EXHIBIT 4(c)(4)
CONFORMED COPY
Dated June 28, 2002
BEAR XXXXXXX GLOBAL ASSET HOLDINGS, LTD.
NOTE ISSUANCE AGREEMENT
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DEED OF COVENANT
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XXXXX & OVERY
New York
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DEED OF COVENANT
THIS DEED OF COVENANT is given by way of deed poll on June 28, 2002 by BEAR
XXXXXXX GLOBAL ASSET HOLDINGS, LTD. (the "Issuer") in favour of the account
holders specified below of Clearstream Banking, societe anonyme and Euroclear
Bank S.A./N.V., as operator of the Euroclear system and/or any other additional
clearing system or systems as are specified in the Pricing Supplement relating
to any Note (as defined below) (each a "Clearing System").
WHEREAS:
(A) The Issuer has entered into a Note Issuance Agreement dated June 24, 1997
and subsequently amended and restated on June 30, 2000 and as further
amended and restated on June 28, 2002 (the "Note Issuance Agreement",
which expression includes the same as it may be amended, restated or
supplemented from time to time) with, inter alios, the Dealers and the
Agents named therein under which the Issuer proposes from time to time to
issue Notes (the "Notes").
(B) The Bearer Notes will initially be represented by, and comprised in,
Temporary Bearer Global Notes (the "Temporary Global Notes") and
thereafter may be represented by, and comprised in, Permanent Bearer
Global Notes (the "Permanent Global Notes", the Temporary Global Notes and
Permanent Global Notes being herein together called the "Global Notes")
representing a certain number of underlying Bearer Notes (the "Underlying
Notes").
(C) Each Global Note may, after issue, be deposited with a depositary for one
or more Clearing Systems (each such Clearing System or all such Clearing
Systems together, the "Relevant Clearing System"). Upon such deposit of a
Global Note, the Underlying Notes represented by such Global Note will be
credited to a securities account or securities accounts with the Relevant
Clearing System. Any account holder with the Relevant Clearing System
which has Underlying Notes credited to its securities account from time to
time (each a "Relevant Account Holder") will, subject to and in accordance
with the terms and conditions and operating procedures or management
regulations of the Relevant Clearing System, be entitled to transfer such
Underlying Notes and (subject to and upon payment being made by the Issuer
to the bearer in accordance with the terms of the relevant Global Note)
will be entitled to receive payments from the Relevant Clearing System
calculated by reference to the Underlying Notes credited to its securities
account.
(D) In certain circumstances specified in each Global Note, a Global Note will
become void. The time at which a Global Note becomes void is hereinafter
referred to as the "Relevant Time". In such circumstances each Relevant
Account Holder will, subject to and in accordance with the terms of this
Deed, acquire against the Issuer all those rights which such Relevant
Account Holder would have had if, prior to the Global Note becoming void,
duly executed and authenticated Definitive Bearer Note(s) (as defined in
the Note Issuance Agreement) and, if the Notes are repayable in
instalments, receipts in respect thereof (the "Receipts") and interest
coupons (the "Coupons") appertaining to the Definitive Bearer Note(s) (if
appropriate) had been issued in respect of its Underlying Note(s) and such
Definitive Bearer Notes(s), Receipts (if appropriate) and Coupons (if
appropriate) were held and beneficially owned by such Relevant Account
Holder.
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(E) The obligations of the Issuer under this Deed have been unconditionally
and irrevocably guaranteed by The Bear Xxxxxxx Companies Inc. (the
"Guarantor") pursuant to the Deed of Guarantee executed by the Guarantor
on June 29th, 2001, as amended from time to time (the "Guarantee"). An
executed copy of the Guarantee has been deposited with and shall be held
by the Agent on behalf of, inter alia, the Noteholders, Couponholders and
Receiptholders from time to time and for the time being at its specified
office (being at the date hereof at Xxxxxxx Xxxxx, 0 Xxxxxx Xxxx Xxxxxx,
Xxxxxx X0X 0XX) and a copy of the Guarantee shall be available for
inspection at such specified office and at the specified office of each of
the other agents named in the Note Issuance Agreement.
NOW THIS DEED WITNESSES AS FOLLOWS:
1. (a) Terms defined in the Note Issuance Agreement and used herein shall
have the same meaning, unless the context otherwise requires.
