shall require the Guarantee Trustee to expend
or risk its own funds or otherwise incur personal
financial liability in the performance of any of its
duties or in the exercise of any of its rights or
powers, if the Guarantee Trustee shall have reasonable
grounds for believing that the repayment of such funds
is not reasonably assured to it under the terms of this
Capital Securities Guarantee or indemnity, reasonably
satisfactory to the Guarantee Trustee, against such
risk or liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of Guarantee Trustee
-----------------------------------
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely,
and shall be fully protected in acting or refraining
from acting upon, any resolution, certificate,
statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been
signed, sent or presented by the proper party or
parties.
(ii) Any direction or act of the Guarantor
contemplated by this Capital Securities Guarantee shall
be sufficiently evidenced by an Officers' Certificate.
(iii) Whenever, in the administration of this
Capital Securities Guarantee, the Guarantee Trustee
shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any
action hereunder, the Guarantee Trustee (unless other
evidence is herein specifically prescribed) may, in the
absence of bad faith on its part,
request and conclusively rely upon an Officers'
Certificate which, upon receipt of such request, shall
be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee shall have no duty to
see to any recording, filing or registration of any
instrument (or any rerecording, refiling or
registration thereof).
(v) The Guarantee Trustee may consult with
counsel of its selection, and the written advice or
opinion of such counsel with respect to legal matters
shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with such
advice or opinion. Such counsel may be counsel to the
Guarantor or any of its Affiliates and may include any
of its employees. The Guarantee Trustee shall have the
right at any time to seek instructions concerning the
administration of this Guarantee from any court of
competent jurisdiction.
(vi) The Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers
vested in it by this Capital Securities Guarantee at
the request or direction of any Holder, unless such
Holder shall have provided to the Guarantee Trustee
such security and indemnity, reasonably satisfactory to
the Guarantee Trustee, against the costs, expenses
(including attorneys' fees and expenses and the
expenses of the Guarantee Trustee's agents, nominees or
custodians) and liabilities that might be incurred by
it in complying with such request or direction,
including such reasonable advances as may be requested
by the Guarantee Trustee; provided, however, that
nothing contained in this Section 3.2(a) (vi) shall be
taken to relieve the Guarantee Trustee, upon the
occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this
Capital Securities Guarantee.
(vii) The Guarantee Trustee shall not be bound to
make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the
Guarantee Trustee, in its discretion, may make such
further inquiry or investigation into such facts or
matters as it may see fit.
(viii) The Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents,
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
Capital Securities Guarantee the Guarantee Trustee
shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any
other action hereunder, the Guarantee Trustee (i) may
request instructions from the Holders of a Majority in
liquidation amount of the Capital Securities, (ii) may
refrain from enforcing such remedy or right or taking
such other action until such instructions are received,
and (iii) shall be protected in conclusively relying on
or acting in accordance with such instructions.
(x) The Guarantee Trustee shall not be liable for
any action taken, suffered, or omitted to be taken by
it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers
conferred upon it by this Capital Securities Guarantee.
(b) No provision of this Capital Securities Guarantee shall
be deemed to impose any duty or obligation on 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 Capital
---------------------------------------------------
Securities Guarantee
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The recitals contained in this Capital Securities Guarantee
shall be taken as the statements of the Guarantor, and the Guarantee
Trustee does not assume any responsibility for their correctness. The
Guarantee Trustee makes no representation as to the validity or
sufficiency of this Capital Securities Guarantee.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility
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(a) There shall at all times be a Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business
under the laws of the United States of America or any
State or Territory thereof or of the District of
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 50 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
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(a) Subject to Section 4.2(b), the Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor
except during an Event of Default.
(b) The Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Guarantee Trustee
and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold
office until a Successor Guarantee Trustee shall have been
appointed or until its removal or resignation. The Guarantee
Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by
the Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by
an instrument in writing executed by such Successor Guarantee
Trustee and delivered to the Guarantor and the resigning
Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section
4.2 within 60 days after delivery of an instrument of removal or
resignation, the Guarantee Trustee resigning or being removed may
petition any court of competent jurisdiction for appointment of a
Successor Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a
Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Guarantee Trustee.
(f) Upon termination of this Capital Securities Guarantee
or removal or resignation of the Guarantee Trustee pursuant to
this Section 4.2, the Guarantor shall pay to the Guarantee
Trustee all amounts owing to the Guarantee Trustee under Sections
8.2 and 8.3 accrued to the date of such termination, removal or
resignation.
ARTICLE V
GUARANTEE
SECTION 5.1 Capital Securities Guarantee
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The Guarantor irrevocably and unconditionally agrees to pay
in full to the Holders the Guarantee Payments (without duplication of
amounts theretofore paid by the Issuer), as and when due, regardless
of any defense, right of set-off or counterclaim that the Issuer may
have or assert. Such obligations will not be discharged except by
payment of the Guarantee Payments in full. The Guarantor's obligation
to make a Guarantee Payment may
be satisfied by direct payment of the required amounts by the
Guarantor to the Holders or by causing the Issuer to pay such amounts
to the Holders.
