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THE BEAR STEARNS COMPANIES INC.
and
THE CHASE MANHATTAN BANK
Trustee
INDENTURE
Dated as of __________, _____
JUNIOR SUBORDINATED DEBENTURES
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CROSS-REFERENCE TABLE
Trust Indenture Indenture
Act Section Section
--------------- -----------
310 (a)(1).................................................. 7.09
(a)(2).................................................. 7.09
(a)(3).................................................. Not Applicable
(a)(4).................................................. Not Applicable
(b)..................................................... 7.08, 7.10
(c)..................................................... Not Applicable
311 (a)..................................................... 7.13(a)
(b)..................................................... 7.13(b)
(c)..................................................... Not Applicable
312 (a)..................................................... 5.01, 5.02(a)
(b)..................................................... 5.02(b)
(c)..................................................... 5.02(c)
313 (a)..................................................... 5.04(a)
(b)(1).................................................. Not Applicable
(b)(2).................................................. 5.04(b)
(c)..................................................... 5.04(c)
(d)..................................................... 5.04(d)
314 (a)(1).................................................. 5.03(a)
(a)(2).................................................. 5.03(b)
(a)(3).................................................. 5.03(c)
(a)(4).................................................. 4.06
(b)..................................................... Not Applicable
(c)(1).................................................. 4.06
(c)(2).................................................. 4.05
(c)(3).................................................. Not Applicable
(d)..................................................... Not Applicable
(e)..................................................... 4.05
(f)..................................................... Omitted
315 (a)..................................................... 7.01
(b)..................................................... 6.07, 7.01(b)
(c)..................................................... 7.01
(d)..................................................... 7.01
(e)..................................................... 6.08
316 (a)(1).................................................. 6.06, 8.04
(a)(2).................................................. Omitted
(b)..................................................... 6.04
(c)..................................................... 10.05
317 (a)..................................................... 6.02
(b)..................................................... 4.04
318 (a)..................................................... 15.06
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Terms Defined........................................2
ARTICLE II
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION OF TRANSFER AND
EXCHANGE OF SECURITIES
SECTION 2.01. Amount, Series and Delivery of Securities....................10
SECTION 2.02. Form of Securities and Trustee's Certificate.................14
SECTION 2.03. Denominations of and Payment of Interest on Securities.......16
SECTION 2.04. Execution of Securities......................................17
SECTION 2.06. Temporary Securities.........................................19
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Securities..............20
SECTION 2.08. Cancellation and Destruction of Surrendered Securities.......21
SECTION 2.09. Authenticating Agents........................................21
SECTION 2.10. Deferrals of Interest Payment Dates..........................22
SECTION 2.11. Right of Set-Off.............................................24
SECTION 2.12. Shortening or Extension of Stated Maturity...................24
SECTION 2.13. Agreed Tax Treatment.........................................24
ARTICLE III
REDEMPTION OF SECURITIES
SECTION 3.01. Applicability of Article.....................................25
SECTION 3.02. Mailing of Notice of Redemption..............................25
SECTION 3.03. When Securities Called for Redemption Become Due and
Payable......................................................26
SECTION 3.04. Right of Redemption of Securities Initially Issued to a Bear
Stearns Trust................................................27
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal of and Interest on Securities...........28
SECTION 4.02. Maintenance of Offices or Agencies for Registration of
Transfer, Exchange and Payment of Securities.................28
SECTION 4.03. Appointment to Fill a Vacancy in the Office of Trustee.......28
SECTION 4.04. Duties of Paying Agent.......................................29
SECTION 4.05. Further Assurances...........................................30
SECTION 4.06. Officers' Certificate as to Defaults; Notices of Certain
Defaults.....................................................30
SECTION 4.07. Waiver of Covenants..........................................30
SECTION 4.08. Additional Sums..............................................30
SECTION 4.09. Additional Covenants.........................................31
ARTICLE V
SECURITYHOLDERS LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 5.01. Company to Furnish Trustee Information as to the Names and
Addresses of Securityholders ................................32
SECTION 5.02. Trustee to Preserve Information as to the Names and
Addresses of Securityholders Received by It .................33
SECTION 5.03. Annual and Other Reports to Be Filed by Company with
Trustee .....................................................34
SECTION 5.04. Trustee to Transmit Annual Report to Securityholders.........35
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. Events of Default Defined....................................36
SECTION 6.02. Covenant of Company to Pay to Trustee Whole Amount Due on
Securities or Default in Payment of Interest or Principal ...39
SECTION 6.03. Application of Moneys Collected by Trustee...................41
SECTION 6.04. Limitation on Suits by Holders of Securities.................41
SECTION 6.05. On Default Trustee May Take Appropriate Action...............42
SECTION 6.06. Rights of Holders of Majority in Principal Amount of
Securities to Direct Trustee and to Waive Default ...........43
SECTION 6.07. Trustee to Give Notice of Defaults Known to It, but May
Withhold in Certain Circumstances ...........................44
SECTION 6.08. Requirement of an Undertaking to Pay Costs in Certain
Suits under the Indenture or against the Trustee ............44
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ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01. Upon Event of Default Occurring and Continuing, Trustee
Shall Exercise Powers Vested in It, and Use Same Degree
of Care and Skill in Their Exercise, as a Prudent Man
Would Use....................................................45
SECTION 7.02. Reliance on Documents, Opinions, Etc.........................46
SECTION 7.03. Trustee Not Liable for Recitals in Indenture or in
Securities ..................................................47
SECTION 7.04. May Own Securities...........................................47
SECTION 7.05. Moneys Received by Trustee to Be Held in Trust without
Interest ....................................................47
SECTION 7.06. Trustee Entitled to Compensation, Reimbursement and
Indemnity ...................................................47
SECTION 7.07. Right of Trustee to Rely on Officers' Certificate Where
No Other Evidence Specifically Prescribed ...................48
SECTION 7.08. Disqualification; Conflicting Interests......................48
SECTION 7.09. Requirements for Eligibility of Trustee......................49
SECTION 7.10. Resignation of Trustee.......................................49
SECTION 7.11. Acceptance by Successor Trustee..............................50
SECTION 7.12. Successor to Trustee by Merger, Consolidation or
Succession to Business ......................................52
SECTION 7.13. Limitations on Rights of Trustee as a Creditor to Obtain
Payment of Certain Claims within Three Months Prior to
Default or During Default, or to Realize on Property as
such Creditor Thereafter.....................................52
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Evidence of Action by Securityholders........................56
SECTION 8.02. Proof of Execution of Instruments and of Holding of
Securities ..................................................56
SECTION 8.03. Who May be Deemed Owners of Securities.......................57
SECTION 8.04. Securities Owned by Company or Controlled or Controlling
Persons Disregarded for Certain Purposes ....................57
SECTION 8.05. Instruments Executed by Securityholders Bind Future
Holders .....................................................58
ARTICLE IX
SECURITYHOLDERS' MEETINGS
SECTION 9.01. Purposes for which Meeting May Be Called.....................58
SECTION 9.02. Manner of Calling Meetings...................................59
SECTION 9.03. Call of Meeting by Company or Securityholders................59
SECTION 9.04. Who May Attend and Vote at Meetings..........................59
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SECTION 9.05. Regulations May Be Made by Trustee...........................59
SECTION 9.06. Manner of Voting at Meetings and Record to be Kept...........60
SECTION 9.07. Exercise of Rights of Trustee, Securityholders and Holders
of Preferred Securities Not to Be Hindered or Delayed .......61
ARTICLE X
SUPPLEMENTAL INDENTURES
SECTION 10.01. Purposes for Which Supplemental Indentures May Be Entered
into without Consent of Securityholders .....................61
SECTION 10.02. Modification of Indenture with Consent of Holders of a
Majority in Principal Amount of Securities ..................63
SECTION 10.03. Effect of Supplemental Indentures............................64
SECTION 10.04. Securities May Bear Notation of Changes by Supplemental
Indentures ..................................................65
SECTION 10.05. Revocation and Effect of Consents............................65
ARTICLE XI
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 11.01. Company May Consolidate, Etc., on Certain Terms..............66
SECTION 11.02. Successor Corporation Substituted............................66
SECTION 11.03. Opinion of Counsel to Trustee................................67
ARTICLE XII
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 12.01. Satisfaction and Discharge of Indenture......................67
SECTION 12.02. Application by Trustee of Funds Deposited for Payment of
Securities ..................................................68
SECTION 12.03. Repayment of Moneys Held by Paying Agent.....................68
SECTION 12.04. Repayment of Moneys Held by Trustee..........................68
ARTICLE XIII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS,
DIRECTORS AND EMPLOYEES
SECTION 13.01. Incorporators, Stockholders, Officers, Directors and
Employees of Company Exempt from Individual Liability .......68
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ARTICLE XIV
SUBORDINATION OF SECURITIES
SECTION 14.01. Agreement to Subordinate.....................................69
SECTION 14.02. Obligation of the Company Unconditional......................71
SECTION 14.03. Limitations on Duties to Holders of Senior Indebtedness
of the Company ..............................................71
SECTION 14.04. Notice to Trustee of Facts Prohibiting Payment...............71
SECTION 14.05. Application by Trustee of Moneys Deposited with It...........72
SECTION 14.06. Subrogation..................................................72
SECTION 14.07. Subordination Rights Not Impaired by Acts or Omissions
of Company or Holders of Senior Indebtedness of the
Company .....................................................72
SECTION 14.08. Authorization of Trustee to Effectuate Subordination
of Securities ...............................................73
SECTION 14.09. No Payment when Senior Indebtedness in Default...............73
SECTION 14.10. Right of Trustee to Hold Senior Indebtedness of the
Company .....................................................73
SECTION 14.11. Article XIV Not to Prevent Defaults..........................74
ARTICLE XV
CONVERSION OF SECURITIES
SECTION 15.01. Applicability of Article.....................................74
SECTION 15.02. Conversion Privilege.........................................74
SECTION 15.03. Exercise of Conversion Privilege.............................74
SECTION 15.04. Fractional Interests.........................................75
SECTION 15.05. Conversion Price.............................................76
SECTION 15.06. Adjustment of Conversion Price...............................76
SECTION 15.07. Continuation of Conversion Privilege in Case of
Reclassification, Change, Merger, Consolidation or
Sale of Assets ..............................................79
SECTION 15.08. Notice of Certain Events.....................................80
SECTION 15.09. Taxes on Conversion..........................................81
SECTION 15.10. Company to Provide Stock.....................................81
SECTION 15.11. Disclaimer of Responsibility for Certain Matters.............82
SECTION 15.12. Return of Funds Deposited for Redemption of Converted
Securities ..................................................82
ARTICLE XVI
MISCELLANEOUS PROVISIONS
SECTION 16.01. Successors and Assigns of Company Bound by Indenture.........82
SECTION 16.02. Acts of Board, Committee or Officer of Successor
Corporation Valid ...........................................82
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SECTION 16.03. Required Notices or Demands May Be Served by Mail............83
SECTION 16.04. Officers' Certificate and Opinion of Counsel to Be
Furnished upon Applications or Demands by the Company .......83
SECTION 16.05. Payments Due on Saturdays, Sundays, and Holidays.............84
SECTION 16.06. Provisions Required by Trust Indenture Act of 1939 to
Control .....................................................84
SECTION 16.07. Indenture and Securities to be Construed in Accordance
with the Laws of the State of New York ......................84
SECTION 16.08. Provisions of the Indenture and Securities for the Sole
Benefit of the Parties and the Securityholders ..............85
SECTION 16.09. Indenture May be Executed in Counterparts....................85
SECTION 16.10. Securities in Foreign Currencies.............................85
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THIS INDENTURE, dated as of the __th day of ________, ____ between THE BEAR
STEARNS COMPANIES INC., a corporation duly organized and existing under the laws
of the State of Delaware (hereinafter sometimes referred to as the "Company"),
party of the first part, and THE CHASE MANHATTAN BANK, a banking corporation
duly organized and existing under the laws of the State of New York (hereinafter
sometimes referred to as the "Trustee"), party of the second part,
W I T N E S S E T H:
WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the issuance from time to time of its unsecured subordinated debentures or other
evidences of indebtedness (hereinafter referred to as the "Securities"), without
limit as to principal amount, issuable in one or more series, the amount and
terms of each such series to be determined as hereinafter provided, including,
without limitation, Securities issued to evidence loans made to the Company of
the proceeds from the issuance from time to time by one or more business trusts
(each a "Bear Stearns Trust" and collectively, the "Bear Stearns Trusts" or the
"Trusts") of preferred interests in such Trusts (the "Preferred Securities"
which may also be referred to, without limitation, as the "Capital Securities")
and common interests in such Trusts (the "Common Securities," and collectively
with the Preferred Securities, the "Trust Securities"); to be authenticated by
the certificate of the Trustee; and, to provide the terms and conditions upon
which the Securities are to be authenticated, issued and delivered, the Company
has duly authorized the execution of this Indenture; and
WHEREAS, all acts and things necessary to make the Securities when executed
by the Company and authenticated and delivered by the Trustee as in this
Indenture provided, the valid, binding and legal obligations of the Company, and
to constitute these presents a valid indenture and agreement according to its
terms, have been done and performed and the execution of this Indenture and the
issue hereunder of the Securities have in all respects been duly authorized, and
the Company, in the exercise of the legal rights and power vested in it,
executes this Indenture and proposes to make, execute, issue and deliver the
Securities;
NOW, THEREFORE, in order to declare the terms and conditions upon which the
Securities are authenticated, issued and delivered, and in consideration of the
premises and of the purchase and acceptance of the Securities by the holders
thereof, the Company covenants and agrees with the Trustee, for the equal and
proportionate benefit of the respective holders from time to time of the
Securities or of series thereof, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Terms Defined.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings assigned to them in
this Article, and include the plural as well as the singular;
(b) All other terms used herein which are defined in the Trust Indenture
Act of 1939, as amended, either directly or by reference therein, have the
meanings assigned to them therein;
(c) All accounting terms used herein and not expressly defined herein shall
have the meanings assigned to them in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
with respect to any computation required or permitted hereunder shall mean such
accounting principles which are generally accepted at the date or time of such
computation; and
(d) The terms "herein," "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
"Additional Interest" shall mean the interest, if any, that shall accrue on
any interest on the Securities of any series the payment of which has not been
made on the applicable interest payment date and which shall accrue at the rate
per annum specified or determined as specified in such Security.
"Additional Sums" shall have the meaning specified in Section 4.08.
"Administrator" shall mean, in respect of any Bear Stearns Trust each
Person identified as an "Administrator" in the related Trust Agreement, solely
in such Person's capacity as Administrator of such Bear Stearns Trust under such
Trust Agreement and not in such Person's individual capacity, or any successor
administrative trustee appointed as therein provided.
"Authenticating Agent" shall mean any Authenticating Agent appointed by the
Trustee pursuant to Section 2.09.
"Authorized Newspaper" shall mean a newspaper in the Borough of Manhattan,
The City of New York, State of New York, each of which is printed in the English
language and customarily published at least once a day for at least five days in
each calendar week and of general circulation in such city. Whenever successive
publications are required to be made in an Authorized Newspaper, the successive
publications may be made in the same or in a
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different newspaper meeting the foregoing requirements and in each case on any
day of the week. If it is impossible or, in the opinion of the Trustee,
impracticable to publish any notice in the manner herein provided, then such
publication in lieu thereof as shall be made with the approval of the Trustee
shall constitute a sufficient publication of such notice.
"Bear Stearns Guarantee" shall mean the guarantee by the Company of
distributions on the Preferred Securities of a Bear Stearns Trust to the extent
provided in the applicable Guarantee Agreement.
"Bear Stearns Trust" shall mean a Delaware business trust, or any similar
trust created for the purpose of issuing Preferred Securities in connection with
the issuance of Securities under this Indenture of which the Company is the
sponsor.
"Board of Directors," when used with reference to the Company, shall mean
the Board of Directors of the Company or the Executive Committee or any other
committee of or created by the Board of Directors of the Company duly authorized
to act hereunder.
"Business Day" shall mean any day which is not a Saturday or Sunday and
which in the City of New York is neither a legal holiday nor a day on which
banking institutions are authorized by law or executive order to close or a day
on which the corporate trust office of the Trustee is closed for business.