(b) If any Global Note becomes void in accordance with the terms thereof
the Issuer hereby undertakes and covenants with each Relevant
Account Holder (other than when any Relevant Clearing System is an
account holder of any other Relevant Clearing System) that each
Relevant Account Holder shall automatically acquire at the Relevant
Time, without the need for any further action on behalf of any
person, against the Issuer all those rights which such Relevant
Account Holder would have had if at the Relevant Time it held and
beneficially owned duly executed and authenticated Definitive Bearer
Note(s), Receipts (if appropriate) and Coupons (if appropriate) in
respect of each Underlying Note represented by such Global Note
which such Relevant Account Holder has credited to its securities
account with the Relevant Clearing System at the Relevant Time. The
Issuer's obligation pursuant to this clause shall be a separate and
independent obligation by reference to each Underlying Note which a
Relevant Account Holder has credited to its securities account with
the Relevant Clearing System and the Issuer agrees that a Relevant
Account Holder may assign its rights hereunder in whole or in part.
2. The records of the Relevant Clearing System shall be conclusive evidence
of the identity of the Relevant Account Holders and the number of
Underlying Notes credited to the securities account of each Relevant
Account Holder. For the purposes hereof a statement issued by the Relevant
Clearing System stating:
(i) the name of the Relevant Account Holder to which such statement is
issued; and
(ii) the aggregate nominal amount of Underlying Notes credited to the
securities account of such Relevant Account Holder as at the opening
of business on the first day following the Relevant Time on which
the Relevant Clearing System is open for business,
shall be conclusive evidence of the records of the Relevant Clearing
System at the Relevant Time.
3. In the event of a dispute, the determination of the Relevant Time by the
Relevant Clearing System (in the absence of manifest error) shall be final
and conclusive for all purposes in connection with the Relevant Account
Holders with securities accounts with the Relevant Clearing System.
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4. The Issuer will pay to each Relevant Account Holder who is not resident in
the country in which the Issuer is organised or is a United States Alien
(as defined below) such additional amounts ("Additional Amounts") as may
be necessary in order that every net payment of the principal of and
interest on Underlying Notes held by such person, after deduction or
withholding for or on account of any present or future tax, assessment or
governmental charge imposed upon or as a result of such payment by the
country in which the Issuer is organised, or any political subdivision or
taxing authority thereof or therein, will not be less than the amount
provided for in such Notes then due and payable before any such tax,
assessment or other governmental charge; provided that the foregoing
obligation to pay Additional Amounts will not apply to:
(a) any tax, assessment or other governmental charge which would not
have been so imposed but for:
(i) the existence of any present or former connection between such
Holder (or between a fiduciary, settlor, beneficiary, member,
partner or shareholder of, or possessor of a power over such
Holder, if such Holder is an estate, trust, partnership or
corporation) and the country in which the Issuer is organised,
including, without limitation, such holder (or such fiduciary,
settlor, beneficiary, member, shareholder or possessor) being
or having been a citizen or resident of the country in which
the Issuer is organised or treated as a resident thereof, or
being or having been engaged in trade or business or present
therein, or having or having had a permanent establishment
therein or making or having made an election the effect of
which is to subject such holder or beneficial owner (or such
fiduciary, settlor, beneficiary, member, shareholder or
possessor) to such tax, assessment or other governmental
charge;
(ii) the failure of such Holder or beneficial owner of Underlying
Notes to comply with any requirement under income tax
treaties, statutes and regulations or administrative practice
of the country in which the Issuer is organised, to establish
entitlement to exemption from or reduction of such tax,
assessment or other governmental charge; or
(iii) payment being made in the Cayman Islands or the United States
(as the case may be) or otherwise than to an account with a
bank outside the United States on Underlying Notes;
(b) any tax, assessment or other governmental charge which would not
have been so imposed but for the presentation by the Relevant
Account Holder of such Underlying Notes for payment on a date more
than 10 days after the date on which such payment becomes due and
payable or the date on which payment thereof is duly provided for
and notice is given to Noteholders, whichever occurs later;
(c) any estate, inheritance, gift, sales, transfer, personal property or
similar tax, assessment or governmental charge;
(d) any tax, assessment or other governmental charge which is payable
otherwise than by deduction or withholding from payments of
principal of or interest on such Underlying Notes;
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(e) any tax, assessment or other governmental charge which is payable by
a Relevant Account Holder that is not the beneficial owner of the
Underlying Notes or a portion of either, or that is a foreign or
fiduciary partnership, but only to the extent that a beneficial
owner, settlor with respect to such fiduciary or member of the
partnership would not have been entitled to the payment of an
Additional Amount had the beneficial owner or member received
directly its beneficial or distributive share of the payment;
(f) any tax, assessment or other governmental charge required to be
withheld by any Paying Agent from any payment of the principal of or
interest on any Underlying Notes, if such payment can be made
without such withholding by any other Paying Agent;
(g) any Note, Receipt or Coupon where any withholding or deduction is
imposed on a payment to an individual and is required to be made
pursuant to any European Union Directive on the taxation of savings
implementing the conclusions of the ECOFIN Council meeting of
November 26-27, 2000 or any law implementing or complying with, or
introduced in order to conform to, such Directive;
(h) any Note, Receipt or Coupon presented for payment by or on behalf of
a holder who would be able to avoid such withholding or deduction by
presenting the relevant Note, Receipt or Coupon to another Paying
Agent in a European Union member state;
(i) any tax, assessment or other governmental charge which would not
have been so imposed but for the Underlying Notes being treated as
anything other than a debt instrument for U.S. federal income tax
purposes; or
(j) any combination of items (a), (b), (c), (d), (e), (f), (g), (h) and
(i).
