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FIRST SUPPLEMENTAL INDENTURE
between
THE BEAR XXXXXXX COMPANIES INC.
and
THE CHASE MANHATTAN BANK
Dated as of December 16, 1998
7 1/2% JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURES
DUE DECEMBER 15, 2008
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01 Definition of Terms................. ............................2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.01 Designation and Principal Amount.................................4
SECTION 2.02 Stated Maturity..................................................4
SECTION 2.03 Form and Payment; Minimum Transfer Restriction...................4
SECTION 2.04 Exchange and Registration of Transfer of Debentures; Depositary..5
SECTION 2.05 Interest.........................................................7
ARTICLE III
REDEMPTION AND PREPAYMENT OF THE DEBENTURES
SECTION 3.01 Optional Redemption by Company...................................7
SECTION 3.02 Special Event Prepayment.........................................8
SECTION 3.03 Notice of Prepayment.............................................8
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.01 Extension of Interest Payment Period.............................8
SECTION 4.02 Notice of Extension..............................................9
ARTICLE V
EXPENSES
SECTION 5.01 Payment of Expenses..............................................9
SECTION 5.02 Payment upon Resignation or Removal.............................10
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ARTICLE VI
FORM OF DEBENTURE
SECTION 6.01 Form of Debenture...............................................10
ARTICLE VII
ISSUE OF DEBENTURES
SECTION 7.01 Issue of Debentures.............................................10
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Ratification of Base Indenture; Supplemental Indenture Controls.11
SECTION 8.02 Trustee Not Responsible for Recitals............................11
SECTION 8.03 Governing Law...................................................11
SECTION 8.04 Separability....................................................11
SECTION 8.05 Counterparts....................................................12
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FIRST SUPPLEMENTAL INDENTURE, dated as of December 16, 1998 (the
"Supplemental Indenture"), between The Bear Xxxxxxx Companies Inc., a Delaware
corporation (the "Company"), and The Chase Manhattan Bank, as trustee (the
"Trustee") under the Indenture, dated as of December 16, 1998, between the
Company and the Trustee (the "Base Indenture" and together with all supplements
thereto, the "Indenture").
WHEREAS, the Company executed and delivered the Base Indenture to the
Trustee to provide for the future issuance of the Company's unsecured
subordinated debentures to be issued from time to time in one or more series as
might be determined by the Company under the Indenture, in an unlimited
aggregate principal amount which may be authenticated and delivered as provided
in the Base Indenture;
WHEREAS, pursuant to the terms of the Base Indenture, the Company desires
to provide for the establishment of a new series of its unsecured subordinated
debentures to be known as its 7 1/2% Junior Subordinated Deferrable Interest
Debentures due December 15, 2028 (the "Debentures"), the form and substance of
such Debentures and the terms, provisions and conditions thereof to be set forth
as provided in the Base Indenture and this Supplemental Indenture;
WHEREAS, Bear Xxxxxxx Capital Trust II, a Delaware statutory business trust
(the "Trust"), has offered to the underwriters (the "Underwriters") named in
Schedule I to the Underwriting Agreement, dated December 9, 1998 (the
"Underwriting Agreement"), among the Underwriters, the Trust and the Company,
12,000,000 shares ($300,000,000 aggregate liquidation amount) of its 7 1/2%
Trust Issued Preferred Securities (the "Preferred Securities"), representing
undivided beneficial interests in the assets of the Trust and proposes to invest
the proceeds from such offering in $300,000,000 aggregate principal amount of
the Debentures;
WHEREAS, the Company has requested that the Trustee execute and deliver
this Supplemental Indenture; all requirements necessary to make this
Supplemental Indenture a valid instrument in accordance with its terms, and to
make the Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed; and the execution and delivery of this Supplemental Indenture has
been duly authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the Holders thereof, and for the purpose of setting forth, as
provided in the Base Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees with
the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definition of Terms.
For all purposes of this Supplemental Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms which are defined in the Base Indenture have the same
meanings when used in this Supplemental Indenture;
(b) the terms defined in this Article have the meaning assigned to them in
this Article and include the plural as well as the singular;
(c) all other terms used herein which are defined in the Trust Indenture
Act, whether directly or by reference therein, have the meanings assigned to
them therein;
(d) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles in
the United States of America, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with respect to
any computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States of America at the date
of such computation;
(e) a reference to a Section or Article is to a Section or Article of this
Supplemental Indenture;
(f) the words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Supplemental Indenture as a whole and not to any particular
Article, Section or other subdivision;
(g) headings are for convenience of reference only and do not affect
interpretation; and
(h) the following terms have the meanings given to them in the Trust
Agreement: (i) Administrators; (ii) Affiliate; (iii) Business Day; (iv) Clearing
Agency; (v) Closing Date; (vi) Common Securities; (vii) Delaware Trustee; (viii)
Distribution; (ix) Exchange Act; (x) Guarantee; (xi) Like Amount; (xii) Opinion
of Counsel; (xiii) Preferred Securities; (xiv) Preferred Securities Certificate;
(xv) Property Trustee; and (xvi) Trust Securities.
(i) References herein to the prepayment of the Debentures shall be deemed
to be references to the redemption of the Debentures for the purposes of Article
III of the Base Indenture.
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"Additional Sums" means the additional amounts as may be necessary in order
that the amount of Distributions then due and payable by the Trust on the
outstanding Preferred Securities and Common Securities shall not be reduced as a
result of any additional taxes, duties and other governmental charges to which
the Trust has become subject as a result of a Special Event.