"Capital Stock" shall mean shares of capital stock of any class of any
corporation whether now or hereafter authorized regardless of whether such
capital stock shall be limited to a fixed sum or percentage in respect of the
rights of the holders thereof to participate in dividends and in the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up.
"Commission" shall mean the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act of 1939, then the body performing such duties on such
date.
"Common Stock" shall mean the common stock, par value $1.00 per share, of
the Company.
"Company" shall mean The Bear Stearns Companies Inc., a corporation duly
organized and existing under the laws of the State of Delaware and, subject to
the provisions of Article XI, shall also include its successors and assigns.
"Compounded Interest" shall mean with respect to any series of Securities
any interest designated as Compounded Interest with respect to the Securities of
such series as contemplated by Section 2.01.
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"Depositary" shall mean, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more global
Securities, the person designated as Depositary by the Company pursuant to
Section 2.01 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter the term "Depositary"
shall mean or include each person who is then a Depositary hereunder and if at
any time there is more than one such person, the term "Depositary" as used with
respect to the Securities of any series shall mean the Depositary with respect
to the Securities of such series.
"Distributions," with respect to the Trust Securities issued by a Bear
Stearns Trust shall mean amounts payable in respect of such Trust Securities as
provided in the related Trust Agreement and referred to therein as
"Distributions."
"Event of Default" with respect to Securities of any series shall mean any
event specified as such in Section 6.01 and any other event as may be
established with respect to the Securities of such series as contemplated by
Section 2.01.
"Existing Indenture" shall mean the Indenture, dated as of January 29,
1997, between the Company and The Chase Manhattan Bank, as trustee, as amended
or supplemented from time to time.
"Extension Period" has the meaning specified in Section 2.10.
"Guarantee Agreement" shall mean the guarantee agreement executed by the
Company of distributions on the Preferred Securities of a Bear Stearns Trust to
the extent provided in any Bear Stearns Guarantee.
"Indenture" shall mean this instrument as originally executed, or, if
amended or supplemented as herein provided, then as so amended or supplemented,
and shall include the form and terms of particular series of Securities
established as contemplated by Sections 2.01 and 2.02.
"Indebtedness" or "indebtedness" shall mean with respect to any person,
whether recourse is to all or a portion of the assets of such person and whether
or not contingent, (i) every obligation of such person for money borrowed; (ii)
every obligation of such person evidenced by bonds, debentures, notes or other
similar instruments, including obligations incurred in connection with the
acquisition of property, assets or businesses; (iii) every reimbursement
obligation of such person with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of such person; (iv)
every obligation of such person issued or assumed as the deferred purchase price
of property or services (but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business); (v) every capital lease
obligation of such person; (vi) every obligation of such person for claims in
respect of derivative products such as interest and foreign exchange rate
contracts, commodity contracts and similar arrangements; and (vii) and every
obligation of the type referred to in clauses (i) through (vi) of another person
and all dividends of another person the payment of which, in either case, such
person has guaranteed or is responsible or liable, directly or indirectly, as
obligor or otherwise.
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"Investment Company Event" shall mean the receipt by a Bear Stearns Trust
of an Opinion of Counsel (as defined in the relevant Trust Agreement)
experienced in such matters 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 such Bear Stearns Trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company 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 such Bear Stearns Trust.
"Maturity" when used with respect to any Security shall mean the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"1940 Act" shall mean the Investment Company Act of 1940, as amended.
"Officers' Certificate" shall mean a certificate signed by the 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
Offer of the Company (whether or not designated by a number or a word or words
added before or after the title Vice President) and by the Treasurer or an
Assistant Treasurer, Controller or the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee. Each such certificate shall include
the statements provided for in Section 16.04, if and to the extent required by
the provisions thereof and will comply with Section 314 of the Trust Indenture
Act of 1939.
"Opinion of Counsel" shall mean an opinion in writing signed by legal
counsel, who shall be satisfactory to the Trustee, and who may be an employee
of, or counsel to, the Company and delivered to the Trustee. Each such opinion
shall include the statements provided for in Section 16.04, if and to the extent
required by the provisions thereof and will comply with Section 314 of the Trust
Indenture Act of 1939.
"Original Issue Date" shall mean the first date of issuance of each
Security.
"Original Issue Discount Security" shall mean any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
declaration pursuant to Section 6.01.
"Paying Agent" shall mean the Trustee or any Person authorized by the
Company to pay the principal or interest on any Securities on behalf of the
Company.
"Person" or "person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
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"Preferred Securities" shall mean undivided beneficial interests in the
assets of a Bear Stearns Trust which rank pari passu with Common Securities
issued by such Bear Stearns Trust; provided, however, that upon the occurrence
of an Event of Default (as defined in the Trust Agreement with respect to such
Bear Stearns Trust), the rights of holders of such Common Securities to payment
in respect of distributions and payments upon liquidation, redemption and
otherwise are subordinated to the rights of holders of such Preferred
Securities.
"Preferred Securities Guarantee" shall mean, in respect of any Bear Stearns
Trust, any guarantee that the Company may enter into with The Chase Manhattan
Bank or other Persons that operates directly or indirectly for the benefit of
holders of Preferred Securities of such Bear Stearns Trust.
"Principal," wherever used with reference to the Securities or any Security
or any portion thereof, shall be deemed to include "and premium, if any."
"Property Trustee" shall mean, in respect of any Bear Stearns Trust, the
commercial bank or trust company identified as the "Property Trustee" in the
related Trust Agreement, solely in its capacity as Property Trustee of such Bear
Stearns Trust under such Trust Agreement and not in its individual capacity, or
its successor in interest in such capacity, or any successor property trustee
appointed as therein provided.
"Ranking junior to the Securities" when used with respect to any obligation
of the Company shall mean any obligation of the Company which (a) ranks junior
to and not equally with or prior to the Securities (or any other obligations of
the Company ranking on a parity with the Securities) in right of payment upon
the happening of any event of the kind specified in the first sentence of the
first paragraph of Section 14.01, and (b) is specifically designated as ranking
junior to the Securities by express provision in the instrument creating or
evidencing such obligation.
The securing of any obligations of the Company, otherwise ranking junior to
the Securities, shall be deemed to prevent such obligations from constituting
obligations ranking junior to the Securities.
"Ranking on a parity with the Securities" when used with respect to any
obligation of the Company shall mean any obligation of the Company which (a)
ranks equally with and not prior to the Securities in right of payment upon the
happening of any event of the kind specified in the first sentence of the first
paragraph of Section 14.01, including without limitation, the obligation of the
Company under the EPICs Loan Agreement (as such term is defined within the
definition of "Senior Indebtedness of the Company" below) and (b) is
specifically designated as ranking on a parity with the Securities by express
provision in the instrument creating or evidencing such obligation.
The securing of any obligations of the Company, otherwise ranking on a
parity with the Securities, shall not be deemed to prevent such obligations from
constituting obligations ranking on a parity with the Securities.
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"Register" shall have the meaning specified in Section 2.05.
"Resolution of the Company" shall mean a resolution of the Company, in the
form of a resolution of the Board of Directors or in the form of a resolution of
senior officers of the Company pursuant to the Bylaws, authorizing, ratifying,
setting forth or otherwise validating agreements, execution and delivery of
documents, the issuance, form and terms of securities, or any other actions or
proceedings pursuant or with respect to this Indenture.
"Responsible Officer," when used with respect to the Trustee, shall mean
the Chairman and Vice Chairman of the Board of Directors, the President, the
Chairman and vice chairman of the executive committee of the Board of Directors,
every Vice President or officer senior thereto, every assistant Vice President,
the Secretary, every Assistant Secretary, the Treasurer, every assistant
Treasurer, every Corporate Trust Officer, every Assistant Corporate Trust
Officer, and every other officer and assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his knowledge of, and familiarity with, a
particular subject.
"Rights Plan" shall mean a plan of the Company providing for the issuance
by the Company to all holders of its Common Stock of rights entitling the
holders thereof to subscribe for or purchase shares of Common Stock or any class
or series of preferred stock, which rights (i) are deemed to be transferred with
such shares of Common Stock, (ii) are not exercisable and (iii) are also issued
in respect of future issuances of Common Stock, in each case until the
occurrence of a specified event or events.
"Security" or "Securities" shall mean any security or securities of the
Company, as the case may be, without regard to series, authenticated and
delivered under this Indenture.
"Outstanding," when used with reference to Securities, shall, subject to
the provisions of Section 8.04, mean as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except
(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of which
moneys in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been set
aside and segregated in trust by the Company (if the Company shall act as its
own paying agent), provided that such Securities shall have reached their Stated
Maturity or, if such Securities are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as in Article III
provided, or provision satisfactory to the Trustee shall have been made for
giving such notice; and
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(c) Securities in lieu of or in substitution for which other Securities
shall have been authenticated and delivered or which have been paid pursuant to
the terms of Section 2.07 unless proof satisfactory to the Trustee is presented
that any such Securities are held by persons in whose hands any of such
Securities is a valid, binding and legal obligation of the Company.
In determining whether the holders of the requisite principal amount of
outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, the principal amount of an Original Issue
Discount Security that shall be deemed to be outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the maturity
thereof pursuant to Section 6.01.
"Securityholder," "holder of Securities," "registered holder" or other
similar term, shall mean any person who shall at the time be the registered
holder of any Security or Securities on the Register kept for that purpose in
accordance with the provisions of this Indenture.
"Senior Indebtedness of the Company" shall mean the principal of and
premium, if any, and interest, if any (including interest accruing on or after
the filing of any petition in bankruptcy or for reorganization relating to the
Company whether or not such claim for post-petition interest is allowed in such
proceeding), on Indebtedness, whether incurred on or prior to the date of the
Indenture or thereafter incurred, unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that such obligations are not superior in right of payment to the Securities or
to other Indebtedness which is pari passu with, or subordinated to, the
Securities; provided, however, that Senior Indebtedness shall not be deemed to
include (i) any Indebtedness of the Company which when incurred and without
respect to any election under Section 1111(b) of the Federal Bankruptcy Code was
without recourse to the Company, (ii) any Indebtedness of the Company to any of
its subsidiaries, (iii) Indebtedness to any employee of the Company, (iv)
Indebtedness which by its terms is subordinated to trade accounts payable or
accrued liabilities arising in the ordinary course of business to the extent
that payments made to the holders of such Indebtedness by the holders of the
Securities as a result of the subordination provisions of the Indenture would be
greater than such payments otherwise would have been as a result of any
obligation of such holders of such Indebtedness to pay amounts over to the
obligees on such trade accounts payable or accrued liabilities arising in the
ordinary course of business as a result of subordination provisions to which
such Indebtedness is subject, and (v) any other debt securities issued pursuant
to the Indenture or the Existing Indenture. The Securities of all series will
rank pari passu with, and will not be superior in right of payment to, the
obligation of the Company under the Loan Agreement (the "EPICS Loan Agreement")
dated as of February 24, 1994, between the Company and Bear Stearns Finance LLC
("BS Finance") in the aggregate principal amount of $189,875,000 (the "EPICS
Loan") entered into in connection with the issuance by BS Finance of 6,000,000
shares of 8% Exchangeable Preferred Income Cumulative Shares ("EPICS"), Series A
(having an aggregate liquidation preference of $150,000,000).
-8-
"Special Event" shall mean an Investment Company Event or a Tax Event.
"Special Interest" shall mean with respect to any series of Securities any
interest designated as Special Interest with respect to the Securities of such
series as contemplated by Section 2.01.
"Stated Maturity" when used with respect to any Security or any installment
of principal thereof or interest thereon shall mean the date specified pursuant
to the terms of such Security as the date on which the principal of such
Security or such installment of interest is due and payable in the case of such
principal, as such date may be shortened or extended as provided pursuant to the
terms of such Security and this Indenture.
"Subsidiary" shall mean a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For purposes of this definition, "voting stock" means stock which
ordinarily has voting power for the election of directors, whether at all times
or only so long as no senior class of stock has such voting power by reason of
any contingency.
"Tax Event" shall mean the receipt by a Bear Stearns Trust of an Opinion of
Counsel (as defined in the relevant Trust Agreement) experienced in such matters
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 date of issuance of the Preferred Securities of such Bear Stearns Trust,
there is more than an insubstantial risk that (i) the Bear Stearns Trust is, or
will be within 90 days of the date of such Opinion of Counsel, subject to United
States federal income tax with respect to income received or accrued on the
corresponding series of Securities issued by the Company to such Bear Stearns
Trust, (ii) interest payable by the Company on such corresponding series of
Securities is not, or within 90 days of the date of such Opinion of Counsel,
will not be, deductible, in whole or in part, for United States federal income
tax purposes, or (iii) the Bear Stearns Trust is, or will be within 90 days of
the date of such Opinion of Counsel, subject to more than a de minimis amount of
taxes, duties or governmental charges.
"Trust Agreement" shall mean any Trust Agreement governing any Bear Stearns
Trust whether now existing or created in the future, relating to the Securities
of any series.
"Trustee" shall mean The Chase Manhattan Bank and, subject to the
provisions of Article VII, shall also include its successors. The term
"principal office" of the Trustee shall mean the corporate trust office of the
Trustee at which the corporate trust business of the Trustee shall, at any
particular time, be principally administered. The present address of the office
at which the corporate trust business of the Trustee is administered is 450 West
33rd Street, 15th Floor, New York, New York 10001.
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"Trust Indenture Act of 1939" shall mean the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, as in force at the date as
of which this Indenture was originally executed.
"Trust Securities" shall mean the Common Securities and Preferred
Securities of a Bear Stearns Trust.
ARTICLE II
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION OF
TRANSFER AND EXCHANGE OF SECURITIES
SECTION 2.01. Amount, Series and Delivery of Securities.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. The terms of each
series (which terms shall not be inconsistent with the provisions of this
Indenture) including:
(1) The designation of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities and
which shall include the word "subordinated" or a word of like meaning);
(2) Any limit upon the aggregate principal amount of the
Securities of the series which may be executed, authenticated and
delivered under this Indenture; provided, however, that nothing
contained in this Section or elsewhere in this Indenture or in the
Securities or in such resolution or in such certificate is intended to
or shall limit execution by the Company or authentication and delivery
by the Trustee of Securities under the circumstances contemplated by
Sections 2.05, 2.06, 2.07, 3.02, 3.03 and 10.04;
(3) The date or dates (if any) on which the principal of the
Securities of the series is payable;
(4) The rate or rates at which the Securities of the series shall
bear interest, if any, including Additional Sums, Additional Interest,
Compounded Interest and Special Interest, if any, the date or dates
from which such interest shall accrue, the dates on which such interest
shall be payable and the record date for the interest payable on any
interest payment date and the right to defer the payment of interest in
accordance with Section 2.10;
(5) The place or places where Securities of the series may be
presented for payment and for the other purposes provided in Section
4.02;
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(6) Any price or prices at which, any period or periods within
which, and any terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(7) The type or types (if any) of Capital Stock of the Company
into which, any period or periods within which, and any terms and
conditions upon which Securities of the series may be made payable,
converted, exchanged in whole or in part, at the option of the holder
or of the Company;
(8) If other than denominations of $1,000 and any whole multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) If other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to
Section 6.01;
(10) If other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public
or private debts, the coin or currency (which may be a composite
currency) in which payment of the principal of (and premium, if any)
and interest, if any, on the Securities of that series shall be
payable;
(11) If the principal of (and premium, if any) or interest, if
any, on the Securities of that series are to be payable, at the
election of the Company or a holder thereof, in a coin or currency
(including a composite currency) other than that in which the
Securities are stated to be payable, the period or periods within
which, and the terms and conditions upon which, such election may be
made;
(12) If the amounts of payments of principal of (and premium, if
any) or interest, if any, on the Securities of the series may be
determined with reference to an index based on a coin or currency
(including a composite currency) other than that in which the
Securities are stated to be payable, the manner in which such amounts
shall be determined;
(13) If the Securities of the series are payable at maturity or
upon earlier redemption in Capital Stock, the terms and conditions upon
which such payment shall be made;
(14) The person or persons who shall be registrar for the
Securities of the series, and the place or places where the Register of
the Securities of the series shall be kept;
(15) Any Events of Default with respect to the Securities of a
particular series, if not set forth herein;
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(16) Whether any Securities of the series are to be issuable in
global form with or without coupons, and, if so, the Depositary for
such global Securities and whether beneficial owners of interests in
any such global Security may exchange such interests for definitive
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which, and the place or places
where, any such exchanges may occur, if other than in the manner
provided in Section 2.05;
(17) The form of Trust Agreement and Guarantee Agreement, if
applicable;
(18) If applicable, the relative degree to which Securities of the
series shall be senior to or be subordinated to other Series of such
Securities or other indebtedness of the Company in right of payment,
whether such other series of Securities or other indebtedness are
outstanding or not; and
(19) Whether the Securities of the series are to be issued
pursuant to an exemption from registration under the Securities Act;
and
(20) Any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture);
or in any case, the method for determining such terms, the persons authorized to
determine such terms and the limits, if any, within which any such determination
of such terms is to be made shall either be established in or pursuant to a
Resolution of the Company and set forth in an Officers' Certificate, or set
forth in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series.