SECTION 5.2 Waiver of Notice and Demand
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The Guarantor hereby waives notice of acceptance of this
Capital Securities Guarantee and of any liability to which it applies
or may apply, presentment, demand for payment, any right to require a
proceeding first against the Guarantee Trustee, the Issuer or any
other Person before proceeding against the Guarantor, protest, notice
of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 5.3 Obligations Not Affected
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The obligations, covenants, agreements and duties of the
Guarantor under this Capital Securities Guarantee shall in no way be
affected or impaired by reason of the happening from time to time of
any of the following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Issuer of any
express or implied agreement, covenant, term or condition
relating to the Capital Securities to be performed or observed by
the Issuer;
(b) the extension of time for the payment by the Issuer of
all or any portion of the Distributions, Redemption Price,
Liquidation Distribution or any other sums payable under the
terms of the Capital Securities or the extension of time for the
performance of any other obligation under, arising out of, or in
connection with, the Capital 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 or
any extension of the maturity date of the Debentures permitted by
the Indenture);
(c) any failure, omission, delay or lack of diligence on
the part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to
the terms of the Capital Securities, or any action on the part of
the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Issuer or any of the assets of
the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Capital 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
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(a) The Holders of a Majority in liquidation amount of the
Capital 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 Capital Securities
Guarantee or exercising any trust or power conferred upon the
Guarantee Trustee under this Capital Securities Guarantee;
provided however, that (subject to Section 3.1) the Guarantee
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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 proceeding
so directed may not lawfully be taken or if the Guarantor Trustee
in good faith by its board of directors or trustees, executive
committees or a trust committee of directors or trustees and/or
Responsible Officers shall determine that the action or
proceedings so directed would involve the Guarantee Trustee in
personal liability.
(b) Any Holder of Capital Securities may institute a legal
proceeding directly against the Guarantor to enforce its rights
under this Capital Securities Guarantee, without first
instituting a legal proceeding against the Issuer, the Guarantee
Trustee or any other Person. The Guarantor waives any right or
remedy to require that any such action be brought first against
the Issuer or any other Person before so proceeding directly
against the Guarantor.
(c) The Guarantor expressly acknowledges that (i) this
Capital Securities Guarantee will be deposited with the Guarantee
Trustee to be held for the benefit of the Holders; (ii) the
Guarantee Trustee has the right to enforce this Capital
Securities Guarantee on behalf of the Holders.
SECTION 5.5 Guarantee of Payment
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This Capital Securities Guarantee creates a guarantee of
payment and not of collection. This Capital Securities Guarantee will
not be discharged except by payment of the Guarantee Payments in full
(without duplication of amounts theretofore paid by the Issuer) or
upon distribution of Debentures to Holders as provided in the Trust
Agreement.
SECTION 5.6 Subrogation
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The Guarantor shall be subrogated to all (if any) rights of
the Holders of Capital Securities against the Issuer in respect of any
amounts paid to such Holders by the Guarantor under this Capital
Securities Guarantee; provided, however, that the Guarantor shall not
(except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any right that it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in
all cases as a result of payment under this Capital Securities
Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Capital Securities Guarantee. If any amount
shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and
to pay over such amount to the Holders.
SECTION 5.7 Independent Obligations
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The Guarantor acknowledges that its obligations hereunder
are independent of the obligations of the Issuer with respect to the
Capital Securities and that the Guarantor shall be liable as principal
and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Capital Securities Guarantee notwithstanding the
occurrence of any event referred to in subsections (a) through (g),
inclusive, of Section 5.3 hereof.
SECTION 5.8 Consolidation, Merger, Sale of Assets and Other
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Transactions
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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 Capital Securities Guarantee by written
instrument in form satisfactory to the Guarantee Trustee, (ii)
immediately after giving effect thereto, no Event of Default under
this Capital Securities Guarantee, and no event which, after notice or
lapse of time or both, would become an
Event of Default under this Capital Securities Guarantee, shall have
occurred and be continuing, and (iii) such consolidation, merger,
conveyance, transfer or lease shall be permitted under the Trust
Agreement and the Indenture and does not give rise to any breach or
violation of the Trust Agreement or Indenture.
ARTICLE VI
SUBORDINATION
SECTION 6.1 Ranking
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This Capital Securities Guarantee will constitute an
unsecured obligation of the Guarantor and will rank subordinate and
junior in right of payment to all present and future Senior
Indebtedness (as defined in the Indenture) of the Guarantor. This
Capital Securities Guarantee will rank pari passu with all Other
Guarantees. By their acceptance thereof, each Holder of Capital
Securities agrees to the foregoing provisions of this Capital
Securities Guarantee and the other terms set forth herein.