"Compounded Interest" shall have the meaning specified in Section 4.01.
"Coupon Rate" has the meaning specified in Section 2.05.
"Deferred Interest" has the meaning specified in Section 4.01.
"Extension Period" has the meaning specified in Section 4.01.
"Global Debenture" has the meaning specified in Section 2.04.
"Investment Company Event" means the receipt by the Trust of an Opinion of
Counsel to the effect that, as a result of the occurrence of a change in law or
regulation or a change (including any announced proposed change) in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority, there is more than an
insubstantial risk that the Trust is or will be considered an "investment
company" that is required to be registered under the 1940 Act, which change or
proposed change becomes effective or would become effective, as the case may be,
on or after the date of the issuance of the Preferred Securities of the Trust.
"Liquidation Amount" means the stated amount of $25 per Preferred Security.
"Optional Redemption Price" has the meaning specified in Section 3.01.
"Prepayment Date" has the meaning specified in Section 3.01.
"Special Event" means an Investment Company Event or a Tax Event.
"Special Event Prepayment" means the prepayment of the Debentures upon the
occurrence and continuation of a Special Event.
"Tax Event" means the receipt by the Trust of an Opinion of Counsel to the
effect that, as a result of any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein, or
as a result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement or decision is announced on or after the
Closing Date, there is more than an insubstantial risk that (i) the Trust is, or
will be within 90 days of the date of such opinion, subject to United States
federal income tax with respect to income received or accrued on the Debentures,
(ii) interest payable by the Company on the Debentures is not, or within 90 days
of the date of such opinion, will not be, deductible by the Company, in whole or
in part, for United States federal income tax purposes, or (iii) the
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Trust is, or will be within 90 days of the date of such opinion, subject to more
than a de minimis amount of taxes, duties or other governmental charges.
"Trust Agreement" means the Amended and Restated Trust Agreement of the
Trust, dated as of December 16, 1998.
"Underwriters" has the meaning specified in the third recital to this
Supplemental Indenture.
"Underwriting Agreement" has the meaning specified in the third recital to
this Supplemental Indenture.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.01 Designation and Principal Amount.
The aggregate principal amount of Debentures outstanding at any time shall
not exceed $309,278,375 (except as set forth in Section 2.01(2) of the Base
Indenture). Upon receipt of a written order of the Company (executed as required
by Section 2.01 of the Base Indenture) for the authentication and delivery of a
series of Debentures and satisfaction of the requirements of the fifth paragraph
of Section 2.01 of the Base Indenture, the Trustee shall authenticate Debentures
for original issuance in an aggregate principal amount not to exceed
$309,278,375 (except as set forth in Section 2.01(2) of the Base Indenture).
SECTION 2.02 Stated Maturity.
The Stated Maturity of the Debentures is December 15, 2028 and shall not be
subject to extension.
SECTION 2.03 Form and Payment; Minimum Transfer Restriction.
(a) Except as provided in Section 2.04, the Debentures shall be issued to
the Trust and held by the Property Trustee in fully registered certificated form
without coupons in minimum denominations of $25 and integral multiples of $25 in
excess thereof. Principal and interest on the Debentures issued in certificated
form will be payable, the transfer of such Debentures will be registrable and
such Debentures will be exchangeable for Debentures bearing identical terms and
provisions at the principal office of the Trustee; provided, however, that
payment of interest may be made at the option of the Company (i) by check mailed
to the registered holder at such address as shall appear in the Register or (ii)
by transfer to an account maintained by such Person as specified in such
Register, provided that proper transfer instructions have been received by the
preceding record date. Notwithstanding the foregoing, so long as the registered
holder of any Debentures is the Property Trustee, the payment of the principal
of and interest (including Additional Sums, Additional Interest and
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Compounded Interest, if any) on such Debentures held by the Property Trustee
will be made at such place and to such account as may be designated by the
Property Trustee.
(b) The Debentures may be transferred or exchanged only in minimum
denominations of $25 and integral multiples of $25 in excess thereof; and any
attempted transfer, sale or other disposition of Debentures in a denomination of
less than $25 shall be deemed to be void and of no legal effect whatsoever (the
foregoing restriction being the "Minimum Transfer Restriction").
SECTION 2.04 Exchange and Registration of Transfer of Debentures;
Depositary.
If an early dissolution of the Trust occurs as described in the Trust
Agreement and Debentures are to be distributed to the holders of the Preferred
Securities, a Like Amount of the Debentures will be issued to holders of the
Trust Securities in the same form as the Trust Securities that such Debentures
replace in accordance with the following procedures:
(a) So long as Debentures are eligible for book-entry settlement with the
Depositary, or unless otherwise required by law, all Debentures that are so
eligible may be represented by one or more Debentures in global form registered
in the name of Cede & Co. the nominee of the Depositary, except as otherwise
specified below. The transfer and exchange of beneficial interests in any such
Debenture in global form shall be shown on, and transfers thereof will be
effected only through, records maintained by participants in the Depositary.
Debentures that are distributed in replacement of Preferred Securities
represented by a global Preferred Security will be represented by a global
Debenture (the "Global Debenture").
Except as provided below, beneficial owners of a Debenture in global form
shall not be entitled to have certificates registered in their names, will not
receive or be entitled to receive physical delivery of certificates in
definitive form and will not be considered registered holders of such Debentures
in global form.