The Securities of all series shall be subordinate to Senior Indebtedness of
the Company as provided in Article XIV. The applicable Officers' Certificate or
supplemental indenture may provide that Securities of any particular series may
be issued at various times, with different dates on which the principal or any
installment of principal is payable, with different rates of interest, if any,
or different methods by which interest may be determined, with different dates
from which such interest shall accrue, with different dates on which such
interest may be payable or with any different terms other than Events of Default
but all such Securities of a particular series shall for all purposes under this
Indenture including, but not limited to, voting and Events of Default, be
treated as Securities of a single series.
If any of the terms of the series are established by action taken pursuant
to a Resolution of the Company, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate or supplemental indenture setting forth the terms of the series.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication by it, and the Trustee shall thereupon
authenticate and deliver said
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Securities to or upon the written order of the Company, signed by its Chairman
of the Board, any Vice Chairman of the Board, its President, any Vice Chairman,
any Executive Vice President, the Chief Operating Officer or the Chief Financial
Officer of the Company, and by its Treasurer or an Assistant Treasurer,
Controller or its Secretary or an Assistant Secretary, without any further
corporate action by the Company. If the form or terms of the Securities of the
series have been established in or pursuant to one or more Resolutions of the
Company and set forth in an Officers' Certificate or set forth in one or more
indentures supplemental hereto, as permitted by this Section and Section 2.02,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 7.01) shall be fully protected in
relying upon:
(a) an Opinion of Counsel stating:
(i) If the form or terms of such Securities have been established
by or pursuant to Resolutions of the Company as permitted by Section
2.02 and set forth in an Officers' Certificate, that such form and
terms have been established in conformity with the provisions of this
Indenture;
(ii) If the form or terms of such Securities have been established
by or pursuant to a Resolution of the Company and set forth in one or
more indentures supplemental hereto as permitted by Section 2.02, that
such form and terms have been established in conformity with the
provisions of this Indenture;
(iii) That such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute legal,
valid and binding obligations of the Company, enforceable in accordance
with their terms, entitled to the benefits of the Indenture, subject to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting the enforcement of creditors'
rights and to general equity principles;
(iv) If the form or terms of such Securities provide for the
conversion of such Securities into shares of Capital Stock of the
Company, or the payment in Capital Stock upon maturity or earlier
redemption of the Securities, that the Company has reserved a number of
shares of Capital Stock sufficient for issuance upon such conversion or
payment, and such shares of Capital Stock are fully paid and
nonassessable; and
(v) Such other matters as the Trustee may reasonably request.
(b) An Officers' Certificate setting forth the form and terms of the
Securities of such series pursuant to Section 2.01 and Section 2.02 hereof (but
only if the form and terms of the Securities of such series are not set forth in
one or more supplemental indentures hereto) and stating that all conditions
precedent provided for in this Indenture relating to the authentication and
delivery of such Securities have been complied with, that no Event of
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Default with respect to any series of Securities has occurred and is continuing
and that the issuance of such Securities is not and will not result in (i) an
Event of Default or an event or condition which, upon the giving of notice (or
the acquisition of knowledge) or the lapse of time or both, would become an
Event of Default or (ii) a default under the provisions of any other instrument
or agreement by which the Company is bound.
The Trustee shall not be required to authenticate such Securities if the
issue of such Securities pursuant to this Indenture will affect the Trustee's
own rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
If all the Securities of any series are not to be issued at one time, it
shall not be necessary to deliver either an Opinion of Counsel or an Officers'
Certificate at the time of issuance of each Security, provided that such Opinion
of Counsel and Officers' Certificate, with appropriate modifications, are
instead delivered at or prior to the time of issuance of the first Security of
such series.
Each Security shall be dated the date of its authentication.
SECTION 2.02. Form of Securities and Trustee's Certificate.
The Securities of each series shall be substantially of the tenor and
purport as shall be authorized in or pursuant to a Resolution of the Company and
set forth in an Officers' Certificate or set forth in an indenture or indentures
supplemental hereto in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
or designation and such legends or endorsements thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Indenture,
or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which
the Securities may be listed, or to conform to usage. If the form of Securities
of any series is authorized by action taken pursuant to a Resolution of the
Company, a copy of an appropriate record of such action shall be certified by
the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Officers' Certificate contemplated by
Section 2.01 setting forth the terms of the series.
The Securities may be printed, lithographed or fully or partly engraved.
The Trustee's certificate of authentication shall be in substantially the
following form:
"This is one of the Securities, of the series designated therein, referred
to in the within-mentioned Indenture.
-14-
THE CHASE MANHATTAN BANK,
as Trustee
By _____________________________
Authorized Officer"
If Securities of a series are issuable in global form, as specified
pursuant to Section 2.01, then, notwithstanding clause (8) of Section 2.01 and
the provisions of Section 2.03, such Security shall represent such of the
outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of outstanding Securities
from time to time endorsed thereon and that the aggregate amount of outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount,
or any increase or decrease in the amount, of outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given
by such person or persons as shall be specified in such Security or by the
Company. Subject to the provisions of Section 2.04 and, if applicable, Section
2.06, the Trustee shall deliver and redeliver any Security in global form in the
manner and upon written instructions given by the person or persons specified in
such Security or by the Company. Any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form after the
original issuance of the Securities of such series shall be in writing but need
not comply with Section 16.04 and need not be accompanied by an Opinion of
Counsel.
Unless otherwise specified pursuant to Section 2.01, payment of principal
of and any premium and any interest on any Security in global form shall be made
to the person or persons specified therein.
The owners of beneficial interests in any global Security shall have no
rights under this Indenture with respect to any global Security held on their
behalf by a Depositary, and such Depositary may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the sole holder and
owner of such global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by a Depositary, or impair, as between a
Depositary and its participants in any global Security, the operation of
customary practices governing the exercise of the rights of a holder of a
Security of any series, including, without limitation, the granting of proxies
or other authorization of participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action that a holder
is entitled to give or take under this Indenture.
Neither the Company, the Trustee nor any Authenticating Agent will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
-15-
Each Depositary designated pursuant to Section 2.01 for a global Security
must, at the time of its designation and at all times while it serves as
Depositary, be a clearing agency registered under the Securities Exchange Act of
1934, as amended, and any other applicable statute or regulation.
SECTION 2.03. Denominations of and Payment of Interest on Securities.
The Securities of each series shall be issuable as fully registered
Securities without coupons in such denominations as shall be specified as
contemplated by Section 2.01. In the absence of any such provisions with respect
to the Securities of any series, the Securities of such series shall be issuable
in denominations of $1,000 and integral multiples of $1,000 in excess thereof.
If the Securities of any series shall bear interest, each Security of such
series shall bear interest from the applicable date at the rate or rates per
annum, and such interest shall be payable on the dates, specified on, or
determined in the manner provided for in, the Security. The person in whose name
any Security is registered at the close of business on any record date (as
hereinbelow defined) for the Security with respect to any interest payment date
for such Security shall be entitled to receive the interest payable thereon on
such interest payment date notwithstanding the cancellation of such Security
upon any registration of transfer, exchange or conversion thereof subsequent to
such record date and prior to such interest payment date, unless such Security
shall have been called for redemption on a date fixed for redemption subsequent
to such record date and prior to such interest payment date, or unless the
Company shall default in the payment of interest due on such interest payment
date on such Security, in which case such defaulted interest shall be paid to
the person in whose name such Security (or any Security or Securities issued
upon registration of or exchange thereof) is registered at the close of business
on the record date for the payment of such defaulted interest, or except as
otherwise specified as contemplated by Section 2.01. The term "record date" as
used in this Section with respect to any regular interest payment date for any
Security shall mean such day or days as shall be specified as contemplated by
Section 2.01; provided, however, that in the absence of any such provisions with
respect to any Security, such term shall mean: (1) the last day of the calendar
month next preceding such interest payment date if such interest payment date is
the fifteenth day of a calendar month; or (2) the fifteenth day of the calendar
month next preceding such interest payment date if such interest payment date is
the first day of a calendar month; provided, further, that (except as otherwise
specified as contemplated by Section 2.01) if the day which would be the record
date as provided herein is not a Business Day, then it shall mean the Business
Day next preceding such day. Such term, as used in this Section, with respect to
the payment of any defaulted interest on any Security shall mean (except as
otherwise specified as contemplated by Section 2.01) the fifth day next
preceding the date fixed by the Company for the payment of defaulted interest,
established by notice given by first class mail by or on behalf of the Company
to the holder of such Security not less than 10 days preceding such record date,
or, if such fifth day is not a Business Day, the Business Day next preceding
such fifth day.
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SECTION 2.04. Execution of Securities.
The Securities shall be signed on behalf of the Company, manually or in
facsimile, by its Chairman of the Board or any Vice Chairman of the Board, or
its President or any Vice Chairman or any Executive Vice President, the Chief
Operating Officer or the Chief Financial Officer of the Company and by its
Treasurer or an Assistant Treasurer, the Controller or its Secretary or an
Assistant Secretary under its corporate seal, which may be affixed thereto or
printed, engraved or otherwise reproduced thereon, by facsimile or otherwise.
Only such Securities as shall bear thereon a certificate of authentication
substantially in the form recited herein, executed by or on behalf of the
Trustee manually by an authorized officer, shall be entitled to the benefits of
this Indenture or be valid or obligatory for any purpose. Such certificate by
the Trustee upon any Security executed by the Company shall be conclusive
evidence that the Security so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the benefits of this
Indenture. Typographical or other errors or defects in the seal or facsimile
signature on any Security or in the text thereof shall not affect the validity
or enforceability of such Security if it has been duly authenticated and
delivered by the Trustee.
In case any officer of the Company who shall have signed any of the
Securities, manually or in facsimile, shall cease to be such officer before the
Securities so signed shall have been authenticated and delivered by the Trustee,
or disposed of by the Company, such Securities nevertheless may be authenticated
and delivered or disposed of as though the person who signed such Securities had
not ceased to be such officer of the Company; and any Security may be signed on
behalf of the Company, manually or in facsimile, by such persons as, at the
actual date of the execution of such Security, shall be the proper officers of
the Company, although at the date of the execution of this Indenture any such
person was not such officer.
SECTION 2.05. Registration, Transfer and Exchange of Securities.
Securities of any series (other than a global Security, except as set forth
below) may be exchanged for a like aggregate principal amount of Securities of
the same series of the same tenor and terms of other authorized denominations.
Securities to be exchanged shall be surrendered at the offices or agencies to be
maintained by the Company in accordance with the provisions of Section 4.02 and
the Company shall execute and the Trustee shall authenticate and deliver, or
cause to be authenticated and delivered, in exchange therefor the Security or
Securities which the Securityholder making the exchange shall be entitled to
receive.
The Company shall keep, at one of the offices or agencies to be maintained
by the Company in accordance with the provisions of Section 4.02 with respect to
the Securities of each series, a Register (herein defined as the "Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall register the Securities of such series and the transfer of Securities of
such series as in this Article provided. Such Register shall be in written form
or in any other form capable of being converted into written form within a
reasonable time. At all reasonable times the Register shall be open for
inspection by
-17-
the Trustee and any registrar of the Securities of such series other than the
Trustee. Upon due presentment for registration of transfer of any Security of
any series at the offices or agencies of the Company to be maintained by the
Company in accordance with Section 4.02 with respect to the Securities of such
series, the Company shall execute and register and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of the same series of like tenor and terms for a like
aggregate principal amount of authorized denominations.
Every Security issued upon registration of transfer or exchange of
Securities pursuant to this Section shall be the valid obligation of the
Company, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Security or Securities surrendered upon registration of such
transfer or exchange.
All Securities of any series presented or surrendered for exchange,
registration of transfer, redemption, conversion or payment shall, if so
required by the Company or any registrar of the Securities of such series, be
accompanied by a written instrument or instruments of transfer, in form
satisfactory to the Company and such registrar, duly executed by the registered
holder or by his attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto.
The Company shall not be required to exchange or register the transfer of
(a) any Securities of any series during a period beginning at the opening of
business fifteen days before the day of the mailing of a notice of redemption of
outstanding Securities of such series and ending at the close of business on the
day of such mailing, or (b) any Securities or portions thereof called or
selected for redemption, except, in the case of Securities called for redemption
in part, the portion thereof not so called for redemption.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for Securities in definitive form, a global
Security representing all or a portion of the Securities of a series may not be
transferred, except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
Notwithstanding the foregoing, except as otherwise specified pursuant to
Section 2.01, any global Security shall be exchangeable pursuant to this Section
only as provided in this paragraph. If at any time the Depositary for the
Securities of a series notifies the Company that it is unwilling or unable to
continue as Depositary for the Securities of such series, or if at any time the
Depositary for the Securities of such series shall no longer be eligible to so
act, the Company shall appoint a successor Depositary with respect to the
Securities of such series. If (a) a successor Depositary for the Securities of
such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes
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aware of such ineligibility (thereby automatically making the Company's election
pursuant to Section 2.01 no longer effective with respect to the Securities of
such series), (b) the beneficial owners of interests in a global Security are
entitled to exchange such interests for Securities of such series and of the
same tenor and terms, as specified pursuant to Section 2.01, or (c) the Company
in its sole discretion determines that the Securities of any series issued in
the form of one or more global Securities shall no longer be represented by such
global Security or Securities, then without unnecessary delay, but, if
appropriate, in any event not later than the earliest date on which such
interest may be so exchanged, the Company shall deliver to the Trustee
definitive Securities in aggregate principal amount equal to the principal
amount of such global Security, executed by the Company. On or after the
earliest date on which such interests are or may be so exchanged, such global
Security shall be surrendered by the Depositary to the Trustee, as the Company's
agent for such purpose, to be exchanged, in whole or from time to time in part,
for definitive Securities upon payment by the beneficial owners of such
interest, at the option of the Company, of a service charge for such exchange
and of a proportionate share of the cost of printing such definitive Securities,
and the Trustee shall authenticate and deliver, (a) to each person specified by
the Depositary in exchange for each portion of such global Security, an equal
aggregate principal amount of definitive Securities of the same series of
authorized denominations and of the same tenor and terms as the portion of such
global Security to be exchanged, and (b) to such Depositary a global Security in
a denomination equal to the difference, if any, between the principal amount of
the surrendered global Security and the aggregate principal amount of definitive
Securities delivered to holders thereof; provided, however, that no such
exchanges may occur during a period beginning at the opening of business 15
Business Days before any selection of Securities of that series to be redeemed
and ending on the relevant redemption date. If a Security is issued in exchange
for any portion of a global Security after the close of business at the office
or agency where such exchange occurs on (i) any record date and before the
opening of business at such office or agency on the relevant interest payment
date, or (ii) any record date for the payment of defaulted interest and before
the opening of business at such office or agency on the related proposed date
for payment of defaulted interest, then interest or default interest, as the
case may be, will not be payable on such interest payment date or proposed date
for payment of defaulted interest, as the case may be, in respect of such
Security, but will be payable on such interest payment date or proposed date for
payment of defaulted interest, as the case may be, only to the person to whom
interest in respect of such portion of such global Security is payable in
accordance with the provisions of this Indenture and such global Security.
