AMENDED AND RESTATED TRUST AGREEMENT
Exhibit
4(d)
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 IV (the "Trust"), dated as of November
4, 1998, as follows:
1. The
Trust
shall continue to be known as "Bear Xxxxxxx Capital Trust IV" 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 |
||
| |
|
|
| By: | /s/ XXXXXX X. XXXXXXXX XX. | |
|
Xxxxxx X. Xxxxxxxx Xx. |
||
|
Executive
Vice
President and
Chief
Financial Officer
|
||
|
THE
BANK OF NEW YORK,
as
Property
Trustee
|
||
| |
|
|
| By: | /s/ VAN X. XXXXX | |
|
Van X. Xxxxx |
||
| Vice President | ||
|
THE
BANK
OF
NEW YORK
(DELAWARE),
as Delaware Trustee
|
||
| |
|
|
| By: | /s/ XXXXXXXX X. XXXXX | |
|
Xxxxxxxx X. Xxxxx |
||
|
Vice
President
|
||