(b) Trust Securities held in certificated form, except for certificates
representing Preferred Securities held by Cede & Co. as nominee of the
Depositary (or any successor Clearing Agency or its nominee), shall upon
presentation to the Trustee by the Property Trustee or by the holder thereof or
by the Property Trustee on behalf of such holders be exchanged for a Like Amount
of Debentures in fully registered certificated form.
(c) Any Global Debenture may be endorsed with or have incorporated in the
text thereof such legends or recitals or changes not inconsistent with the
provisions of the Indenture as may be required by the Depositary or required to
comply with the rules and regulations of any exchange, interdealer quotation
system or self-regulatory organization upon which the Debentures may be listed
or traded or to conform with any usage with respect
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thereto, or to indicate any special limitations or restrictions to which any
particular Debentures are subject.
(d) Notwithstanding any other provisions of the Indenture (other than the
provisions set forth in this Section 2.04(d)), a Debenture in global form may
not be exchanged in whole or in part for Debentures registered, and no transfer
of a Debenture in global form may be registered, in the name of any person other
than Cede & Co. unless (i) the Depositary (A) has notified the Company that it
is unwilling or unable to continue as Depositary for such Global Debenture or
(B) has ceased to be a clearing agency registered as such under the Exchange
Act, (ii) there shall have occurred and be continuing an Event of Default, or
any event which after notice or lapse of time or both would be an Event of
Default under the Indenture, with respect to such Global Debenture, or (iii) the
Company in its sole discretion instructs the Trustee to exchange such Global
Debenture for a Debenture that is not a Global Debenture (in which case such
exchange shall be effected by the Trustee).
The Depositary shall be a clearing agency registered under the Exchange
Act. The Company initially appoints The Depository Trust Company to act as
Depositary with respect to the Debentures in global form. Initially, the Global
Debentures shall be issued to the Depositary, registered in the name of Cede &
Co., as the nominee of the Depositary, and deposited with the Trustee as
custodian for Cede & Co.
If at any time the Depositary for the Global Debentures notifies the
Company that it is unwilling or unable to continue as Depositary for such
Debentures or has ceased to be a Clearing Agency registered as such under the
Exchange Act, the Company may appoint a successor Depositary with respect to
such Debentures. If a successor Depositary for the Debentures is not appointed
by the Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company will execute, and the Trustee, upon
receipt of an Officers' Certificate for authentication and delivery of
Debentures, will authenticate and deliver, Debentures in definitive form, in an
aggregate principal amount equal to the principal amount of the Global
Debentures, in exchange for the such Global Debentures.
Definitive Debentures issued in exchange for all or a part of a Global
Debenture pursuant to this Section 2.04(d) shall be registered in such names and
in such authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee. Upon execution and authentication, the Trustee shall deliver such
definitive Debentures to the person in whose names such definitive Debentures
are so registered.
At such time as all interests in a Global Debenture have been redeemed,
exchanged, repurchased or canceled, such Global Debenture shall be, upon receipt
thereof, canceled by the Trustee in accordance with standing procedures and
instructions of the Depositary. At any time prior to such cancellation, if any
interest in a Global Debenture is exchanged for definitive Debentures, redeemed,
exchanged, or canceled, or transferred for part of a Global Debenture, the
principal amount of such Global Debenture shall, in accordance with the standing
procedures and instructions of the Depositary be reduced, and an
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endorsement shall be made on such Global Debenture by, or at the direction of,
the Trustee to reflect such reduction.
SECTION 2.05 Interest.
(a) Each Debenture will bear interest at the rate (the "Coupon Rate") of 7
1/2% per annum, until the principal thereof becomes due and payable, and on any
overdue principal and (to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
Coupon Rate, compounded quarterly, payable (subject to the provisions of Article
4) quarterly in arrears on the 15th day of January, April, July and October of
each year (each, an "Interest Payment Date"), commencing on January 15, 1999 to
the Person in whose name such Debenture is registered, subject to certain
exceptions, at the close of business on the Business Day next preceding such
Interest Payment Date. If the Debentures are issued in certificated form (other
than to the Property Trustee), the record dates for payment of interest will be
the 1st day of the month in which the relevant Interest Payment Date occurs.
Until liquidation, if any, of the Trust, each Debenture will be held in the name
of the Property Trustee in trust for the benefit of the holders of the Trust
Securities.
(b) The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. In the event that any date on
which interest is payable on the Debentures is not a Business Day, then payment
of interest payable on such date will be made on the next succeeding day which
is a Business Day with the same force and effect as if made on the date such
payment was originally payable, without any interest or other payment with
respect to any such delay.
ARTICLE III
REDEMPTION AND PREPAYMENT OF THE DEBENTURES
SECTION 3.01 Optional Redemption by Company.
Subject to the provisions of Article III of the Base Indenture, except as
otherwise may be specified in Section 3.02 or elsewhere in this Supplemental
Indenture, the Company shall have the right to prepay the Debentures, in whole
or in part, from time to time, on or after December 15, 2003, at a prepayment
price (the "Optional Redemption Price") equal to the outstanding principal
amount of the Debentures plus, in each case, accrued and unpaid interest,
including Additional Sums, Additional Interest and Compounded Interest thereon
to the date of prepayment (the "Prepayment Date").