SECTION 2.06. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute and the Trustee shall authenticate and deliver temporary Securities
of such series (printed or lithographed) of any denomination and substantially
in the form of the definitive Securities of such series, but with or without a
recital of specific redemption prices or conversion provisions and with such
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Temporary Securities may
contain such reference to any provisions of this Indenture as may be
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appropriate. Every such temporary Security shall be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with the same
effect, as the definitive Securities. Without unreasonable delay the Company
will execute and deliver to the Trustee definitive Securities of such series and
thereupon any or all temporary Securities of such series may be surrendered in
exchange therefor, at the offices or agencies to be maintained by the Company as
provided in Section 4.02 with respect to the Securities of such series, and the
Trustee shall authenticate and deliver in exchange for such temporary Securities
an equal aggregate principal amount of definitive Securities of such series.
Until so exchanged, the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series authenticated and delivered hereunder.
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become mutilated or be
destroyed, lost or stolen, the Company, in the case of any mutilated Security
shall, and in the case of any destroyed, lost or stolen Security in its
discretion may, execute, and upon its request the Trustee shall authenticate and
deliver, or cause to be authenticated and delivered, a new Security of the same
series of like tenor and terms in exchange and substitution for the mutilated
Security, or in lieu of and in substitution for the Security so destroyed, lost
or stolen. In case any such Security shall have matured or shall be about to
mature, instead of issuing a substituted Security, the Company may pay or
authorize payment of the same (without surrender thereof, except in the case of
a mutilated Security). In every case the applicant for a substituted Security or
for such payment shall furnish to the Company and the Trustee such security or
indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and to the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security and of the ownership thereof. The
Trustee may authenticate any such substituted Security and deliver the same, or
the Trustee or any paying agent of the Company may make any such payment, upon
the written request or authorization of any officer of the Company. Upon the
issue of any substituted Security, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses connected therewith
(including the fees and expenses of the Trustee).
To the extent permitted by mandatory provisions of law, every substituted
Security issued pursuant to the provisions of this Section in substitution for
any destroyed, lost or stolen Security shall constitute an additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be found at any time, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of the same series duly issued hereunder.
To the full extent legally enforceable, all Securities shall be held and
owned upon the express condition that the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities and shall preclude
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any and all other rights or remedies notwithstanding any law or statute existing
or hereafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
SECTION 2.08. Cancellation and Destruction of Surrendered Securities.
All Securities surrendered for the purpose of payment, redemption,
conversion, exchange, substitution or registration of transfer, shall, if
surrendered to the Company or any agent of the Company or of the Trustee, be
delivered to the Trustee, and the same, together with Securities surrendered to
the Trustee for cancellation, shall be canceled by it, and no Securities shall
be issued in lieu thereof except as expressly permitted by any of the provisions
of this Indenture. The Trustee shall dispose of canceled Securities in
accordance with its customary procedures and deliver a certificate of
disposition thereof to the Company unless by an Officers' Certificate the
Company shall direct that canceled Securities be returned to it. If the Company
shall purchase or otherwise acquire any of the Securities, however, such
purchase or acquisition shall not operate as a payment, redemption or
satisfaction of the Indebtedness represented by such Securities unless and until
the Company, at its option, shall deliver or surrender the same to the Trustee
for cancellation.
SECTION 2.09. Authenticating Agents.
The Trustee may from time to time appoint one or more Authenticating Agents
with respect to one or more series of Securities, which shall be authorized to
act on behalf of the Trustee and subject to its direction in authenticating and
delivering Securities of such series pursuant hereto in connection with
exchanges, registrations of transfer, redemptions and conversions as fully to
all intents and purposes as though any such Authenticating Agent had been
expressly authorized to execute and deliver Securities of such series, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as though authenticated by
the Trustee. Wherever reference is made in this Indenture to the authentication
or delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication or
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall at all times be a corporation (including a
banking association) organized and doing business under the laws of the United
States or any State or territory thereof or of the District of Columbia, having
a combined capital and surplus of at least five million dollars, authorized
under such laws to exercise corporate trust powers and subject to supervision or
examination by federal, state, territorial, or District of Columbia authorities.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and
with the effect herein specified in this Section.
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Any corporation succeeding to the corporate agency business of an
Authenticating Agent shall continue to be an Authenticating Agent, if such
successor corporation is otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent or such successor corporation.
Any Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may, or at the request of the Company
promptly shall, appoint a successor Authenticating Agent. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent herein. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
Any Authenticating Agent by the acceptance of its appointment shall be
deemed to have agreed with the Trustee that: it will perform and carry out the
duties of an Authenticating Agent as herein set forth, including among other
things the duties to authenticate and deliver Securities of any series for which
it has been appointed an Authenticating Agent it will furnish from time to time
as requested by the Trustee appropriate records of all transactions carried out
by it as Authenticating Agent and will furnish the Trustee such other
information and reports as the Trustee may reasonably require; it is eligible
for appointment as Authenticating Agent under this Section and will notify the
Trustee promptly if it shall cease to be so qualified; and it will indemnify the
Trustee against any loss, liability or expense incurred by the Trustee and will
defend any claim asserted against the Trustee by reason of any acts or failures
to act of the Authenticating Agent but it shall have no liability for any action
taken by it at the specific written direction of the Trustee.
SECTION 2.10. Deferrals of Interest Payment Dates.
If specified as contemplated by Section 2.01 or Section 2.02 with respect
to the Securities of a particular series, 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 such series, from time to time to defer the payment of interest on
such Securities for such period or periods as may be specified as contemplated
by Section 2.01 (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. No Extension Period shall end on a date other than an
interest payment date. At the end of any such Extension Period the Company shall
pay all interest then accrued and unpaid on the Securities (together with
Additional Sums, Additional Interest,
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Compounded Interest and Special Interest thereon, if any, at the rate specified
for the Securities of such series to the extent permitted by applicable law);
provided, however, that no Extension Period shall extend beyond the Stated
Maturity of the principal of the Securities of such series; provided, further,
that 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 the
Securities of such series or make any guarantee payments with respect to any
Bear Stearns Guarantee or other guarantee by the Company of the debt securities
of any Subsidiary of the Company that by their terms rank pari passu with or
junior in interest to the Securities of such series (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 Stearns Guarantee (as defined herein and in 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 the period or periods specified in such Securities or extend
beyond the Stated Maturity of the principal of such Securities. Upon termination
of any Extension Period and upon the payment of all accrued and unpaid interest
and any Additional Sums, Additional Interest, Compounded Interest and Special
Interest then due on any interest payment date, 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 end thereof. The
Company shall give the holders of the Securities of such series and the Trustee
notice of its election to begin or extend any such Extension Period at least
five Business Days prior to the next succeeding interest payment date on which
interest on Securities of such series would be payable but for such deferral or,
with respect to the Securities of a series issued to a Bear Stearns Trust so
long as such Securities are held by such Bear Stearns Trust prior to the earlier
of (i) the next succeeding date on which Distributions on the Preferred
Securities of such Bear Stearns Trust would be payable but for such deferral, or
(ii) the date the Property Trustee of such Bear Stearns Trust is required to
give notice to any securities exchange or other 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.
The Trustee shall promptly give notice of the Company's election to begin
any such Extension Period to the holders of the outstanding Securities of such
series.
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SECTION 2.11. Right of Set-Off.
With respect to the Securities of a series issued to a Bear Stearns Trust
notwithstanding anything to the contrary in the Indenture, the Company shall
have the right to set-off any payment it is otherwise required to make
thereunder in respect of any such Security to the extent the Company has
theretofore made, or is concurrently on the date of such payment making, a
payment under the Bear Stearns Guarantee relating to such Security or under
Section 6.05 of the Indenture.
SECTION 2.12. Shortening or Extension of Stated Maturity.
If specified as contemplated by Section 2.01 or Section 2.02 with respect
to the Securities of a particular series, the Company shall have the right to
(i) shorten the Stated Maturity of the principal of the Securities of such
series at any time to any date not earlier than the first date on which the
Company has the right to redeem the Securities of such Series, and (ii) extend
the Stated Maturity of the principal of the Securities of such series at any
time at its election for one or more periods, but in no event to a date later
than the 49th anniversary of the first interest payment date following the
Original Issue Date of the Securities of such series; provided that, if the
Company elects to exercise its right to extend the Stated Maturity of the
principal of the Securities of such series pursuant to this clause (ii), at the
time such election is made and at the time of extension (A) the Company is not
in bankruptcy, otherwise insolvent or in liquidation, (B) the Company is not in
default in the payment of any interest or principal on such Securities, (C) in
the case of any series of Securities issued to a Bear Stearns Trust such Bear
Stearns Trust is not in arrears on payments of Distributions on the Preferred
Securities issued by such Bear Stearns Trust and no deferred Distributions are
accumulated, and (D) such Securities are rated not less than BBB- by Standard &
Poor's Ratings Services or Baa3 by Moody's Investors Service, Inc. or the
equivalent by any other nationally recognized statistical rating organization.
In the event the Company elects to shorten or extend the Stated Maturity of the
Securities, it shall give notice to the Trustee, and the Trustee shall give
notice of such shortening or extension to the holders no less than 30 and no
more than 60 days prior to the effectiveness thereof.
SECTION 2.13. Agreed Tax Treatment.
Each Security issued hereunder shall provide that the Company and, by its
acceptance of a Security or a beneficial interest therein, the holder of, and
any Person that acquires a beneficial interest in, such Security agree that for
United States federal, state and local tax purposes it is intended that such
Security constitute indebtedness.
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ARTICLE III
REDEMPTION OF SECURITIES
SECTION 3.01. Applicability of Article.
Securities of any series which are redeemable prior to Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 2.01 for Securities of any series) in
accordance with this Article.
SECTION 3.02. Mailing of Notice of Redemption.
In case the Company shall desire to exercise any right to redeem all or, as
the case may be, any part of the Securities of any series pursuant to this
Indenture, it shall give notice of such redemption to holders of the Securities
to be redeemed as hereinafter in this Section provided.
The Company covenants that it will pay to the Trustee or one or more paying
agents, on or before the Business Day next preceding the date fixed for each
redemption of Securities, a sum in cash sufficient to redeem on the redemption
date all the Securities so called for redemption at the applicable redemption
price, together with any accrued interest on the Securities to be redeemed to
the date fixed for redemption.
Notice of redemption shall be given to the holders of Securities to be
redeemed as a whole or in part by mailing by first class mail, postage prepaid,
a notice of such redemption not less than 30 nor more than 60 days prior to the
date fixed for redemption to their last addresses as they shall appear upon the
Register, but failure to give such notice by mailing in the manner herein
provided to the holder of any Security designated for redemption as a whole or
in part, or any defect therein, shall not affect the validity of the proceedings
for the redemption of any other Security.
Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the holder
receives the notice.
Each such notice of redemption shall specify the date fixed for redemption
and the redemption price at which Securities are to be redeemed or if the
redemption price cannot be calculated prior to the time the notice is required
to be given, the manner of calculation thereof, and shall state that payment of
the redemption price of the Securities or portions thereof to be redeemed will
be made at any of the offices or agencies to be maintained by the Company in
accordance with the provisions of Section 4.02 with respect to the Securities to
be redeemed, upon presentation and surrender of such Securities or portions
thereof, and that, if applicable, interest accrued to the date fixed for
redemption will be paid as specified in said notice and on and after said date
interest thereon will cease to accrue and shall also specify, if applicable, the
conversion price and the date on which the right to convert the Securities will
expire and that holders must comply with Article XV hereof in order to convert
their Securities. If less than all the Securities of any series are to be
redeemed, the notice of
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redemption to each holder shall specify such holder's Securities of such series
to be redeemed as a whole or in part. In case any Security is to be redeemed in
part only, the notice which relates to such Security shall state the portion of
the principal amount thereof to be redeemed (which shall be equal to the minimum
authorized denomination for Securities of such series or any whole multiple
thereof), and shall state that on and after the redemption date, upon surrender
of such Security, the holder will receive the redemption price in respect to the
principal amount thereof called for redemption and, without charge, a new
Security or Securities of the same series of authorized denominations for the
principal amount thereof remaining unredeemed.
In the case of any redemption at the election of the Company, the Company
shall, at least 60 days prior to the date fixed for redemption (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of such
redemption date, the basis for such redemption and of the principal amount of
Securities of the applicable series to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or that is subject to
compliance with conditions provided in the terms of such Securities, the Company
shall furnish the Trustee with an Officers' Certificate evidencing compliance
with such restriction or conditions.
If less than all the Securities of any series are to be redeemed, the
Company shall give the Trustee, at least 60 days in advance of the date fixed
for redemption, notice of the aggregate principal amount of Securities of such
series to be redeemed, and thereupon the Trustee shall select, pro rata, by lot,
or in any manner it shall deem fair, the Securities of such series to be
redeemed as a whole or in part and shall thereafter promptly notify the Company
in writing of the particular Securities of such series or portions thereof to be
redeemed. If the Securities of any series to be redeemed consist of Securities
having different dates on which the principal or any installment of principal is
payable or different rates of interest, if any, or different methods by which
interest may be determined or have any other different tenor or terms, then the
Company may, by written notice to the Trustee, direct that Securities of such
series to be redeemed shall be selected from among groups of such Securities
having specified term or terms and the Trustee shall thereafter select the
particular Securities to be redeemed in the manner set forth in the preceding
sentence from among the group of such Securities so specified.
SECTION 3.03. When Securities Called for Redemption Become Due and Payable.
If the giving of notice of redemption shall have been completed as above
provided, the Securities or portions of Securities specified in such notice
shall become due and payable on the date and at the place or places stated in
such notice at the applicable redemption price, together, if applicable, with
any interest accrued (including any Additional Sums, Additional Interest,
Compounded Interest or Special Interest) to the date fixed for redemption, and
on and after such date fixed for redemption (unless the Company shall default in
the payment of such Securities at the applicable redemption price, together with
any interest accrued to the date fixed for redemption) any interest on the
Securities or portions of
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Securities so called for redemption shall cease to accrue, and, except as
provided in Sections 7.05 and 12.04, such Securities shall cease from and after
the date fixed for redemption to be entitled to any benefit or security under
this Indenture, and the holders thereof shall have no right in respect of such
Securities except the right to receive the redemption price thereof and any
unpaid interest accrued to the date fixed for redemption. On presentation and
surrender of such Securities at said place of payment in said notice specified,
the said Securities or portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with any interest accrued
to the date fixed for redemption; provided, however, that, except as otherwise
specified as contemplated by Section 2.01, any regular payment of interest
becoming due on the date fixed for redemption shall be payable to the holders of
the Securities registered as such on the relevant record date as provided in
Article II hereof. Upon presentation of any Security which is redeemed in part
only, the Company shall execute and the Trustee shall authenticate and deliver
at the expense of the Company a new Security of the same series of like tenor
and terms of authorized denomination in principal amount equal to the unredeemed
portion of the Security so presented; except that if a global Security is so
surrendered, the Company shall execute, and the Trustee shall authenticate and
deliver to the Depositary for such global Security, without service charge, a
global Security in a denomination equal to and in exchange for the unredeemed
portion of the principal of the global Security so surrendered.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
date fixed for redemption at the rate borne by or prescribed therefor in the
Security, or, in the case of a Security which does not bear interest, at the
rate of interest set forth therefor in the Security to the extent permitted by
law.
SECTION 3.04. Right of Redemption of Securities Initially Issued to a Bear
Stearns Trust.
In the case of the Securities of a series initially issued to Bear Stearns
Trust, except as otherwise specified as contemplated by Section 2.01, the
Company, at its option, may redeem such Securities on or after the date five
years after the Original Issue Date of such Securities, in whole at any time or
in part from time to time at a redemption price equal to 100% of the principal
amount thereof together with any unpaid interest accrued, (including any
Additional Sums, Additional Interest, Compounded Interest or Special Interest)
to the date fixed for redemption.
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
The Company covenants as follows:
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SECTION 4.01. Payment of Principal of and Interest on Securities.