For the purposes of the foregoing, the holding of or the receipt of any
payment with respect to Underlying Notes will not constitute a connection
between the Relevant Account Holder (or between a fiduciary, settlor,
beneficiary, member or shareholder of, or a person having a power over,
such Holder if such Holder is an estate, a trust, a partnership or a
corporation) and the Cayman Islands. Further, "United States Alien" means
any person who, for United States federal income tax purposes, is a
foreign corporation, a non-resident alien individual, a foreign estate or
trust subject to withholding under Sections 1441 or 1442 of the Internal
Revenue Code, or a foreign partnership one or more of the members of which
is, for United States federal income tax purposes, a foreign corporation,
a non-resident alien individual or a foreign estate or trust subject to
withholding under Sections 1441 or 1442 of the Internal Revenue Code.
Except as specifically provided herein, the Issuer will not be required to
make any payment with respect to any tax, assessment or other governmental
charge imposed by any government or any political subdivision or taxing
authority thereof or therein. References herein to principal and/or
interest shall be deemed also to refer to any Additional Amounts which may
be payable under this Clause.
5. The Issuer will pay any stamp and other duties and taxes, including
interest and penalties, payable on or in connection with the execution of
this Deed and any action taken by any Relevant Account Holder to enforce
the provisions of this Deed.
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6. The Issuer hereby warrants, represents, and covenants with each Relevant
Account Holder that it has all corporate power, and has taken all
necessary corporate or other steps, to enable it to execute, deliver and
perform this Deed, and that this Deed constitutes a legal, valid and
binding obligation of the Issuer enforceable in accordance with its terms
subject to the laws of bankruptcy and other laws affecting the rights of
creditors generally.
7. This Deed shall take effect as a Deed Poll for the benefit of the Relevant
Account Holders from time to time and for the time being. This Deed shall
be deposited with and held by the depositary for the Relevant Clearing
System until all the obligations of the Issuer hereunder have been
discharged in full.
8. The Issuer hereby acknowledges right of every Relevant Account Holder to
the the production of, and the right of every Relevant Account Holder to
obtain (upon payment of a reasonable charge) a copy of, this Deed, and
further acknowledges and covenants that the obligations binding upon it
contained herein are owed to, and shall be for the account of, each and
every Relevant Account Holder, and that each Relevant Account Holder shall
be entitled severally to enforce the said obligations against the Issuer.
9. This Deed is governed by, and shall be construed in accordance with, the
laws of England.
The Issuer hereby irrevocably agrees, for the exclusive benefit of the
Relevant Account Holders, that the courts of England are to have
jurisdiction to settle any disputes which may arise out of or in
connection with this Deed and that accordingly any suit, action or
proceedings (together referred to as "Proceedings") arising out of or in
connection with this Deed may be brought in such courts.
The Issuer hereby irrevocably waives any objection which it may have now
or hereafter to the laying of the venue of any such Proceedings in any
such court and any claim that any such Proceedings have been brought in an
inconvenient forum and hereby further irrevocably agrees that a judgment
in any such Proceedings brought in the English courts shall be conclusive
and binding upon it and may be enforced in the courts of any other
jurisdiction. Nothing contained in this clause shall limit any right to
take Proceedings against the Issuer in any other court of competent
jurisdiction, nor shall the taking of Proceedings in one or more
jurisdictions preclude taking of the Proceeding in any other jurisdiction,
whether concurrently or not.
The Issuer hereby appoints Bear Xxxxxxx International Trading Limited at
its registered office at Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX as its agent
for service of process, and undertakes that, in the event of Bear Xxxxxxx
International Trading Limited ceasing so to act or ceasing to be
registered in England, it will appoint another person as its agent for
service of process in England in respect of any Proceedings.
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IN WITNESS whereof the Issuer has caused this Deed to be duly executed the day
and year first above mentioned.
EXECUTED as a deed )
by BEAR XXXXXXX GLOBAL )
ASSET HOLDINGS, LTD. ) XXXXXX XXXXXXXX
acting by )
acting under )
the authority of the Company, )
in the presence of:
Witness: XXXXX XXXXX
Name:
Address: 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000
Occupation: Legal Secretary
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