If the Debentures are only partially prepaid pursuant to this Section 3.01,
the Debentures will be selected for prepayment by any method utilized by the
Trustee. The Optional Redemption Price, together with any required interest
payment, shall be paid prior to 12:00 Noon, New York City time, on the
Prepayment Date or at such earlier time as the Company determines provided that
the Company shall deposit with the Trustee an amount sufficient to pay the
Optional Redemption Price, together with any required interest payment, by 10:00
a.m., New York City time, on the date such amounts are to be paid.
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SECTION 3.02 Special Event Prepayment.
If a Special Event shall occur and be continuing, the Company may, at its
option, prepay the Debentures in whole (but not in part) at any time within 90
days of the occurrence of such Special Event, at a prepayment price (the
"Special Event Prepayment Price") equal to 100% of the principal amount of such
Debentures plus accrued and unpaid interest including Additional Sums,
Additional Interest and Compounded Interest thereon to but excluding the
Prepayment Date.
SECTION 3.03 Notice of Prepayment.
Subject to Article III of the Base Indenture, notice of any prepayment will
be mailed at least 30 days but not more than 60 days before the redemption date
to each holder of Debentures to be prepaid at its registered address. Unless the
Company defaults in payment of the Prepayment Price, on and after the Prepayment
Date interest ceases to accrue on such Debentures called for prepayment.
If the Trust is required to pay any additional taxes, duties or other
governmental charges as a result of a Special Event, the Company will also pay
any Additional Sums on the Debentures.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.01 Extension of Interest Payment Period.
So long as an Event of Default under Section 6.01 of the Base Indenture
shall not have occurred and be continuing, the Company shall have the right,
subject to the provisions of Section 2.10 of the Base Indenture, at any time and
from time to time during the term of the Debentures, to defer payments of
interest by extending the interest payment period of such Debentures for a
period not exceeding 20 consecutive quarterly periods (the "Extension Period"),
during which Extension Period no interest shall be due and payable; provided
that no Extension Period shall end on a date other than an Interest Payment Date
or extend beyond the Stated Maturity or any earlier redemption date. To the
extent permitted by applicable law, interest, the payment of which has been
deferred because of the extension of the interest payment period pursuant to
this Section 4.01, will bear interest thereon at the Coupon Rate compounded
semiannually ("Compounded Interest"). At the end of the Extension Period, the
Company shall pay all interest accrued and unpaid on the Debentures, including
any Additional Sums, Additional Interest and Compounded Interest (together,
"Deferred Interest") to the holders of the Debentures in whose names the
Debentures are registered in the Register on the first record date preceding the
end of the Extension Period. Before the termination of any Extension Period, the
Company may further extend such period, provided that such period together with
all such further extensions thereof shall not exceed 20 consecutive quarterly
periods, or extend beyond the Stated Maturity or any earlier redemption date.
Upon the termination of any Extension Period and upon the payment of all
Deferred
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Interest then due, the Company may commence a new Extension Period, subject to
the foregoing requirements. No interest shall be due and payable during an
Extension Period, except at the end thereof, but the Company may prepay at any
time all or any portion of the interest accrued during an Extension Period.
SECTION 4.02 Notice of Extension.
(a) If the Property Trustee is the only registered holder of the Debentures
at the time the Company selects (or extends) an Extension Period, the Company
shall give written notice to the Administrators, the Property Trustee and the
Trustee of its selection (or extension) of such Extension Period at least five
Business Days before the earlier of (i) the next succeeding date on which
Distributions on the Preferred Securities issued by the Trust are payable, or
(ii) the date the Trust is required to give notice of the record date, or the
date such Distributions are payable, to any applicable exchange, interdealer
quotation system or self-regulatory organization or to holders of the Preferred
Securities issued by the Trust, but in any event not less than five Business
Days before such record date. The Property Trustee shall give notice of the
Company's election to begin or extend a new Extension Period to the holders of
the Preferred Securities.
(b) If the Property Trustee is not the only holder of the Debentures at the
time the Company selects (or extends) an Extension Period, the Company shall
give the holders of the Debentures and the Trustee written notice of its
selection (or extension) of such Extension Period at least 10 Business Days
before the earlier of (i) the next succeeding Interest Payment Date or (ii) the
date the Company is required to give notice of the record or payment date of
such interest payment to any applicable self-regulatory organization or to
holders of the Debentures.
(c) The quarterly period in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.02 shall be counted as one of the 20
consecutive quarterly periods permitted in the maximum Extension Period
permitted under Section 4.01.
ARTICLE V
EXPENSES
SECTION 5.01 Payment of Expenses.
In connection with the offering, sale and issuance of the Debentures to the
Property Trustee and in connection with the sale of the Preferred Securities by
the Trust, the Company, in its capacity as borrower with respect to the
Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and issuance
of the Debentures, including commissions to the Underwriters payable pursuant to
the Underwriting Agreement and compensation of the Trustee under the Indenture
in accordance with the provisions of Section 7.06 of the Base Indenture;
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(b) pay all costs and expenses of the Trust (including, without limitation,
costs and expenses relating to the organization of the Trust, the fees and
expenses of the Property Trustee and the Delaware Trustee, the costs and
expenses relating to the operation of the Trust, including, without limitation,
costs and expenses of accountants, attorneys, statistical or bookkeeping
services, expenses for printing and engraving and computing or accounting
equipment, paying agent(s), registrar(s), transfer agent(s), duplicating, travel
and telephone and other telecommunications expenses and costs and expenses
incurred in connection with the acquisition, financing, and disposition of Trust
assets);
(c) pay all costs and expenses related to the enforcement by the Property
Trustee of the rights of the registered holders of the Preferred Securities;
(d) be primarily liable for any indemnification obligations arising with
respect to the Trust Agreement or the Underwriting Agreement; and
(e) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and expenses
with respect to such taxes of the Trust.