If a Trust Event of Default has occurred and is continuing,
the rights of holders of the Common Securities of the Issuer to
receive payments under the Common Securities Guarantee are
subordinated to the rights of Holders of Capital Securities to receive
Guarantee Payments.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
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This Capital Securities Guarantee shall terminate, subject
to Sections 8.2 and 8.3, (i) upon full payment of the Redemption Price
of all Capital Securities, (ii) upon the distribution of the
Debentures to the Holders of all of the Capital Securities or (iii)
upon full payment of the amounts payable in accordance with the Trust
Agreement upon dissolution of the Issuer. Notwithstanding the
foregoing, this Capital Securities Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time
any Holder of Capital Securities must restore payment of any sums paid
under the Capital Securities or under this Capital Securities
Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation
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(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any
Covered Person for any loss, damage or claim incurred by reason
of any act or omission performed or omitted by such Indemnified
Person in good faith in accordance with this Capital Securities
Guarantee and in a manner that such Indemnified Person reasonably
believed to be within the scope of the authority conferred on
such Indemnified Person by this Capital Securities Guarantee or
by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified
Person's negligence or willful misconduct with respect to such
acts or omissions.
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Issuer or the
Guarantor and upon such information, opinions, reports or
statements presented to the Trust or the Guarantor by any Person
as to matters the Indemnified Person reasonably believes are
within such other Person's professional or expert competence and
who, if selected by such Indemnified Person, has been selected
with reasonable care by such Indemnified Person, including
information, opinions, reports or statements as to the value and
amount of the assets, liabilities, profits, losses, or any other
facts pertinent to the existence and amount of assets from which
Distributions to Holders of Capital Securities might properly be
paid.
SECTION 8.2 Indemnification
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The Guarantor agrees to indemnify each Indemnified Person
for, and to hold each Indemnified Person harmless against, any and all
loss, liability, damage, claim or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against, or investigating, any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder. The Guarantee Trustee will not claim or
exact any lien or charge on any Guarantee Payments as a result of any
amount due to it under this Guarantee Agreement. The obligation to
indemnify as set forth in this Section 8.2 shall survive the
termination of this Capital Securities Guarantee.
SECTION 8.3 Compensation; Reimbursement of Expenses
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The Guarantor agrees:
(a) to pay to the Guarantee Trustee from time to time
reasonable compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust); and
(b) except as otherwise expressly provided herein, to
reimburse the Guarantee Trustee upon request for all reasonable
expenses, disbursements and advances incurred or made by it in
accordance with any provision of this Capital Securities Guarantee
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith.
The provisions of this Section 8.3 shall survive the
termination of this Capital Securities Guarantee,
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
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All guarantees and agreements contained in this Capital
Securities Guarantee shall bind the successors, assigns, receivers,
trustees and representatives of the Guarantor and shall inure to the
benefit of the Holders of the Capital 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 Capital Securities Guarantee
without the prior approval of the Holders of at least a Majority in
liquidation amount of the Capital Securities.
SECTION 9.2 Amendments
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Except with respect to any changes that do not adversely
affect the rights of Holders of Capital Securities in any material
respect (in which case no consent of Holders will be required), this
Capital Securities Guarantee may only be amended with the prior
approval of the Holders of a least a Majority in liquidation amount of
the Capital Securities.
The provisions of the Trust Agreement with respect to amendments
thereof apply to the giving of such approval.
SECTION 9.3 Notices
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All notices provided for in this Capital Securities
Guarantee shall be in writing, duly signed by the party giving such
notice, and shall be delivered, telecopied or mailed by first class
mail, as follows:
(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
Capital Securities):
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trustee Administration
Department
(b) If given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor
may give notice of to the Holders of the Capital Securities and
to the Guarantee Trustee):
The Bear Xxxxxxx Companies Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx Xxxxx
(c) If given to any Holder of Capital Securities, at the
address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by
first class mail, postage prepaid except that if a notice or other
document is refused delivery or cannot be delivered because of a
changed address of which no notice was given, such notice or other
document shall be deemed to have been delivered on the date of such
refusal or inability to deliver.
SECTION 9.4 Benefit
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This Capital Securities Guarantee is solely for the benefit
of the Holders of the Capital Securities and, subject to Section
3.1(a), is not separately transferable from the Capital Securities.
SECTION 9.5 Governing Law
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THIS CAPITAL SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
This Capital Securities Guarantee is executed as of the day
and year first above written.
THE BEAR XXXXXXX COMPANIES, INC.
as Guarantor
By:/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
President and Chief Executive
Officer
THE CHASE MANHATTAN BANK,
as Guarantee Trustee
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Vice President
