AMENDED AND RESTATED TRUST AGREEMENT
Exhibit
4(e)
AMENDED
AND RESTATED TRUST AGREEMENT
This
AMENDED AND RESTATED TRUST AGREEMENT, dated as of October 31, 2006 (this
"Agreement"), among (i) The Bear Xxxxxxx Companies Inc., a Delaware corporation,
as depositor (the "Depositor"), (ii) The Bank of New York, a New York banking
corporation, as the Property Trustee (the "Property Trustee"), and (iii) The
Bank of New York (Delaware), a Delaware banking corporation, as the Delaware
Trustee (the "Delaware Trustee") (the Property Trustee and the Delaware Trustee
being jointly referred to herein as the "Trustees"). The Depositor and the
Trustees hereby agree to amend and restate in its entirety the Trust Agreement
of Bear Xxxxxxx Capital Trust V (the "Trust"), dated as of November 4, 1998,
as
follows:
1.The
Trust
shall continue to be known as "Bear Xxxxxxx Capital Trust V" in which name
the
Trustees or the Depositor to the extent provided herein, may engage in the
transactions contemplated hereby, make and execute contracts, and xxx and be
sued on behalf of the Trust.
2.
The
Depositor previously assigned, transferred, conveyed and set over to the Trust
the sum of $10.00. Such amount constitutes the initial trust estate. It is
the
intention of the parties hereto that the Trust continued hereby constitute
a
statutory trust under Chapter 38 of' Title 12 of the Delaware Code, 12 Del.
C.§ 3801,
et seq. (the "Trust Act"), and that this document constitute the
governing instrument of the Trust. The Trustees, or either one of them, are
hereby authorized and directed to execute and file a restated certificate of
trust with the Delaware Secretary of State in accordance with the provisions
of
the Trust Act.
3.
The
Depositors, the Trustees and others will enter into a further amended and
restated Trust Agreement, satisfactory to each such party and substantially
in
the form included as an exhibit to the 1933 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the preferred securities (the "Preferred Securities")
and common securities referred to therein (collectively, the "Trust
Securities"). Prior to the execution and delivery of such restated Trust
Agreement, the Trustees shall not have any duty or obligation hereunder or
with
respect to the trust estate, except as otherwise required by applicable law
or
as may be necessary to obtain prior to such execution and delivery any licenses,
consents or approvals required by applicable law or otherwise.
4.
The
Depositor, as agent of the Trust, is hereby authorized (i) to file with the
Securities and Exchange Commission (the " Commission ") and execute, in each
case on behalf of the Trust, (a) the Registration Statement on Form S-3 (the
"1933 Act Registration Statement"), including any pre-effective or
post-effective amendments to the 1933 Act Registration Statement, relating
to
the registration under the Securities Act of 1933, as amended, of the preferred
securities of the Trust, and (b) a Registration Statement on Form 8-A (the
"1934
Act Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the preferred securities
of
the Trust under the Securities Exchange Act of 1934, as amended; (ii) to file
with the New York Stock Exchange, Inc. or any other national stock exchange
or
The Nasdaq National Market (each, an "Exchange") and execute on behalf of the
Trust one or more listing applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any of the
Exchanges; (iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary or
desirable to register the preferred securities under the securities or blue
sky
laws of such jurisdictions as the Depositor, on behalf of the Trust, may deem
necessary or desirable; (iv) to execute and deliver letters or documents to,
or
instruments for filing with, a depository relating to the preferred securities
of the Trust; and (v) to negotiate and execute on behalf of the Trust one or
more underwriting agreements, in customary form, relating to the Preferred
Securities.
It
is
hereby acknowledged and agreed that in connection with any document referred
to
in clauses (i), (ii) and (iii) above, the Trustees, in their capacities as
trustees of the Trust, shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required by the rules
and regulations of the Commission, the Exchanges or state securities or blue
sky
laws, and in such case only to the extent so required.
5.
This
Trust Agreement may be executed in one or more counterparts.
6.
The
number of Trustees initially shall be two (2), and thereafter the number of
Trustees shall be such number as shall be fixed from time to time by a written
instrument signed by the Depositor which may increase or decrease the number
of
Trustees; provided, however, that to the extent required by the Trust Act,
one
Trustee shall either be a natural person who is a resident of the State of
Delaware or, if not a natural person, an entity which has its principal place
of
business in the State of Delaware and otherwise meets the requirements of
applicable Delaware law. Subject to the foregoing, the Depositor is entitled
to
appoint or remove without cause any Trustee at any time. The Trustees may resign
upon thirty (30) days' prior notice to the Depositor, but such resignation
shall
not be effective until the Depositor has appointed a successor trustee and
such
successor trustee shall become a Trustee hereunder
7.