SECTION 5.02 Payment upon Resignation or Removal.
Upon termination of this Supplemental Indenture or the Base Indenture or
the removal or resignation of the Trustee pursuant to Section 7.10 of the Base
Indenture, the Company shall pay to the Trustee all amounts accrued to the date
of such termination, removal or resignation. Upon termination of the Trust
Agreement or the removal or resignation of the Delaware Trustee or the Property
Trustee, as the case may be, pursuant to Section 8.10 of the Trust Agreement,
the Company shall pay to the Delaware Trustee or the Property Trustee, and their
respective counsel, as the case may be, all amounts accrued to the date of such
termination, removal or resignation.
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.01 Form of Debenture.
The Debentures and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the form attached hereto as Exhibit
A.
ARTICLE VII
ISSUE OF DEBENTURES
SECTION 7.01 Issue of Debentures.
Debentures in the aggregate principal amount of up to $309,278,375 may,
upon execution of this Supplemental Indenture, be executed by the Company and
delivered to the
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Trustee for authentication, and the Trustee shall thereupon authenticate and
make available for delivery said Debentures to or upon the written order of the
Company, signed by its Chairman of the Board, any Vice Chairman of the Board,
the President, any Vice Chairman, any Executive Vice President, the Chief
Operating Officer or the Chief Financial Officer and by its Treasurer or
Assistant Treasurer, Controller or the Secretary or an Assistant Secretary
without any further action by the Company, except as otherwise provided in
Section 2.01 of the Base Indenture.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Ratification of Base Indenture; Supplemental Indenture
Controls.
The Base Indenture, as supplemented by this Supplemental Indenture, is in
all respects ratified and confirmed, and this Supplemental Indenture shall be
deemed part of the Base Indenture in the manner and to the extent herein and
therein provided. The provisions of this Supplemental Indenture shall supersede
the provisions of the Base Indenture to the extent the Indenture is inconsistent
herewith.
SECTION 8.02 Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
Supplemental Indenture.
SECTION 8.03 Governing Law.
THIS SUPPLEMENTAL INDENTURE AND EACH DEBENTURE SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER THE INTERNAL LAWS OF THE STATE OF NEW YORK, AND FOR ALL
PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID
STATE, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF.
SECTION 8.04 Separability.
In case any one or more of the provisions contained in this Supplemental
Indenture or in the Debentures shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Supplemental
Indenture or of the Debentures, but this Supplemental Indenture and the
Debentures shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
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SECTION 8.05 Counterparts.
This Supplemental Indenture may be executed in any number of counterparts
each of which shall be an original; but such counterparts shall together
constitute but one and the same instrument.
[remainder of page left blank intentionally]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed on the date or dates indicated in the
acknowledgments and as of the day and year first above written.
THE BEAR XXXXXXX COMPANIES INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Operating Officer
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Trust Officer
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EXHIBIT A
7 1/2% JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE
DUE DECEMBER 15, 2028
Registered No. __________
Dated: ____________ CUSIP __________
Registered Holder: [The Chase Manhattan Bank, as Property Trustee of Bear
Xxxxxxx Capital Trust II]*
The Bear Xxxxxxx Companies Inc., a corporation duly organized and existing
under the laws of the State of Delaware (herein referred to as the "Company,"
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to the Registered
Holder named above, the principal sum [of __________ Dollars ($_____)]**
[specified in the Schedule annexed hereto]***, on December 15, 2028 in such coin
or currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debt. The Company further promises
to pay to the registered holder hereof as hereinafter provided (a) interest on
said principal sum (subject to deferral as set forth herein) at the rate of 7
1/2% per annum (the "Coupon Rate"), in like coin or currency, quarterly in
arrears on the 15th day of January, April, July and October (each an "Interest
Payment Date") commencing January 15, 1999 from the date next preceding the date
hereof to which interest has been paid or duly provided for (unless (i) no
interest has yet been paid or duly provided for on this debenture (the
"Debenture"), in which case from the date of original issuance, or (ii) the date
hereof is before an Interest Payment Date but after the related Record Date (as
defined below), in which case from such following Interest Payment Date or next
succeeding Business Day to which interest shall have been paid; provided,
however, that if the Company shall default in payment of the interest due on
such following Interest Payment Date or Business Day, then from the next
preceding date to which interest has been paid or duly provided for), until the
principal hereof shall become due and payable, plus (b) interest on overdue
principal and, to the extent permitted by applicable law, on any interest
payment that is not made when due at the Coupon Rate, compounded quarterly. The
interest so payable will, subject to certain exceptions provided in the
Indenture hereinafter referred to, be paid to the person in whose name this
Debenture is registered at the close of business on the Record Date next
preceding such Interest Payment Date. The Record Date shall be the Business Day
next preceding the Interest Payment Date, unless this Certificate is registered
to a holder other than the Property Trustee or a nominee of The Depository Trust
Company, in which case the Record Date will be the 1st day of the month in which
the relevant Interest Payment Date occurs. This Debenture may be presented for
payment of
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principal and interest at the offices of The Chase Manhattan Bank, as paying
agent for the Company, maintained for that purpose in the Borough of Manhattan,
The City of New York, State of New York; provided, however, that payment of
interest may be made at the option of the Company (i) by check mailed to such
address of the person entitled thereto as the address shall appear on the
Register of the Debentures or (ii) by transfer to an account maintained by the
Person entitled thereto as specified in the Register, provided that proper
transfer instructions have been received by the Record Date. Interest on the
Debenture will be computed on the basis of a 360-day year of twelve 30-day
months. In the event that any date on which interest is payable on the
Debentures is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day which is a Business Day with the same
force and effect as if made on the date such payment was originally payable,
without any interest or other payment with respect to any such delay.