The Company will duly and punctually pay or cause to be paid the principal
of and interest, if any, on each of the Securities at the time and places and in
the manner provided herein and in the Securities. Except as otherwise specified
as contemplated by Section 2.01, if the Securities of any series bear interest,
each installment of interest on the Securities of such series may at the option
of the Company be paid (i) by mailing a check or checks for such interest
payable to the person entitled thereto pursuant to Section 2.03 to the address
of such person as it appears on the Register of the Securities of such series or
(ii) by transfer to an account maintained by the Person entitled thereto as
specified in the Register of Securities, provided that proper transfer
instructions have been received by the record date.
SECTION 4.02. Maintenance of Offices or Agencies for Registration of
Transfer, Exchange and Payment of Securities.
So long as any of the Securities shall remain outstanding, the Company will
maintain an office or agency in the City of New York, State of New York, where
the Securities may be presented for registration, conversion, exchange and
registration of transfer as in this Indenture provided, and where notices and
demands to or upon the Company in respect of the Securities or of this Indenture
may be served, and where the Securities may be presented for payment. In case
the Company shall designate and maintain some office or agency other than the
previously designated office or agency, it shall give the Trustee prompt written
notice thereof. In case the Company shall fail to maintain any such office or
agency or shall fail to give such notice of the location or of any change in the
location thereof to the Trustee, presentations and demands may be made and
notices may be served at the principal office of the Trustee.
In addition to such office or agency, the Company may from time to time
constitute and appoint one or more other offices or agencies for such purposes
with respect to Securities of any series, and one or more paying agents for the
payment of Securities of any series, in such cities or in one or more other
cities, and may from time to time rescind such appointments, as the Company may
deem desirable or expedient, and as to which the Company has notified the
Trustee; provided, however, that no such appointment or rescission shall in any
manner relieve the Company of its obligation to maintain such office or agency
in the Borough of Manhattan, City of New York, where Securities of such series
may be presented for payment.
SECTION 4.03. Appointment to Fill a Vacancy in the Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so
that there shall at all times be a Trustee with respect to each series of
Securities hereunder.
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SECTION 4.04. Duties of Paying Agent.
(a) If the Company shall appoint a Paying Agent other than the Trustee with
respect to Securities of any series, it will cause such Paying Agent to execute
and deliver to the Trustee an instrument in which such agent shall agree with
the Trustee, subject to the provisions of this Section and Section 12.03,
(1) That it will hold all sums held by it as such agent for the
payment of the principal of or interest, if any, on the Securities of
such series (whether such sums have been paid to it by the Company or
by any other obligor on the Securities of such series) in trust for the
benefit of the holders of the Securities entitled to such principal or
interest and will notify the Trustee of the receipt of sums to be so
held,
(2) That it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Securities of such series) to
make any payment of the principal of or interest on the Securities of
such series when the same shall be due and payable, and
(3) That it will at any time during the continuance of any Event
of Default, upon the written request of the Trustee, deliver to the
Trustee all sums so held in trust by it.
(b) Whenever the Company shall have one or more Paying Agents with respect
to the Securities of any series, it will, prior to each due date of the
principal of or any interest on a Security of such series, deposit with a Paying
Agent of such series a sum sufficient to pay the principal or interest so
becoming due, such sum to be held in trust for the benefit of the holders of
Securities entitled to such principal or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
(c) If the Company shall act as its own Paying Agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or any interest on a Security of such series, set aside, segregate and hold
in trust for the benefit of the holder of such Security, a sum sufficient to pay
such principal or interest so becoming due and will notify the Trustee of such
action, or any failure by it or any other obligor on the Securities of such
series to take such action and will at any time during the continuance of any
Event of Default, upon the written request of the Trustee, deliver to the
Trustee all sums so held in trust by it.
(d) Anything in this Section to the contrary notwithstanding, the Company
may, at any time, for the purpose of obtain a satisfaction and discharge of this
Indenture with respect to one or more or all series of Securities hereunder, or
for any other reason, pay or cause to be paid to the Trustee all sums held in
trust for such series by it, or any Paying Agent hereunder, as required by this
Section, such sums are to be held by the Trustee upon the trust herein
contained.
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(e) Anything in this Section to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this Section is subject to the provisions
of Sections 12.03 and 12.04.
SECTION 4.05. Further Assurances.
From time to time whenever reasonably demanded by the Trustee, the Company
will make, execute and deliver or cause to be made, executed and delivered any
and all such further and other instruments and assurances and take all such
further action as may be reasonably necessary or proper to carry out the
intention of or to facilitate the performance of the terms of this Indenture or
to secure the rights and remedies hereunder of the holders of the Securities of
any series.
SECTION 4.06. Officers' Certificate as to Defaults; Notices of Certain
Defaults.
The Company will, so long as any of the Securities are outstanding, deliver
to the Trustee on or before September 15 of each year, beginning with the year
1999, a certificate signed by the Company's principal executive officer,
principal financial officer or principal accounting officer stating that a
review has been made under his or her supervision of the activities of the
Company during such year and of the performance under this Indenture and, to the
best of his or her knowledge, the Company has complied with all conditions and
covenants under this Indenture throughout such year, or if there has been a
default in the fulfillment of any such obligation, specifying each such default
known and the nature and status thereof. For purposes of this Section, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
SECTION 4.07. Waiver of Covenants.
The Company may omit in any particular instance to comply with any covenant
or condition specifically contained in this Indenture for the benefit of one or
more series of Securities, if before the time for such compliance the holders of
a majority in principal amount of the Securities of all series affected (all
series voting as one class) at the time outstanding (determined as provided in
Section 8.04) shall waive such compliance in such instance, but no such waiver
shall extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
SECTION 4.08. Additional Sums.
In the case of the Securities of a series issued to a Bear Stearns Trust,
so long as no Event of Default has occurred and is continuing and except as
otherwise specified as contemplated by Section 2.01 or Section 2.02, in the
event that (i) a Bear Stearns Trust is the holder of all of the Outstanding
Securities of such series, (ii) a Special Event in respect of such Bear Stearns
Trust shall have occurred and be continuing and (iii) the Company shall not have
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(a) redeemed the Securities of such series or (b) terminated such Bear Stearns
Trust pursuant to the termination provisions of the related Trust Agreement, the
Company shall pay to such Trust (and its permitted successors or assign under
the related Trust Agreement) for so long as such Bear Stearns Trust (or its
permitted successor or assignee) is the registered holder of any Securities of
such series, such additional amounts as may be necessary in order that the
amount of Distributions (including any Additional Amounts (as defined in the
Trust Agreement)), then due and payable by such Bear Stearns Trust on the
related Preferred Securities and Common Securities that at any time remain
outstanding in accordance with the terms thereof shall not be reduced as a
result of any additional taxes (the "Additional Sums"). Whenever in this
Indenture or the Securities there is a reference in any context to the payment
of principal of or interest on the Securities, such mention shall be deemed to
include mention of the payments of the Additional Sums provided for in this
paragraph to the extent that, in such context, Additional Sums are, were or
would be payable in respect thereof pursuant to the provisions of this paragraph
and express mention of the payment of Additional Sums (if applicable) in any
provisions hereof shall not be construed as excluding Additional Sums in those
provisions hereof where such express mention is not made, provided, however,
that the deferral of the payment of interest pursuant to Section 2.10 or the
Securities shall not defer the payment of any Additional Sums that may be due
and payable.
SECTION 4.09. Additional Covenants.
The Company covenants and agrees with each holder of Securities of a series
issued to a Bear Stearns Trust that it will not, and it will 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 the Securities of such series or make
any guarantee payments with respect to any Bear Stearns Guarantee or other
guarantee by the Company of debt securities of any Subsidiary of the Company
that by their terms rank pari passu with or junior in interest to the Securities
of such series (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 Stearns Guarantee (as
defined herein and in the Existing Indenture); (d) purchases of common stock
related to the issuance of common stock 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) if at such time (i) there shall have occurred any
event of which the Company has actual knowledge that (a) with the giving of
notice or the lapse of time or both, would constitute an Event of Default
hereunder and (b) in respect of which the Company shall not have taken
reasonable steps to cure, (ii) the Company shall be in default with respect to
its payment of any obligations under the related Bear Stearns Guarantee or (iii)
the Company shall have given notice of its election to begin an Extension Period
as provided herein and shall not have rescinded such notice, or such period, or
any extension thereof, shall be continuing.
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The Company also covenants with each holder of Securities of a series
issued to Bear Stearns Trust (i) to maintain directly or indirectly 100%
ownership of the Common Securities of such Bear Stearns Trust; provided,
however, that any permitted successor of the Company hereunder may succeed to
the Company's ownership of such Common Securities, (ii) not to voluntarily
terminate, wind up or liquidate such Bear Stearns Trust, except (a) in
connection with a distribution of the Securities of such series to the holders
of Preferred Securities in liquidation of such Bear Stearns Trust or (b) in
connection with certain mergers, consolidations or amalgamations permitted by
the related Trust Agreement and (iii) to use its reasonable efforts, consistent
with the terms and provisions of such Trust Agreement, to cause such Trust to
remain classified as a grantor trust and not an association taxable as a
corporation for United States federal income tax purposes.
The Company also covenants and agrees with each holder of Securities of a
series issued to a Bear Stearns Trust that it will pay all debts and other
obligations (other than with respect to the Preferred Securities) and all costs
and expenses of the Bear Stearns Trust (including costs and expenses relating to
the organization of the Bear Stearns Trust, the fees and expenses of the
trustees of such Bear Stearns Trust and the costs and expenses relating to the
operation of the Bear Stearns Trust) and the offering of the Preferred
Securities and to pay any and all taxes and all costs and expenses with respect
to the foregoing (other than United States withholding taxes) to which the Bear
Stearns Trust might become subject. The foregoing obligations of the Company are
for the benefit of, and shall be enforceable by, any person to whom any such
debts, obligations, costs, expenses and taxes are owed (a "Creditor") whether or
not such Creditor has received notice thereof. Any such Creditor may enforce
such obligations of the Company directly against the Company and the Company has
irrevocably waived any right or remedy to require that any such Creditor take
any action against the Bear Stearns Trust or any other person before proceeding
against the Company.
ARTICLE V
SECURITYHOLDERS LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 5.01. Company to Furnish Trustee Information as to the Names and
Addresses of Securityholders.
The Company covenants and agrees that it will furnish or cause to be
furnished to the Trustee, semiannually not more than five days after January 1
and July 1 of each year beginning with January 1999, and at such other times as
the Trustee may request in writing within 30 days after receipt by the Company
of any such request, a list in such form as the Trustee may reasonably require
containing all information in the possession or control of the Company, or any
Paying Agent or any registrar of the Securities of such series, other than the
Trustee, as to the names and addresses of the holders of Securities of such
series obtained (in the case of each list other than the first list) since the
date as of which the next previous list was furnished; provided, however, that
if the Trustee shall be the registrar of the Securities of such series, no such
list need be furnished. Any such list may be dated as of a date not more
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than fifteen days prior to the time such information is furnished or caused to
be furnished, and need not include information received after such date.
SECTION 5.02. Trustee to Preserve Information as to the Names and Addresses
of Securityholders Received by It.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the holders of
Securities of each series (1) contained in the most recent list furnished to it
as provided in Section 5.01 and (2) received by it in the capacity of Paying
Agent or registrar (if so acting). The Trustee may destroy any list furnished to
it as provided in Section 5.01 upon receipt of a new list so furnished.
(b) In case three or more holders of Securities (hereinafter referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other holders of
Securities of any series or with holders of all Securities with respect to their
rights under this Indenture or under such Securities, and is accompanied by a
copy of the form of proxy or other communication which such applicants propose
to transmit, then the Trustee shall, within five Business Days after the receipt
of such application, at its election, either
(1) afford such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection
(a) of this Section, or
(2) inform such applicants as to the approximate number of holders
of Securities of such series or all Securities, as the case may be,
whose names and addresses appear in the information preserved at the
time by the Trustee in accordance with the provisions of subsection (a)
of this Section, and as to the approximate cost of mailing to such
Securityholders the form of proxy or other communications, if any,
specified in such application.
If the Trustee shall elect not to afford such access to such information,
the Trustee shall, upon the written request of such applicants, mail to each of
the holders of Securities of such series, or all Securities, as the case may be,
whose name and address appear in the information preserved at the time by the
Trustee in accordance with the provisions of subsection (a) of this Section, a
copy of the form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender, the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interests of the holders of Securities of such series or all Securities, as the
case may be, or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the
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objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Securityholders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to such applicants respecting their
application.
(c) Each and every holder of the Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any Paying Agent nor any registrar shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the holders of Securities in accordance with the provisions of subsection (b)
of this Section, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under said subsection (b).
(d) If there shall be different Trustees acting hereunder with respect to
separate series of Securities, applicants shall make separate applications
hereunder to each such Trustee, and such Trustees shall collaborate, if
necessary, in acting under this Section.
SECTION 5.03. Annual and Other Reports to Be Filed by Company with Trustee.
(a) The Company covenants and agrees to file with the Trustee within
fifteen days after the Company is required to file the same with the Commission,
copies of the annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of such Sections, then it
will file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from time to
time by the Commission, such additional information, documents, and reports with
respect to compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required from time to time by such rules and
regulations.
(c) The Company covenants and agrees to transmit to the holders of
Securities within 30 days after the filing thereof with the Trustee, in the
manner and to the extent provided in subsection (c) of Section 5.04 with respect
to reports pursuant to subsection (a) of said Section 5.04, such summaries of
any information, documents and reports required
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to be filed by the Company pursuant to subsections (a) and (b) of this Section
as may be required by rules and regulations prescribed from time to time by the
Commission.
SECTION 5.04. Trustee to Transmit Annual Report to Securityholders.
(a) On or before January 15, 1999, and on or before January 15 in every
year thereafter, if and so long as any Securities are outstanding hereunder, the
Trustee shall transmit to the Securityholders as hereinafter in this Section
provided, a brief report dated as of the preceding November 15 with respect to
any of the following events which may have occurred within the previous twelve
(12) months (but if no such event has occurred within such period no report need
be transmitted):
(1) Any change to its eligibility under Section 7.09, and its
qualifications under Section 7.08;
(2) The creation of or any material change to a relationship
which, with the occurrence of an Event of Default, would create a
conflicting interest within the meaning of the Trust Indenture Act;
(3) The character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof)
made by the Trustee (as such) which remain unpaid on the date of such
report, and for the reimbursement of which it claims or may claim a
lien or charge, prior to that of the Securities of any series, on any
property or funds held or collected by it as Trustee, except that the
Trustee shall not be required (but may elect) to state such advances if
such advances so remaining unpaid aggregate not more than one-half of
one percent of the principal amount of the Securities of such series
outstanding on the date of such report;
(4) Any change to the amount, interest rate, and maturity date of
all other indebtedness owing by the Company (or by any other obligor on
the Securities) to the Trustee in its individual capacity, on the date
of such report, with a brief description of any property held as
collateral security therefor, except indebtedness based upon a creditor
relationship arising in any manner described in paragraph (2), (3),
(4), or (6) of subsection (b) of Section 7.13;
(5) Any change to the property and funds, if any, physically in
the possession of the Trustee (as such) on the date of such report;
(6) Any additional issue of Securities which the Trustee has not
previously reported; and
(7) Any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously reported and
which in its opinion materially affects the Securities, except action
in respect of a default, notice of which has been or is to be withheld
by it in accordance with the provisions of Section 6.07.
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(b) The Trustee shall transmit to the Securityholders, as hereinafter
provided, a brief report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee (as such) since the date of the last
report transmitted pursuant to the provisions of subsection (a) of this Section
(or if such report has not yet been so transmitted, since the date of execution
of this Indenture), for the reimbursement of which it claims or may claim a lien
or charge prior to that of the Securities of any series on property or funds
held or collected by it as Trustee, and which it has not previously reported
pursuant to this subsection, except that the Trustee shall not be required (but
may elect) to report such advances if such advances remaining unpaid at any time
aggregate ten percent or less of the principal amount of Securities of such
series outstanding at such time, such report to be transmitted within 90 days
after such time.
(c) Reports pursuant to this Section shall be transmitted by mail to all
holders of Securities of any series, as the names and addresses of such holders
shall appear upon the Register of the Securities of such series.
(d) A copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with each stock exchange upon which the
Securities of any series are listed and also with the Commission. The Company
will notify the Trustee when and as the Securities of any series become listed
on any stock exchange.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. Events of Default Defined.