(a)
The Trustees and their officers, directors, agents and servants (collectively,
the "Fiduciary Indemnified Persons") shall not be liable, responsible or
accountable in damages or otherwise to the Trust, the Depositor, the Trustees
or
any holder of the Trust Securities for any loss, damage or claim incurred by
reason of any act or omission performed or omitted by the Fiduciary Indemnified
Persons in good faith on behalf of the Trust and in a manner the Fiduciary
Indemnified Persons reasonably believed to be within the scope of authority
conferred on the Fiduciary Indemnified Persons by this Trust Agreement or by
law, except that the Fiduciary Indemnified Persons shall be liable for any
such
loss, damage or claim incurred by reason of the Fiduciary Indemnified Person's
negligence, bad faith or willful misconduct with respect to such acts or
omissions.
(b)
The
Fiduciary Indemnified Persons shall be fully protected in relying in good faith
upon the records of the Trust and upon such information, opinions, reports
or
statements presented to the Trust by any person as to matters the Fiduciary
Indemnified Persons reasonably believe are within such other person's
professional or expert competence and who has been selected with reasonable
care by or on behalf of the Trust, 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 Trust Securities might properly be
paid.
(c)
The
Depositor agrees, to the fullest extent permitted by applicable law, (i) to
indemnify and hold harmless each Fiduciary Indemnified Person, or any of its
officers, directors, shareholders, employees, representatives or agents, from
and against any loss, damage, liability, tax, penalty, expense or claim of
any
kind or nature whatsoever incurred by the Fiduciary Indemnified Persons by
reason of the creation, operation or termination of the Trust, except that
no
Fiduciary Indemnified Persons shall be entitled to be indemnified in respect
of
any loss, damage or claim incurred by the Fiduciary Indemnified Persons by
reason of negligence, bad faith or willful misconduct with respect to such
acts
or omissions, and (ii) to advance expenses (including reasonable legal fees)
incurred by a Fiduciary Indemnified Person in defending any claim, demand,
action, suit or proceeding, from time to time, prior to the final disposition
of
such claim, demand, action, suit or proceeding, upon receipt by the Trust of
an
undertaking by or on behalf of such Fiduciary Indemnified Persons to repay
such
amount if it shall be determined that such Fiduciary Indemnified Person is
not
entitled to be indemnified as authorized in the preceding subsection. Promptly
after receipt by a Fiduciary Indemnified Person of notice of the commencement
of
any action, such Fiduciary Indemnified Person will, if a claim in respect
thereof is to be made against the Depositor under this clause (c), notify the
Depositor in writing of the commencement thereof, provided that failure to
give
such prompt notice shall not impair the obligations of the Depositor hereunder
except to the extent that such failure to provide notice materially prejudices
the Depositor. The Depositor shall be entitled to appoint counsel of the
Depositor's choice at the Depositor's expense to represent the Fiduciary
Indemnified Persons in any action for which indemnification is sought; provided,
however, that such counsel shall be satisfactory to the Fiduciary Indemnified
Persons. The Depositor will not, without the prior written consent of the
Fiduciary Indemnified Persons, settle or compromise or consent to the entry
of
any judgment with respect to any pending or threatened claim, action, suit
or
proceeding in respect of which indemnification may be sought unless such
settlement, compromise or consent includes an unconditional release of each
Fiduciary Indemnified Person from all liability arising out of such claim,
action, suit or proceeding.
8.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Delaware (without regard to conflict of laws
principles).
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be
duly
executed as of the day and year first above written.
THE
BEAR XXXXXXX COMPANIES
INC.,
as Depositor
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By: | /s/ XXXXXX X. XXXXXXXX XX. | |
Xxxxxx
X. Xxxxxxxx Xx.
Executive
Vice President and
Chief
Financial
Officer
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THE
BANK OF NEW YORK, as Property
Trustee
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By: | /s/ VAN X. XXXXX | |
Van
X. Xxxxx
Vice
President
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THE
BANK OF NEW YORK
(DELAWARE),
as Delaware Trustee
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By: | /s/ XXXXXXXX X. XXXXX | |
Xxxxxxxx
X. Xxxxx
Vice
President
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