So long as no Event of Default has occurred and is continuing, the Company
shall have the right, at any time during the term of this Debenture to defer
payment of interest on this Debenture, at any time or from time to time, for up
to 20 consecutive quarterly interest payment periods with respect to each
deferral period (each an "Extension Period"), during which Extension Periods the
Company shall have the right to make partial payments of interest on any
Interest Payment Date; provided, however, that no Extension Period shall end on
a date other than an Interest Payment Date or extend beyond December 15, 2028 or
any earlier redemption date. At the end of each Extension Period, the Company
must pay all interest then accrued and unpaid (together with Additional Sums,
Additional Interest and Compounded Interest thereon, if any, to the extent
permitted by applicable law). During any such Extension Period, the Company
shall not, and shall not permit any Subsidiary of the Company to, (i) declare or
pay any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any shares of the Company's capital stock
(which includes common and preferred stock), or (ii) make any payment of
principal of or interest or premium, if any, on or repay, repurchase or redeem
any debt securities of the Company that rank pari passu with or junior in
interest to this Debenture or make any guarantee payments with respect to any
guarantee by the Company of the debt securities of any Subsidiary of the Company
that by its terms ranks pari passu with or junior in interest to this Debenture
(other than (a) dividends or distributions in capital stock of the Company; (b)
any declaration of a dividend in connection with the implementation of a Rights
Plan, or the issuance of capital stock of the Company under any Rights Plan, or
the redemption or repurchase of any rights distributed pursuant to a Rights
Plan; (c) payments under any Bear Xxxxxxx Guarantee (as defined in the Indenture
and the Existing Indenture); (d) purchases of common stock related to the
issuance of common stock or rights under any of the Company's benefit plans for
its directors, officers or employees; and (e) payments of interest pursuant to
the EPICS Loan Agreement). Prior to the termination of any such Extension
Period, the Company may further extend the interest payment period, provided
that no Extension Period shall exceed 20 consecutive quarterly periods or extend
beyond December 15, 2028 or any earlier redemption date. At any time following
the termination of any Extension Period and the payment of all accrued and
unpaid interest (including Additional Sums, Additional Interest and Compounded
Interest, if any) then due, the Company may elect to begin a new Extension
Period, subject to the above requirements. No interest shall be due and payable
during an Extension Period, except at the
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end thereof. The Company shall give the Trustee and the Property Trustee notice
of its election to begin or extend any Extension Period at least five Business
Days prior to the earlier of (i) the next succeeding date on which Distributions
on the Preferred Securities issued by Bear Xxxxxxx Capital Trust II would be
payable but for such election to begin or extend a new Extension Period, or (ii)
the date the Property Trustee is required to give notice to any applicable
self-regulatory organization or to holders of such Preferred Securities of the
record date or the date such Distributions are payable, but in any event not
less than five Business Days prior to such record date.
This Debenture is issued pursuant to an Indenture, dated as of December 16,
1998 between the Company, as issuer, and The Chase Manhattan Bank, a banking
corporation duly organized and existing under the laws of the State of New York,
as trustee, as supplemented (as further supplemented or amended from time to
time, the "Indenture"). Reference is made to the Indenture for a description of
the respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the Holders (the word "Holder" or
"Holders" meaning the registered holder or registered holders) of the
Debentures. Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture. By acceptance of this
Debenture, the Holder hereof agrees to be bound by the provisions of the
Indenture.
The Debentures are limited to the aggregate principal amount of Three
Hundred Nine Million Two Hundred Seventy-Eight Thousand Three Hundred
Seventy-Five Dollars ($309,278,375).
The Debentures evidenced by this Certificate may be transferred or
exchanged only in minimum denominations of $25 and integral multiples of $25 in
excess thereof, and any attempted transfer, sale or other disposition of
Debentures in a denomination of less than $25 shall be deemed to be void and of
no legal effect whatsoever.
The indebtedness of the Company evidenced by the Debentures, including the
principal thereof and interest thereon, is, to the extent and in the manner set
forth in the Indenture, subordinate and junior in right of payment to its
obligations to Holders of Senior Indebtedness of the Company and each Holder of
a Debenture, by acceptance thereof, agrees to and shall be bound by such
provisions of the Indenture and all other provisions of the Indenture.
This Debenture shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by or on
behalf of the Trustee under the Indenture.
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* Insert in Debenture held by Property Trustee only.