The term "Event of Default" whenever used herein with respect to Securities
of any series shall mean any one of the following events:
(a) Default in the payment of any installment of interest upon any of the
Securities of such series as and when the same shall become due and payable, and
continuance of such default for a period of 30 days (subject to the deferral of
any due date in the case of an Extension Period); or
(b) Default in the payment of all or any part of the principal of any of
the Securities of such series as and when the same shall become due and payable
either at maturity, upon any redemption, by declaration or otherwise; or
(c) Failure on the part of the Company duly to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Company in the Securities or in this Indenture (including any supplemental
indenture or pursuant to any Officers' Certificate as contemplated by Section
2.01) specifically contained for the benefit of the Securities of such series,
for a period of 90 days after there has been given, by registered
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or certified mail, to the Company by the Trustee, or to the Company and the
Trustee by the holders of not less than 25% in principal amount of the
Securities of such series and all other series so benefited (all series voting
as one class) at the time outstanding under this Indenture a written notice
specifying such failure and stating that such is a "Notice of Default"
hereunder; or
(d) The commencement by the Company of a voluntary case under Chapter 7 or
Chapter 11 of the federal Bankruptcy Code or any other similar state or federal
law now or hereafter in effect, or the consent by the Company to the entry of a
decree or order for relief in an involuntary case under any such law, or the
consent by the Company to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or similar official) of
the Company or of all or substantially all of its property, or the making by the
Company of any general assignment for the benefit of creditors, or the failure
by the Company generally to pay its debts as they become due; or
(e) The entry of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Company in an involuntary case
under Chapter 7 or Chapter 11 of the federal Bankruptcy Code or any other
similar state or federal law now or hereafter in effect, or the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or for all or substantially all of its property, or the
ordering of a winding-up or liquidation of its affairs, and the continuance of
any such decree or order unstayed and in effect for a period of 90 days.
If an Event of Default under clauses (a), (b) or (c) above shall have
occurred and be continuing (but, in the case of clause (c), only if the Event of
Default is with respect to less than all series of Securities then outstanding
under this Indenture), unless the principal of all the Securities shall have
already become due and payable, either the Trustee or the holders of not less
than 25% in principal amount of all the then outstanding Securities of the
series as to which such Event of Default under clauses (a), (b) or (c) above has
occurred (each such series voting as a separate class in the case of an Event of
Default under clauses (a) or (b), and all such series voting as one class in the
case of an Event of Default under clause (c)), by notice in writing to the
Company (and to the Trustee if given by Securityholders) may declare the
principal amount (or if Securities of any series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all the Securities of such series, or of all such
series in the case of an Event of Default under clause (c) above, in each case
together with any accrued interest, to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately due and
payable; provided, however, that in the case of the Securities of a series
issued to a Bear Stearns Trust, if upon an Event of Default, the Trustee or the
holders of at least 25% in principal amount of the 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 series of Preferred Securities then
outstanding shall have such right by a notice in writing to the Company and the
Trustee. If an Event of Default under clauses (c), (d) or (e) above shall have
occurred and be continuing (but, in the case of clause (c), only if the Event of
Default is with respect to all Securities then
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outstanding under the Indenture), then and in each and every such case, unless
the principal of all the Securities shall have already become due and payable,
either the Trustee or the holders of not less than 25% in principal amount of
all the then outstanding Securities of each series as to which such Event of
Default under clauses (c), (d) or (e) above has occurred (voting as one class),
by notice in writing to the Company (and to the Trustee if given by
Securityholders) may declare the principal amount (or if Securities of any
series arc Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) of all the Securities as
to which the Event of Default under clauses (c), (d) or (e) above has occurred,
together with any accrued interest, to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately due and
payable, anything contained in this Indenture or in the Securities to the
contrary notwithstanding; provided, however, that in the case of the Securities
of a series issued to a Bear Stearns Trust, if upon an Event of Default, the
Trustee or the holders of not less than 25% in principal amount of the
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 series of
Preferred Securities then outstanding shall have such right by a notice in
writing to the Company and the Trustee. The foregoing provisions, however, are
subject to the condition that if at any time after the principal amount (or
specified portion thereof) of the Securities of any one or more series (or of
all the Securities, as the case may be) shall have been so declared due and
payable, and before any judgment or decree for the payment of moneys due shall
have been obtained or entered as hereinafter provided, the Company shall pay or
shall deposit with the Trustee a sum sufficient to pay all matured installments
of interest upon all the Securities of such series (or upon all the Securities,
as the case may be) and the principal of any and all Securities of such series
(or of any and all the Securities, as the case may be) which shall have become
due otherwise than by declaration (with interest on overdue installments of
interest to the extent permitted by law and on such principal at the rate or
rates of interest borne by, or prescribed therefor in, the Securities of each
such series to the date of such payment or deposit) and the amounts payable to
the Trustee under Section 7.06, and any and all defaults under the Indenture
with respect to Securities of such series (or all Securities, as the case may
be), other than the nonpayment of principal of and any accrued interest on
Securities of such series (or any Securities, as the case may be) which shall
have become due by declaration, shall have been cured, remedied or waived as
provided in Section 6.06, then and in every such case the holders of a majority
in principal amount of the Securities of such series (or of all the Securities,
as the case may be) then outstanding and as to which such Event of Default has
occurred (such series or all series voting as one class, if more than one series
are so entitled) by written notice to the Company and to the Trustee, may
rescind and annul such declaration and its consequences. In the case of
Securities issued to a Bear Stearns Trust, should the holders of such Securities
fail to annul such declaration and waive such default, the holders of a majority
in aggregate liquidation preference of related Preferred Securities shall have
such right; but no such rescission and annulment shall extend to or shall affect
any subsequent default, or shall impair any right consequent thereon.
In case the Trustee, any holder of Securities or any holder of Preferred
Securities shall have proceeded to enforce any right under this Indenture and
such proceedings
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shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, such holder of Securities or such holder of Preferred
Securities then and in every such case the Company, the Trustee, the holders of
the Securities of such series (or of all the Securities, as the case may be) and
the holders of Preferred Securities shall be restored respectively to their
former positions and rights hereunder, and all rights, remedies and powers of
the Company and the Trustee, the holders of the Securities of such series (or of
all the Securities, as the case may be) and the holders of Preferred Securities
shall continue as though no such proceedings had been taken.
SECTION 6.02. Covenant of Company to Pay to Trustee Whole Amount Due on
Securities or Default in Payment of Interest or Principal.
The Company covenants that (1) in case default shall be made in the payment
of any installment of interest on any of the Securities of any series as and
when the same shall become due and payable, and such default shall have
continued for a period of 30 days (subject to the deferral of any due date in
the case of an Extension Period), or (2) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity of
the Securities of such series or upon any redemption or upon declaration or
otherwise, then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the holders of the Securities of such series, the
whole amount that then shall have become due and payable on all such Securities
of such series for principal or interest, or both, as the case may be, with
interest upon the overdue principal and installments of interest (to the extent
permitted by law) at the rate or rates of interest borne by or prescribed
therefor in the Securities of such series; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including a reasonable compensation to the Trustee, its agents,
attorneys and counsel, and any expenses or liabilities incurred, and all
advances made, by the Trustee hereunder other than through its negligence or bad
faith.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, its own name and as trustee of an express trust, shall be
entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor upon such
Securities, and collect in the manner provided by law out of the property of the
Company or any other obligor upon such Securities wherever situated the moneys
adjusted or decreed to be payable.
The Trustee shall be entitled and empowered, either in its own name or as
trustee of an express trust, or as attorney-in-fact for the holders of the
Securities of any series, or in any one or more of such capacities (irrespective
of whether the principal of the Securities of such series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section) to file and prove a claim or claims for the whole amount of
principal (or, if the Securities of such series are Original Issue Discount
Securities, such
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portion of the principal amount as may be specified in the terms of such series)
and interest owing and unpaid in respect of the Securities of such series and to
file such other documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for reasonable compensation of the
Trustee, its agents and counsel, and for reimbursement of all expenses,
disbursements and liabilities incurred, and all advances made, by the Trustee,
its agents and counsel, except as a result of its negligence or bad faith) and
of the holders of the Securities of such series allowed in any equity
receivership, insolvency, bankruptcy, liquidation, arrangement, readjustment,
reorganization or any other judicial proceedings relative to the Company or any
other obligor on the Securities or their creditors, or their property. The
Trustee is hereby irrevocably appointed (and the successive respective holders
of the Securities of each series by taking and holding the same shall be
conclusively deemed to have so appointed the Trustee) the true and lawful
attorney-in-fact of the respective holders of the Securities of such series,
with authority to make and file in the respective names of the holders of the
Securities of such series, or on behalf of the holders of the Securities of such
series as a class, any proof of debt, amendment of proof of debt, claim,
petition or other document in any such proceeding and to receive payment of any
sums becoming distributable on account thereof, and to execute any such other
papers and documents and to do and perform any and all such acts and things for
and on behalf of such holders of the Securities, as may be necessary or
advisable in the opinion of the Trustee in order to have the respective claims
of the Trustee and of the holders of the Securities of such series allowed in
any such proceedings, and to receive payment of or on account of such claims and
to distribute the same, and any receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.06; provided,
however, that nothing herein shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of such series or the rights of any holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
holder of Securities of such series in any such proceeding.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities of any series, may be enforced by the Trustee without the
possession of any of the Securities of such series, or the production thereof on
any trial or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee, shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall be, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
such Trustee, its agents and counsel, for the ratable benefit of the holders of
the Securities of such series.
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SECTION 6.03. Application of Moneys Collected by Trustee.
Any moneys collected by the Trustee pursuant to Section 6.02 shall be
applied in the order following, at the date or dates fixed by the Trustee for
the distribution of such moneys, upon presentation of the several Securities in
respect of which moneys have been collected, and stamping thereon the payment,
if only partially paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses of collection, and of all
amounts payable to the Trustee under Section 7.06;
Second: In case the principal of the outstanding Securities in respect of
which moneys have been collected shall not have become due and be unpaid, to the
payment of any interest on such Securities, in the order of the maturity of the
installments of such interest, with interest upon the overdue installments of
interest (so far as permitted by law and to the extent that such interest has
been collected by the Trustee) at the rate or rates of interest borne by, or
prescribed therefor in, such Securities, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
Third: In case the principal of the outstanding Securities in respect of
which such moneys have been collected shall have become due, by declaration or
otherwise, to the payment of the whole amount then owing and unpaid upon such
Securities for principal and interest, if any, with interest on the overdue
principal and any installments of interest (so far as permitted by law and to
the extent that such interest has been collected by the Trustee) at the rate or
rates of interest borne by, or prescribed therefor in, such Securities; and in
case such moneys shall be insufficient to pay in full the whole amount so due
and unpaid upon such Securities, then to the payment of such principal and
interest, without preference or priority of principal over interest, or of
interest over principal, or of any installment of interest over any other
installment of interest, or of any Security over any other Security, ratably to
the aggregate of such principal and accrued and unpaid interest; and
Fourth: To the payment of the remainder, if any, to the Company, its
successors or assigns, or to whomsoever may be lawfully entitled to receive the
same, or as a court of competent jurisdiction may direct.
SECTION 6.04. Limitation on Suits by Holders of Securities.
No holder of any Security of any series shall have any right by virtue or
by availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless such holder previously shall have given to the Trustee written
notice of default and of the continuance thereof, as hereinbefore provided, and
unless also the holders of not less than 25% in principal amount of all the
Securities at the time outstanding (considered as one class) shall have made
written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require
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against the costs, expenses and liabilities to be incurred therein or thereby,
and the Trustee, for 60 days after its receipt of such notice, request and offer
of indemnity, shall have neglected or refused to institute any such action, suit
or proceeding and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to Section 6.06; it being understood and
intended, and being expressly covenanted by the taker and holder of every
Security with every other taker and holder and the Trustee, that no one or more
holders of Securities shall have any right in any manner whatever by virtue or
by availing of any provision of this Indenture to affect, disturb or prejudice
the rights of the holders of any other of such Securities, or to obtain or seek
to obtain priority over or preference to any other such holder, or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all holders of Securities. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
Notwithstanding any other provisions in this Indenture, the right of any
holder of any Security to receive payment of the principal of and interest on
such Security, on or after the respective due dates expressed in such Security
(or, in the case of redemption on or after the date fixed for redemption), or to
institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
holder.
SECTION 6.05. On Default Trustee May Take Appropriate Action.
In case of an Event of Default hereunder the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either by suit in equity or by action at
law or by proceeding in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in aid
of the exercise of any power granted in this Indenture, or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law. All
powers and remedies given by this Article to the Trustee or to the
Securityholders shall, to the extent permitted by law, be deemed cumulative and
not exclusive of any thereof or of any other powers and remedies available to
the Trustee or the holders of the Securities, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee,
of any holder of any of the Securities or any holder of Preferred Securities to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power, or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to the provisions of Section 8.04, every power and remedy
given by this Article or by law to the Trustee, to the Securityholders or the
holders of Preferred Securities may be exercised from time to time, and as often
as shall be deemed expedient, by the Trustee, by the Securityholders or by the
holders of Preferred Securities, as the case may be.
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In the case of Securities of a series issued to a Bear Stearns Trust, any
holder of the corresponding series of Preferred Securities issued by such Bear
Stearns Trust shall have the right, upon the occurrence of an Event of Default
described in Section 6.01(a) or (b) above, to institute a suit directly against
the Company for enforcement of payment to such holder of principal of (including
premium, if any) and interest (including any Additional Sums, Additional
Interest, Compounded Interest and Special Interest, if any) on the Securities
having a principal amount equal to the aggregate liquidation amount of such
Preferred Securities of the corresponding series held by such holder.
SECTION 6.06. Rights of Holders of Majority in Principal Amount of
Securities to Direct Trustee and to Waive Default.
The holders of a majority in principal amount of the Securities of any one
or more series or of all the Securities, as the case may be (voting as one
class), at the time outstanding (determined as provided in Section 8.04) shall
have the right to direct the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee with respect to such one or more series;
provided, however, that, subject to Section 7.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee being advised by
Opinion of Counsel determines that the action so directed may not lawfully be
taken, or if the Trustee in good faith shall, by a Responsible Officer or
Officers of the Trustee, determine that the proceedings so directed would be
illegal or involve it in personal liability or be unduly prejudicial to the
rights of Securityholders of such one or more series not parties to such
direction, and provided further that nothing in this Indenture shall impair the
right of the Trustee to take any action deemed proper by the Trustee and which
is not inconsistent with such direction by such Securityholders of such one or
more series. The holders of a majority in principal amount of the Securities of
all series as to which a default hereunder has occurred (all series voting as
one class) at the time outstanding (determined as provided in Section 8.04) and,
in the case of any Securities of a series issued to a Bear Stearns Trust, the
holders of a majority in aggregate liquidation amount of the Preferred
Securities issued by such Bear Stearns Trust, may waive any past default
hereunder with respect to such series and its consequences, except a default in
the payment of the principal of or interest on any of such Securities or in
respect of a covenant or provision hereof which under Article X cannot be
modified or amended without the consent of the holder of each Security so
affected. Upon any such waiver, such default shall cease to exist and any Event
of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture, but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon. Any such waiver shall be
deemed to be on behalf of the holders of all the Securities of such series or,
in the case of a waiver by holders of Preferred Securities issued by such Bear
Stearns Trust, on behalf of all holders of Preferred Securities issued by such
Bear Stearns Trust.
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SECTION 6.07. Trustee to Give Notice of Defaults Known to It, but May
Withhold in Certain Circumstances.
The Trustee shall, within 90 days after the occurrence of any default
hereunder with respect to the Securities of any series, give to the holders of
the Securities of such series in the manner and to the extent provided in
subsection (c) of Section 5.04 with respect to reports pursuant to subsection
(a) of said Section 5.04, notice of such default known to the Trustee unless
such default shall have been cured, remedied or waived before the giving of such
notice (the term "default" for the purposes of this Section being hereby defined
to be the events specified in clauses (c), (d) and (e) of Section 6.01, default
in the payment of the principal of or interest on Securities of any series, and
any additional events specified in the terms of any series of Securities
pursuant to Section 2.01, not including any periods of grace provided for
therein, and irrespective of the giving of written notice specified in any such
terms, and irrespective of the delivery of any Officers' Certificate provided
for in any such terms); provided, that, except in the case of default in the
payment of the principal of or interest on any of the Securities of such series,
the Trustee shall be protected in withholding such notice if and so long as the
Board of Directors, the Executive Committee, or a Trust Committee of directors
and/or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the holders of the Securities
of such series.
