Exhibit 4(a)(2)
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of January 29,
1998 (the "Supplement"), to the Indenture dated as of May 31, 1991 (the
"Indenture"), between The Bear Xxxxxxx Companies Inc., a Delaware corporation
(the "Company"), and The Chase Manhattan Bank, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company and the Trustee have heretofore entered
into the Indenture to provide for the issuance of the Company's Securities;
WHEREAS, Section 9.1(g) of the Indenture permits, without the
consent of any Holders of Securities, the Company, when authorized by a Board
Resolution, to enter into a supplemental indenture, inter alia, to correct or
supplement any provision of the Indenture with respect to matters or questions
arising thereunder which shall not adversely affect the interest of the Holders
of Securities of any series or any related coupons in any material respect;
WHEREAS, pursuant to the request of the Company, the Trustee
has agreed to amend certain provisions of the Indenture as set forth below and
to enter into a supplemental indenture to reflect such amendments to the
Indenture;
WHEREAS, the Trustee has received (i) an Opinion of Counsel
pursuant to Sections 1.2 and 9.3 of the Indenture stating that the execution of
this Supplemental Indenture is authorized or permitted by the Indenture and all
conditions precedent have been complied with, (ii) a copy of Board Resolutions
of the Company authorized the execution and delivery by the Company of this
Supplemental Indenture; and (iii) an Officers' Certificate pursuant to Section
1.2 of the Indenture; and
WHEREAS, all things necessary to make this Supplement a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS SUPPLEMENT WITNESSETH:
The Company covenants and agrees with the Trustee for the
equal and proportionate benefit of Holders of Securities as follows:
Exhibit 4(a)(2)
ARTICLE ONE
AMENDMENTS
Section 101. Section 1.1 of the Indenture is hereby amended by
deleting the definition of "Board of Directors" and replacing it in its entirety
with the following:
"Board of Directors" means the Board of Directors of
the Company, an Executive Committee of such Board of Directors
or any Executive Committee of the Company, or, with respect to
any series of Securities, any other committee of such Board of
Directors to which such Board of Directors has delegated the
authority to establish the terms and provisions of such series
of Securities."
Section 102. Section 6.8 of the Indenture is hereby amended by
deleting the entire Section 6.8 and replacing it in its entirety by the
following:
"The Trustee shall comply with the terms of Section
310(b) of the Trust Indenture Act. There shall be excluded
from the terms of Section 310(b) of the Trust Indenture Act,
the Indenture, dated as of April 13, 1989, pursuant to which
the Company's 9 1/2% Senior Notes Due 1998, and the Company's
Medium Term Notes, Series A were issued and are outstanding."
Section 103. Section 6.10 of the Indenture is hereby amended
by deleting the reference to Section 6.8(a) in subparagraph (d)(i) and replacing
it with "Section 6.8."
Section 104. Section 6.13 of the Indenture is hereby amended
by deleting Section 6.13 in its entirety and by renumbering Section 6.14 of the
Indenture as "Section 6.13".
Section 105. Section 7.3 of the Indenture is hereby amended by
deleting paragraphs (a) and (b) thereof in their entirety, relettering paragraph
(c) as paragraph (b), and inserting the following as paragraph (a):
"Within 60 days after May 15 in each
year, the Trustee shall transmit by mail to
all Holders, as their names and addresses
appear in the Security Register, a brief
report dated as of such May 15, in accordance
Exhibit 4(a)(2)
with, and to the extent required under,
Section 313 of the Trust Indenture Act."
Section 106. Section 10.5(a) of the Indenture is hereby
amended by deleting the words therein "Chairman of the Board, the President, any
Executive Vice President or the Senior Vice President-Finance and by the
Treasurer, an Assistant Treasurer, the Controller or an Assistant Controller of
the Company, stating as to each signer thereof" and replacing such words with
"principal executive officer, principal financial officer or principal
accounting officer of the Company".
ARTICLE TWO
MISCELLANEOUS
Section 201. Except as otherwise expressly provided or unless
the context otherwise requires, all terms used herein which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Section 202. This Supplement shall be effective as of the
close of business on the date hereof.
Section 203. The recitals contained herein shall be taken as
the statements of the Company, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Supplement.
Section 204. This Supplement shall be governed by and
construed in accordance with the laws of the jurisdiction which govern the
Indenture and its construction.
Section 205. This Supplement 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplement to be duly executed and their respective seals to be affixed hereunto
and duly attested all as of the day and year first above written.
The Bear Xxxxxxx Companies, Inc.
[Corporate Seal]
By /s/ Xxxxxx X. Xxxxxxxx, Xx.
----------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: Senior Vice President-
Finance and Chief
Financial Officer
Attest:
/s/ Xxxxxxx Xxxxx
-------------------------------
Secretary
The Chase Manhattan Bank,
as Trustee
[Corporate Seal]
By /s/ Xxxx X. Xxxxxxx
--------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
Attest:
/s/ Xxxxx X. Xxxxxxx
-------------------------------
Assistant Vice President
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