** Insert in definitive Debenture only.
*** Insert in global Debenture only.
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IN WITNESS WHEREOF, the Company has caused this instrument to be signed,
manually or in facsimile, by its Chairman of the Board, any Vice Chairman of the
Board, the President, any Vice Chairman, any Executive Vice President, the Chief
Operating Officer or the Chief Financial Officer and by its Treasurer or
Assistant Treasurer, Controller or the Secretary or an Assistant Secretary and a
facsimile of its corporate seal to be affixed hereunto.
THE BEAR XXXXXXX COMPANIES INC.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
[SEAL]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities, of the series designated therein, referred
to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
------------------------------
Authorized Officer
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[REVERSE OF DEBENTURE]
As provided in and subject to the provisions of the Indenture, if an Event
of Default with respect to the payment of principal or interest on the
Debentures or with respect to compliance with certain covenants occurs and is
continuing, then in every such case the Trustee or the Holders of not less than
25% in principal amount of the then outstanding Debentures may declare the
principal amount of all the Debentures, together with any accrued interest
(including Additional Sums, Additional Interest and Compounded Interest), to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee, if such notice is given by Holders). If the Debentures have been issued
to a Bear Xxxxxxx Trust, upon such an Event of Default, if the Trustee or the
Holders of not less than 25% in principal amount of the outstanding Debentures
fails to declare the principal of all the Debentures to be immediately due and
payable, the holders of at least 25% in aggregate Liquidation Amount of the
corresponding Preferred Securities of such Bear Xxxxxxx Trust then outstanding
shall have such right by a notice in writing to the Company and the Trustee, and
upon such declaration the principal amount of and the accrued interest
(including any Additional Sums, Additional Interest and Compounded Interest) on
all the Debentures shall become immediately due and payable, provided that the
payment of principal and interest on such Debentures shall remain subordinated
to the extent provided in the Indenture.
If an Event of Default with respect to certain covenants applicable to all
series of securities issued under the Indenture (collectively, the
"Securities"), or with respect to events of bankruptcy, insolvency or
reorganization of the Company occurs and is continuing, then and in every such
case the Trustee or the Holders of not less than 25% in principal amount of all
Securities outstanding under the Indenture (voting as a single class) may
declare the principal amount of all such Securities to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if such
notice is given by Holders), provided that, in the case of Securities of a
series issued under the Indenture to a Bear Xxxxxxx Trust, if upon such an Event
of Default the Trustee and the Holders of not less than 25% in principal amount
of all outstanding Securities of that series fail to declare the principal of
all the Securities of that series to be immediately due and payable, the holders
of at least 25% in aggregate Liquidation Amount of the corresponding Preferred
Securities of such Bear Xxxxxxx Trust then outstanding shall have such right by
a notice in writing to the Company and the Trustee; and upon any such
declaration the principal amount of and the accrued interest (including any
Additional Sums, Additional Interest and Compounded Interest) on all the
Securities of that series shall become immediately due and payable, provided
that the payment of principal and interest shall remain subordinated to the
extent provided in the Indenture.
The Indenture provides that in certain events such declaration that
principal and accrued interest are due and payable, and the consequences of such
declaration, may be rescinded and annulled by the holders of a majority in
principal amount of the Securities then outstanding under the Indenture as to
which such an acceleration of the payment of principal has occurred, voting as
one class. In the case of Securities of a series issued under the Indenture to a
Bear Xxxxxxx Trust, should the Holders of Securities of that series fail to
rescind and annul such declaration and its consequences, the Holders of a
majority in aggregate
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Liquidation Amount of the corresponding Preferred Securities of such Bear
Xxxxxxx Trust shall have such right. The Indenture also provides that the
Holders of a majority in principal amount of all of the Securities of all series
then outstanding as to which an Event of Default has occurred may, on behalf of
all Holders of such Securities, waive any past default under the Indenture other
than (a) a default in the payment of the principal of or interest on any of the
Securities or (b) a default in respect of a covenant or provision of the
Indenture which under the terms of the Indenture cannot be modified or amended
without the consent of each Holder of Securities so affected. In the case of
Securities of one or more series issued to one or more Bear Xxxxxxx Trusts, the
Indenture provides that the Holders of a majority in aggregate Liquidation
Amount of the corresponding Preferred Securities or Preferred Securities issued
by such Bear Xxxxxxx Trusts shall also have the right to waive such defaults.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in principal amount
of the outstanding Securities of all affected series (voting as one class), to
modify the Indenture in a manner affecting the rights of the holders of the
Securities of each such series; provided, however, that no such modification
shall (i) change the fixed maturity of any Securities, or reduce the rate or
extend the time of payment of interest thereon or reduce the principal amount
thereof, or change the provisions pursuant to which the rate of interest on the
Securities is determined if such change could reduce the rate of interest
thereon, or reduce the minimum rate of interest thereon, or reduce any amount
payable upon any redemption thereof, or adversely affect any right to convert
the Securities in accordance with the Indenture, or reduce the amount to be paid
at maturity or upon redemption or make the principal thereof or any interest
thereon or on any overdue principal amount payable in any coin or currency other
than that provided in the Securities without the consent of the holder of each
Security so affected, (ii) reduce the aforesaid percentage of Securities, the
holders of which are required to consent to any supplemental indenture, without
the consent of the holders of all Securities then Outstanding, or (iii) modify
any of the provisions of Section 4.07, Section 6.06 or Section 10.02 of the
Indenture, except to increase any such percentage or to provide that certain
other provisions of the Indenture cannot be modified or waived without the
consent of the holder of each Security affected thereby or (iv) modify the
provisions of Article XIV of the Indenture with respect to the subordination of
outstanding Securities of any series in a manner adverse to the holders thereof,
without the consent of the holder of each Security so affected; provided,
further, that, in the case of the Securities of a series issued to a Bear
Xxxxxxx Trust, so long as any of the corresponding series of Preferred
Securities issued by such Bear Xxxxxxx Trust remains outstanding, (i) no such
amendment shall be made that adversely affects the holders of such Preferred
Securities in any material respect (including any amendment which would result
in a Bear Xxxxxxx Trust being classified as other than a grantor trust for
United States federal income tax purposes), and no termination of the Indenture
shall occur, and no waiver of any Event of Default with respect to such series
or compliance with any covenant with respect to such series under the Indenture
shall be effective, without the prior consent of the holders of at least a
majority of the aggregate Liquidation Amount of such Preferred Securities then
outstanding, unless and until the principal (and premium, if any) of the
Securities of such series and all accrued and unpaid interest (including any
Additional Sums, Additional Interest and Compounded Interest) thereon shall have
been paid in full and (ii) no amendment shall be
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made to Section 6.05 of the Indenture (regarding the right of holders of
Preferred Securities to institute a suit directly against the Company) that
would impair the rights of the holders of Preferred Securities provided therein
without the prior consent of all holders of Preferred Securities then
outstanding, unless and until the principal (and premium, if any) of the
Securities of such series and all accrued and unpaid interest (including any
Additional Sums, Additional Interest and Compounded Interest) thereon have been
paid in full.