SECTION 6.08. Requirement of an Undertaking to Pay Costs in Certain Suits
under the Indenture or against the Trustee.
All parties to this Indenture agree, and each holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs, including reasonable attorneys' fees, against any
party litigant in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any holder of Securities of any series, or group of such
Securityholders, holding in the aggregate more than ten percent in principal
amount of all the Securities (all series considered as one class) outstanding;
or to any suit instituted by any Securityholder for the enforcement of the
payment of the principal of or interest on any Security, on or after the due
date expressed in such Security (or in the case of any redemption, on or after
the date fixed for redemption).
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ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01. Upon Event of Default Occurring and Continuing, Trustee Shall
Exercise Powers Vested in It, and Use Same Degree of Care and Skill in Their
Exercise, as a Prudent Man Would Use.
The Trustee, prior to the occurrence of an Event of Default and after the
curing, remedying or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default has occurred (which has not
been cured, remedied or waived) the Trustee shall exercise such of the rights
and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affair.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own willful misconduct; provided, however, that
(a) Prior to the occurrence of an Event of Default and after the curing,
remedying or waiving of all Events of Default which may have occurred:
(1) The duties and obligations of the Trustee shall be determined
solely by the express provisions of this Indenture and the Trustee
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) In the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Indenture;
(b) The Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer or Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts;
(c) The Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
holders of Securities pursuant to Section 6.06 relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture;
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(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section
7.01; and
(e) None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers, if there is reasonable ground for believing that
the repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
SECTION 7.02. Reliance on Documents, Opinions, Etc.
Except as otherwise provided in Section 7.01:
(a) The Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond, debenture, note or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company mentioned herein
shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specially prescribed); and any Resolution
of the Company may be evidenced to the Trustee by a copy thereof certified by
the Secretary or an Assistant Secretary of the Company;
(c) The Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with such written advice or Opinion of Counsel;
(d) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Securityholders, pursuant to the provisions of this Indenture, unless
such Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby;
(e) The Trustee shall not be liable for any action taken or omitted by it
in good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, debenture,
note or other paper or document, unless requested in writing to do so by the
holders of Securities pursuant to Section 6.06; provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation, is
in the opinion of
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the Trustee, not reasonably assured to the Trustee by the security afforded to
it by the terms of this Indenture, the Trustee may require reasonable indemnity
against such costs, expenses or liabilities as a condition to so proceeding; and
provided further, that nothing in this subsection (f) shall require the Trustee
to give the Securityholders any notice other than that required by Section 6.07.
The reasonable expense of every such examination shall be paid by the Company
or, if paid by the Trustee, shall be repaid by the Company upon demand;
(g) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) The Trustee shall be under no responsibility for the approval by it in
good faith of any expert for any of the purposes expressed in this Indenture.
SECTION 7.03. Trustee Not Liable for Recitals in Indenture or in
Securities.
The recitals contained herein and in the Securities (other than the
certificate of authentication on the Securities) shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of any of the Securities
or of the proceeds thereof.
SECTION 7.04. May Own Securities.
The Trustee or any agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not Trustee or such agent.
SECTION 7.05. Moneys Received by Trustee to Be Held in Trust without
Interest.
Subject to the provisions of Section 12.04, all moneys received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder.
SECTION 7.06. Trustee Entitled to Compensation, Reimbursement and
Indemnity.
The Company covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a trustee of
any express trust), and, the Company will pay or reimburse the Trustee upon its
request for all reasonable expenses,
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disbursements and advances incurred or made by the Trustee in connection with
the acceptance or administration of its trust under this Indenture (including
the reasonable compensation and the expenses and disbursements of its agents and
counsel and of all persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Company also covenants to indemnify the Trustee and its agents for, and to hold
them harmless against, any loss, liability or expense incurred without
negligence or bad faith on their part and arising out of or in connection with
the acceptance or administration of this trust and performance of their duties
hereunder, including the costs and expenses (including fees and disbursements of
their counsel) of defending themselves against any claim or liability in
connection with the exercise or performance of any of the powers or duties
hereunder. The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture and the resignation or removal of the Trustee. Such
additional indebtedness shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of or interest, if any,
on particular Securities.
SECTION 7.07. Right of Trustee to Rely on Officers' Certificate Where No
Other Evidence Specifically Prescribed.
Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking
suffering or omitting any action hereunder, such matter (unless other evidence
in respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee be deemed to be conclusively
proved and established by an Officers' Certificate delivered to the Trustee, and
such Certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or
omitted by it under the provisions of this Indenture upon the faith thereof.
SECTION 7.08. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any conflicting interest, within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under any Trust Agreement and the Trust
Securities issued or to be issued thereunder; any Preferred Securities Guarantee
Agreement relating to a Bear Stearns Trust (as defined herein and in the
Existing Indenture) between the Company and The Chase Manhattan Bank, as
guarantee trustee; any Amended and Restated Trust Agreement related to a Bear
Stearns Trust (as defined in the Existing Indenture) among the Company, as
depositor, The Chase Manhattan Bank, as property trustee, Chase Manhattan Bank
Delaware, as Delaware trustee, the administrators named therein and the
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several holders and the Trust Securities issued or to be issued thereunder; or
the Existing Indenture and the securities issued or to be issued thereunder.
SECTION 7.09. Requirements for Eligibility of Trustee.
---------------------------------------
The Trustee hereunder shall at all times be a corporation organized and
doing business under the laws of the United States or any State or territory
thereof or of the District of Columbia authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by federal, state,
territorial, or District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 7.10.
Neither the Company, any other obligor upon the Securities, nor any person
directly or indirectly controlling, controlled by, or under common control with
the Company or any such obligor shall serve as Trustee under this Indenture.
SECTION 7.10. Resignation of Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any
time resign with respect to one or more or all series of Securities by giving
written notice of such resignation to the Company and by giving to the holders
of Securities of the applicable series notice thereof in the manner and to the
extent provided in subsection (c) of Section 5.04 with respect to reports
pursuant to subsection (a) of Section 5.04. Upon receiving such notice of
resignation and if the Company shall deem it appropriate evidence satisfactory
to it of such mailing, the Company shall promptly appoint a successor Trustee
with respect to the applicable series (it being understood that any successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and at any time there shall be only one Trustee with respect to the
Securities of any particular series) by written instrument, in duplicate,
executed pursuant to a Resolution of the Company, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
Trustee. If no successor Trustee shall have been so appointed with respect to
any series and have accepted appointment within 30 days after the mailing of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee, or any
Securityholder who has been a bona fide holder of a Security or Securities of
the applicable series for at least six months may, subject to the provisions of
Section 6.08, on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor Trustee. Such court may
thereupon after such notice, if any, as it may deem proper and prescribe,
appoint a successor Trustee.
(b) In case at any time any of the following shall occur:
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(1) The Trustee shall fail to comply with the provisions of
Section 7.08 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Security or
Securities of the applicable series for at least six months, unless the
Trustee's duty to resign is stayed as provided in Section 310(b) of the
Trust Indenture Act, or
(2) The Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and shall fail to resign after written
request therefor by the Company or by any such Securityholder, or
(3) The Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then, in any
such case, the Company may remove the Trustee with respect to the
applicable series and appoint a successor Trustee with respect to the
applicable series by written instrument, in duplicate, executed
pursuant to a Resolution of the Company, one copy of which instrument
shall be delivered to the Trustee so removed and one copy to the
successor Trustee, or, subject to the provisions of Section 6.08, any
Securityholder who has been a bona fide holder of a Security or
Securities of the applicable series for at least six months may, on
behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee with respect to the applicable
series. Such court may thereupon, after such notice, if any, as it may
deem proper and prescribe, remove the Trustee and appoint a successor
Trustee.
(c) The holders of a majority in principal amount of the Securities of any
one series voting as a separate class or all series voting as one class at the
time outstanding (determined as provided in Section 8.04) may at any time remove
the Trustee with respect to the applicable series or all series, as the case may
be, and appoint a successor Trustee with respect to the applicable series or all
series, as the case may be, by written instrument or instruments signed by such
holders or their attorneys-in-fact duly authorized, or by the affidavits of the
permanent chairman and secretary of a meeting of the Securityholders evidencing
the vote upon a resolution or resolutions submitted thereto with respect to such
removal and appointment (as provided in Article IX), and by delivery thereof to
the Trustee so removed, to the successor Trustee and to the Company.
(d) Any resignation or removal of the Trustee and any appointment of a
successor Trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor Trustee as provided in
Section 7.11.
SECTION 7.11. Acceptance by Successor Trustee.
Any successor Trustee with respect to all series of Securities appointed as
provided in Section 7.10 shall execute, acknowledge and deliver to the Company
and to its predecessor Trustee an instrument accepting such appointment
hereunder, and thereupon the
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resignation or removal of the predecessor Trustee with respect to all series
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with like
effect as if originally named as Trustee herein; but, nevertheless, on the
written request of the Company or of the successor Trustee, the Trustee ceasing
to act shall, upon payment of any amounts then due it pursuant to the provisions
of Section 7.06, execute and deliver an instrument transferring to such
successor Trustee all the rights and powers with respect to such series of the
Trustee so ceasing to act. Upon the request of any such successor Trustee, the
Company shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor Trustee all such rights
and powers. Any Trustee ceasing to act shall, nevertheless, retain a lien upon
all property or funds held or collected by such Trustee or any successor Trustee
to secure any amounts then due it pursuant to the provisions of Section 7.06.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of such series
shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of such series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of such
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental Indenture shall
constitute such Trustees co-Trustees of the same trust and that each such
Trustee shall be Trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of such series to which
the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of such series to
which the appointment of such successor Trustee relates.
No successor Trustee shall accept appointment as provided in this Section
unless at the time of such acceptance such successor Trustee shall be qualified
under the provisions of Section 7.08 and eligible under the provisions of
Section 7.09.
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Upon acceptance of appointment by a successor Trustee as provided in this
Section, the successor Trustee shall at the expense of the Company transmit
notice of the succession of such Trustee hereunder to the holders of Securities
of any applicable series in the manner and to the extent provided in subsection
(c) of Section 5.04 with respect to reports pursuant to subsection (a) of said
Section 5.04.
SECTION 7.12. Successor to Trustee by Merger, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be qualified under the provisions of Section
7.08 and eligible under the provisions of Section 7.09, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee, and deliver such
Securities so authenticated; and in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of any predecessor hereunder or in the name
of the successor Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have; provided, however, that the
right to adopt the certificate of authentication of any predecessor Trustee or
to authenticate Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
SECTION 7.13. Limitations on Rights of Trustee as a Creditor to Obtain
Payment of Certain Claims within Three Months Prior to Default or During
Default, or to Realize on Property as such Creditor Thereafter.
(a) Subject to the provisions of subsection (b) of this Section, if the
Trustee shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company or of any other obligor on the Securities within three
months prior to a default, as defined in subsection (c) of this Section, or
subsequent to such a default, then, unless and until such default shall be
cured, the Trustee shall set apart and hold in a special account for the benefit
of the Trustee individually, the holders of the Securities of the one or more
indenture securities (as defined in subsection (c) of this Section):
(1) An amount equal to any and all reductions in the amount due
and owing upon any claim as such creditor in respect of principal or
interest, effected alter the beginning of such three months' period,
and valid as against the Company and its other creditors, except any
such reduction resulting from the receipt or disposition of
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any property described in paragraph (2) of this subsection, or from the
exercise of any right of set-off which the Trustee could have exercised
if a petition in bankruptcy had been filed by or against the Company
upon the date of such default; and
(2) All property received by the Trustee in respect of any claims
as such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three
months' period, or an amount equal to the proceeds of any such property
if disposed of, subject, however, to the rights, if any, of the Company
and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) To retain for its own account (i) payments made on account of
any such claim by any person (other than the Company) who is liable
thereon, (ii) the proceeds of the bona fide sale of any such claim by
the Trustee to a third person, and (iii) distributions made in cash,
securities, or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to title 11 of the United States Code or
applicable state laws;
(B) To realize, for its own account, upon any property held by it
as security for any such claim, if such property was so held prior to
the beginning of such three months' period;
(C) To realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security
for any such claim, if such claim was created after the beginning of
such three months' period and such property was received as security
therefor simultaneously with the creation thereof, and if the Trustee
shall sustain the burden of proving that at the time such property was
so received, the Trustee had no reasonable cause to believe that a
default, as defined in subsection (c) of this Section, would occur
within three months; or
(D) To receive payment on any claim referred to in paragraph (B)
or (C) against the release of any property held as security for such
claim as provided in such paragraph (B) or (C), as the case may be, to
the extent of the fair value of such property.
For the purposes of paragraphs (B), (C), and (D), property substituted
after the beginning of such three months' period for property held as security
at the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and to the
extent that any claim referred to in any such paragraphs is created in renewal
of or in substitution for or for the purpose of repaying or refunding any
pre-existing claim of the Trustee as such creditor, such claim shall have the
same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned between the
Trustee, the holders
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of Securities of the one or more series for which it is acting as Trustee, and
the holders of other indenture securities in such manner that the Trustee, such
Securityholders and the holders of other indenture securities realize, as a
result of payments from such special account and payments of dividends on claims
filed against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to title 11 of the United States Code or applicable
state law, the same percentage of their respective claims, figured before
crediting to the claim of the Trustee anytime on account of the receipt by it
from the Company of the funds and property in such special account and before
crediting to the respective claim's of the Trustee, such Securityholders, and
the holders of other indenture securities dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to title 11 of the United States Code or applicable state law, but
after crediting thereon receipts on account of the indebtedness represented by
their respective claims from all sources other than from such dividends and from
the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim in bankruptcy or receivership or in
proceedings for reorganization pursuant to title 11 of the United States Code or
applicable state law, whether such distribution is made in cash, securities, or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceeding for reorganization is pending shall have jurisdiction
(i) to apportion among the Trustee, such Securityholders, and the holders of
other indenture securities, in accordance with the provisions of this paragraph,
the funds and property held in such special account and the proceeds thereof, or
(ii) in lieu of such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness of
the distributions to be made to the Trustee, such Securityholders and the
holders of other indenture securities with respect to their respective claims,
in which event it shall not be necessary to liquidate or to appraise the value
of any securities or other property held in such special account or as security
for any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claim, or otherwise to apply
the provisions of this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of such
three months' period shall be subject to the provisions of this subsection (a)
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period, it
shall be subject to the provisions of this subsection (a) if and only if the
following conditions exist:
(i) The receipt of property or reduction of claim which would have
given rise to the obligation to account, if such Trustee had continued
as trustee, occurred after the beginning of such three months' period;
and
(ii) Such receipt of property or reduction of claim occurred
within three months after such resignation or removal;
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(b) There shall be excluded from the operation of subsection (a) of this
Section a creditor relationship arising from:
(1) The ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year
or more at the time of acquisition by the Trustee;
(2) Advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the
Securityholders at the time and in the manner provided in Section
5.04(c) with respect to reports pursuant to subsections (a) and (b)
thereof, respectively;
(3) Disbursements made in the ordinary course of business in the
capacity of Trustee under an indenture, transfer agent, registrar,
custodian, Paying Agent, fiscal agent or depositary, or other similar
capacity;
(4) An indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of
this Section;
(5) The ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve
Act, as amended, which is directly or indirectly a creditor of the
Company; or
(6) The acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within
the classification of self-liquidating paper as defined in subsection
(c) of this Section.
(c) As used in this Section:
(1) The term "default" shall mean any failure to make payment in
full of the principal of or interest upon any of the Securities or upon
the other indenture securities when and as such principal or interest
becomes due and payable.