The Debenture will be prepayable, in whole or in part, at the option of the
Company at any time on or after December 15, 2003, at a prepayment price (the
"Optional Redemption Price") equal to the outstanding principal amount of the
Debenture plus accrued interest thereon to the date of prepayment.
Upon the occurrence and during the continuation of a Special Event, in
respect of the Trust, the Company may, at its option, at any time within 90 days
of the occurrence of such Special Event redeem this Debenture, in whole but not
in part, at a prepayment price (the "Special Event Prepayment Price") equal to
100% of the principal amount hereof plus accrued and unpaid interest to but
excluding the date of prepayment.
Any consent or waiver by the Holder of this Debenture given as provided in
the Indenture (unless effectively revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders of this
Debenture and of any Debenture issued in exchange, registration of transfer, or
otherwise in lieu hereof irrespective of whether any notation of such consent or
waiver is made upon this Debenture or such other Debentures. No reference herein
to the Indenture and no provision of this Debenture or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and interest on this Debenture, at the
places, at the respective times, at the rate and in the coin or currency herein
prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Debenture may be registered on the Register of the
Debentures upon surrender of this Debenture for registration of transfer at the
offices maintained by the Company or its agent for such purpose, duly endorsed
by the Holder hereof or his attorney duly authorized in writing, or accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Securities Registrar duly executed by the Holder hereof or his attorney duly
authorized in writing, but without payment of any charge other than a sum
sufficient to reimburse the Company for any tax or other governmental charge
incident thereto. Upon any such registration of transfer, a new Debenture or
Debentures of authorized denomination or denominations for the same aggregate
principal amount will be issued to the transferee in exchange herefor.
Prior to due presentment for registration of transfer of this Debenture,
the Company, the Trustee, and any agent of the Company or the Trustee may deem
and treat the person in whose name this Debenture shall be registered upon the
Register of the Debentures of this series as the absolute owner of this
Debenture (whether or not this Debenture shall be overdue and notwithstanding
any notation of ownership or other writing hereon) for the
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purpose of receiving payment of or on account of the principal hereof and,
subject to the provisions on the face hereof, interest due hereon and for all
other purposes; and neither the Company nor the Trustee nor any such agent shall
be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or interest on
this Debenture, or for any claim based hereon or otherwise in respect hereof, or
based on or in respect of the Indenture or any indenture supplemental thereto,
against any stockholder, officer, director or employee, as such, past, present
or future, of the Company or of any successor corporation, either directly or
through the Company, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as a part of the consideration for
the issue hereof, expressly waived and released.
The Company, and by acceptance of this Debenture, the Holder hereof, and
any Person that acquires a beneficial interest herein, agree that for United
States federal, state and local tax purposes it is intended that this Debenture
constitute indebtedness.
THIS DEBENTURE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE
STATE OF NEW YORK AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF SAID STATE, WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES THEREOF.
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FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers the
within 7 1/2% Junior Subordinated Deferrable Interest Debenture (the
"Debenture") and all rights thereunder, unto
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Please insert Social Security
or other identifying number of assignee:
------------------------------------------------------------
(Name and Address of Assignee, including Zip Code,
must be printed or typewritten)
and hereby irrevocably constitutes and appoints
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Attorney to transfer said Debenture on the Register of the Debentures, with full
power of substitution in the premises.
Date:
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Signature(s)
Signature(s) must be guaranteed by a
commercial bank or trust company or a
member firm of a major stock exchange.
NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within 7 1/2% Junior Subordinated
Deferrable Interest Debenture in every particular, without alteration
or enlargement or any change whatever.
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FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL DEBENTURE
TO REFLECT CHANGES IN PRINCIPAL AMOUNT
The initial principal amount evidenced by this Global Debenture is $________.
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Principal Amount by which this
Global Debenture is to be Reduced Remaining Principal Amount
and Reason for of this Global
Date Reduction Debenture Notation Made by
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