(2) The term "other indenture securities" shall mean securities
upon which the Company is an obligor (as defined in the Trust Indenture
Act of 1939, as amended) outstanding under any other indenture (A)
under which the Trustee is also trustee, (B) which contains provisions
substantially similar to the provisions of subsection (a) of this
Section, and (C) under which a default exists at the time of the
apportionment of the funds and property held in said special account.
(3) The term "cash transaction" shall mean any transaction in
which full payment for goods or securities sold is made within seven
days after delivery of the
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goods or securities in currency or in checks or other orders drawn upon
banks or bankers and payable upon demand.
(4) The term "self-liquidating paper" shall mean any draft, bill
of exchange, acceptance or obligation which is made, drawn, negotiated
or incurred by the Company for the purpose of financing the purchase,
processing, manufacture, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise, or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
(5) The term "Company" shall mean any obligor upon the Securities.
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Evidence of Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a specified
percentage in principal amount of the Securities of any or all series may take
any action (including the making of any demand or request, the giving of any
notice, consent, or waiver or the taking of any other action), the fact that at
the time of taking any such action the holders of such specified percentage have
joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by such Securityholders in person or by
agent or proxy appointed in writing, or (b) by the record of such holders of
Securities voting in favor thereof at any meeting of such Securityholders duly
called and held in accordance with the provisions of Article IX, or (c) by a
combination of such instrument or instruments and any such record of such a
meeting of such Securityholders.
If there shall be more than one Trustee acting hereunder with respect to
separate series of Securities, such Trustees shall collaborate, if necessary, in
acting under Article IX and in determining whether the holders of a specified
percentage in principal amount of the Securities of any or all series have taken
any such action.
SECTION 8.02. Proof of Execution of Instruments and of Holding of
Securities.
Subject to the provisions of Sections 7.01, 7.02 and 9.05, proof of the
execution of any instrument by a Securityholder or his agent or proxy and proof
of the holding by any person of any of the Securities shall be sufficient if
made in the following manner:
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The fact and date of the execution by any such person of any instrument may
be proved in any reasonable manner acceptable to the Trustee.
The ownership of Securities of any series shall be proved by the Register
of such Securities of such series, or by certificates of the Security registrar
or registrars thereof.
The Trustee shall not be bound to recognize any person as a Securityholder
unless and until the title to the Securities held by him is proved in the manner
in this Article VIII provided.
The record of any Securityholders' meeting shall be proved in the manner
provided in Section 9.06.
The Trustee may accept such other proof or require such additional proof of
any matter referred to in this Section as it shall deem reasonable.
SECTION 8.03. Who May be Deemed Owners of Securities.
Prior to due presentment for registration of transfer of any Security, the
Company, the Trustee and any agent of the Company or the Trustee may deem and
treat the person in whose name such Security shall be registered upon the
Register of Securities of the series of which such Security is a part as the
absolute owner of such Security (whether or not such Security shall be overdue
and notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or an account of the principal of and interest,
subject to Section 2.03, on such Security and for all other purposes; and
neither the Company nor the Trustee nor any agent of the Company or the Trustee
shall be affected by any notice to the contrary. All such payments so made to
any such holder for the time being, or upon his order, shall be valid, and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Security.
SECTION 8.04. Securities Owned by Company or Controlled or Controlling
Persons Disregarded for Certain Purposes.
In determining whether the holders of the requisite principal amount of
Securities have concurred in any demand, direction, request, notice, vote,
consent, waiver or other action under this Indenture, Securities which are owned
by the Company or any other obligor on the Securities or by any person directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Company or any other obligor on the Securities shall be
disregarded and deemed not to be outstanding for the purpose of any such
determination, provided that for the purposes of determining whether the Trustee
shall be protected in relying on any such demand, direction, request, notice,
vote, consent, waiver or other action, only Securities which a Responsible
Officer of the Trustee assigned to its principal office knows are so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as outstanding for the purposes of this Section, if the pledgee
shall establish to the satisfaction of the Trustee the pledgee's right to vote
such Securities and that the pledgee is not a person directly or indirectly
controlling or controlled
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by or under direct or indirect common control with the Company or any such other
obligor. Upon request of the Trustee, the Company shall furnish to the Trustee
promptly an Officers' Certificate listing and identifying all Securities, if
any, known by the Company to be owned or held by or for the account of the
Company or any other obligor on the Securities or by any person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any other obligor on the Securities; and, subject to
the provisions of Section 7.01, the Trustee shall be entitled to accept such
Officers' Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Securities not listed therein are outstanding for the
purpose of any such determination.
SECTION 8.05. Instruments Executed by Securityholders Bind Future Holders.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any action by the holders of the
percentage in principal amount of the Securities specified in this Indenture in
connection with such action, any holder of a Security which is shown by the
evidence to be included in the Securities the holders of which have consented to
such action may, by filing written notice with the Trustee at its principal
office and upon proof of holding as provided in Section 8.02, revoke such action
so far as concerns such Security. Except as aforesaid any such action taken by
the holder of any Security and any direction, demand, request, notice, waiver,
consent, vote or other action of the holder of any Security which by any
provisions of this Indenture is required or permitted to be given shall be
conclusive and binding upon such holder and upon all future holders and owners
of such Security, and of any Security issued in lieu thereof or upon
registration of transfer thereof, irrespective of whether any notation in regard
thereto is made upon such Security. Any action taken by the holders of the
percentage in principal amount of the Securities of any or all series specified
in this Indenture in connection with such action shall be conclusively binding
upon the Company, the Trustee and the holders of all of the Securities of such
series subject, however, to the provisions of Section 7.01.
ARTICLE IX
SECURITYHOLDERS' MEETINGS
SECTION 9.01. Purposes for which Meeting May Be Called.
A meeting of holders of Securities of any or all series may be called at
any time and from time to time pursuant to the provisions of this Article for
any of the following purposes:
(1) To give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of any
default hereunder and its consequences, or to take any other action
authorized to be taken by holders of Securities of any or all series,
as the case may be, pursuant to any of the provisions of Article VI;
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(2) To remove the Trustee and appoint a successor Trustee pursuant
to the provisions of Article VII;
(3) To consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
(4) To take any other action authorized to be taken by or on
behalf of the holders of any specified principal amount of the
Securities of any or all series, as the case may be, under any other
provision of this Indenture or under applicable law.
SECTION 9.02. Manner of Calling Meetings.
The Trustee may at any time call a meeting of Securityholders to take any
action specified in Section 9.01, to be held at such time and at such place in
the Borough of Manhattan, City of New York as the Trustee shall determine.
Notice of every meeting of Securityholders setting forth the time and place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be mailed not less than 20 nor more than 60 days prior to the
date fixed for the meeting.
SECTION 9.03. Call of Meeting by Company or Securityholders.
In case at any time the Company, pursuant to a resolution of its Board of
Directors, or the holders of not less than ten percent in principal amount of
the Securities of any or all series, as the case may be, then outstanding, shall
have requested the Trustee to call a meeting of holders of Securities of any or
all series, as the case may be, to take any action authorized in Section 9.01 by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed notice of such
meeting within 20 days after receipt of such request, then the Company or such
holders of Securities in the amount above specified may determine the time and
place in the Borough of Manhattan, City of New York for such meeting and may
call such meeting to take any action authorized in Section 9.01, by mailing
notice thereof as provided in Section 9.02.
SECTION 9.04. Who May Attend and Vote at Meetings.
To be entitled to vote at any meeting of Securityholders a person shall (a)
be a holder of one or more Securities with respect to which the meeting is being
held, or (b) be a person appointed by an instrument in writing as proxy by such
holder of one or more Securities. The only persons who shall be entitled to be
present or to speak at any meeting of Securityholders shall be the persons,
entitled to vote at such meeting and their counsel and any representatives of
the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 9.05. Regulations May Be Made by Trustee.
Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Securityholders, in
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regard to proof of the holding of Securities and of the appointment of proxies,
and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall think fit. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 8.02 and the appointment of any proxy shall be proved in the manner
specified in said Section 8.02; provided, however, that such regulations may
provide that written instruments appointing proxies regular on their face, may
be presumed valid and genuine without the proof hereinabove or in said Section
8.02 specified.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 9.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 8.04, at any meeting each
Securityholder or proxy shall be entitled to one vote for each $1,000 principal
amount of Securities held or represented by him, provided, however, that no vote
shall be cast or counted at any meeting in respect of any Security challenged as
not outstanding and ruled by the chairman of the meeting to be not outstanding;
provided, however, that each holder of Original Issue Discount Securities shall
be entitled to one vote for each $1,000 amount which would be due upon
acceleration of his Original Issue Discount Security on the date of the meeting.
The chairman of the meeting shall have no right to vote other than by virtue of
Securities held by him or instruments in writing as aforesaid duly designating
him as the person to vote on behalf of other Securityholders. Any meeting of
Securityholders duly called pursuant to the provisions of Section 9.02 or 9.03
may be adjourned from time to time, and the meeting may be held so adjourned
without further notice.
At any meeting of Securityholders, the presence of persons holding or
representing Securities in principal amount sufficient to take action on the
business for the transaction of which such meeting was called shall constitute a
quorum, but, if less than a quorum is present, the persons holding or
representing a majority in principal amount of the securities represented at the
meeting may adjourn such meeting with the same effect for all intents and
purposes, as though a quorum had been present.
SECTION 9.06. Manner of Voting at Meetings and Record to be Kept.
The vote upon any resolution submitted to any meeting of Securityholders
shall be by written ballots on which shall be subscribed the signatures of the
holders of Securities or of their representatives by proxy and the principal
amount or principal amounts of the Securities held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
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reports in duplicate of all votes cast at the meeting. A record in duplicate of
the proceedings of each meeting of Securityholders shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was mailed as
provided in Section 9.02. The record shall show the principal amount or
principal amounts of the Securities voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Company and the other to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 9.07. Exercise of Rights of Trustee, Securityholders and Holders of
Preferred Securities Not to Be Hindered or Delayed.
Nothing in this Article contained shall be deemed or construed to authorize
or permit, by reason of any call of a meeting of Securityholders or any rights
expressly or impliedly conferred hereunder to make such call any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee, to the Securityholders or the holders of Preferred Securities under any
of the provisions of this Indenture or of the Securities.
ARTICLE X
SUPPLEMENTAL INDENTURES
SECTION 10.01. Purposes for Which Supplemental Indentures May Be Entered
into without Consent of Securityholders.
The Company, when authorized by a Resolution of the Company, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto, in form satisfactory to such Trustee (which
shall comply with the provisions of the Trust Indenture Act of 1939 as then in
effect), for one or more of the following purposes:
(a) To evidence the succession of another corporation to the Company, or
successive successions, and the assumption by the successor corporation of the
covenants, agreements and obligations of the Company pursuant to Article XI
hereof and to comply with Section 15.07.
(b) To add to the covenants of the Company such further covenants,
restrictions or conditions as the Company and the Trustee shall consider to be
for the protection of the holders of all or any series of Securities (and if
such covenants, restrictions or conditions are to be for the benefit of less
than all series of Securities, stating that such covenants, restrictions or
conditions are expressly being included solely for the benefit of such
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series), and to make the occurrence, or the occurrence and continuance, of a
default in any such additional covenants, restrictions or conditions a default
or an Event of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth; provided, however, that
in respect to any such additional covenant, restriction or condition such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such default or
may limit the remedies available to the Trustee upon such default;
(c) To add or change any of the provisions of this Indenture to such extent
as shall be necessary to permit or facilitate the issuance of Securities in
bearer form, registrable or not registrable as to principal, and with or without
interest coupons;
(d) To change or eliminate any of the provisions of this Indenture;
provided, however, that any such change or elimination shall become effective
only when there is no Security of any series outstanding created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision;
(e) To establish the form or terms of Securities of any series as permitted
by Sections 2.01 and 2.02;
(f) To cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provisions contained herein or in any supplemental
indenture, or to make such other provision in regard to matters or questions
arising under this Indenture or any supplemental indenture; provided that such
action shall not adversely affect the interest of the holders of Securities of
any series in any material respect or, in the case of the Securities of a series
issued to a Bear Stearns Trust and for so long as any of the corresponding
series of Preferred Securities issued by such Bear Stearns Trust shall remain
outstanding, the holders of such Preferred Securities;
(g) To mortgage or pledge to the Trustee as security for the Securities any
property or assets which the Company may desire to mortgage or pledge as
security for the Securities; and
(h) To qualify, or maintain the qualification of, the Indenture under the
Trust Indenture Act.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer, mortgage, pledge or assignment of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
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Any supplemental indenture authorized by the provisions of this Section may
be executed by the Company and the Trustee without the consent of the holders of
any of the Securities at the time outstanding, notwithstanding any of the
provisions of Section 10.02.
SECTION 10.02. Modification of Indenture with Consent of Holders of a
Majority in Principal Amount of Securities.
With the consent (evidenced as provided in Section 8.01) of the holders of
not less than a majority in principal amount of the Securities of all series at
the time outstanding (determined as provided in Section 8.04) affected by such
supplemental indenture (voting as one class), the Company, when authorized by a
Resolution of the Company, and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall be in
conformity with the provisions of the Trust Indenture Act of 1939 as then in
effect) for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the holders of the
Securities of each such series; provided, however, that no such supplemental
indenture shall (i) change the fixed maturity of any Securities, or reduce the
rate or extend the time of payment of any interest thereon, or reduce the
principal amount thereof, or change the provisions pursuant to which the rate of
interest on any Security 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 herewith, 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 Security 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 such supplemental indenture,
without the consent of the holders of all Securities then Outstanding, or (iii)
modify any of the provisions of this Section, Section 4.07 or Section 6.06,
except to increase any such percentage or to provide that certain other
provisions of this 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 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 that, in the case of the
Securities of a series issued to a Bear Stearns Trust, so long as any of the
corresponding series of Preferred Securities issued by such Bear Stearns 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 Stearns Trust being classified as other
than a grantor trust for United States federal income taxes), and no termination
of this 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 this Indenture shall be effective, without the prior consent of the
holders of at least a majority of the aggregate liquidation preference 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, Compounded
Interest or Special Interest, if any) thereon have been paid in full; and (ii)
no amendment shall
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be made to Section 6.05 of this Indenture that would impair the rights of the
holders of Preferred Securities provided therein without the prior consent of
the holders of each Preferred Security 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,
Compounded Interest and Special Interest) thereon have been paid in full.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities or Preferred Securities,
or which modifies the rights of holders of Securities or holders of Preferred
Securities of such series with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the holders of
Securities or holders of Preferred Securities of any other series.
Upon the request of the Company, accompanied by a copy of a Resolution of
the Company certified by the Secretary or an Assistant Secretary of the Company
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company
shall mail a notice to the holders of Securities of each series so affected,
setting forth in general terms the substance of such supplemental indenture. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 10.03. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the provisions
of this Article, this Indenture shall be and be deemed to be modified and
amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the holders of Securities shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
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The Trustee shall be entitled to receive, and subject to the provisions of
Section 7.01 shall be entitled to rely upon, an Opinion of Counsel as conclusive
evidence that any such supplemental indenture complies with the provisions of
this Article 10.
SECTION 10.04. Securities May Bear Notation of Changes by Supplemental
Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article, or after any
action taken at a Securityholders' meeting pursuant to Article IX, may bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture or as to any action taken at any such meeting. If the
Company or the Trustee shall so determine, new Securities so modified as to
conform, in the opinion of the Trustee and the Board of Directors of the
Company, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Securities then outstanding.
SECTION 10.05. Revocation and Effect of Consents.
Subject to Section 8.05, until an amendment, supplement, waiver or other
action becomes effective, a consent to it by a Securityholder of a Security is a
continuing consent conclusive and binding upon such Securityholder and every
subsequent Securityholder of the same Security or portion thereof, and of any
Security issued upon the registration of transfer thereof or in exchange
therefor or in place thereof, even if notation of the consent is not made on any
such Security. Subject to Section 8.05, any such Securityholder or subsequent
Securityholder may not revoke the consent as to his Security or portion of a
Security.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Securityholders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the
preceding paragraph, those Persons who were Securityholders at such record date
(or their duly designated proxies), and only such Persons, shall be entitled to
consent or revoke such consent to such amendment, supplement or waiver, whether
or not such Persons continue to be Securityholders after such record date. No
such consent shall be valid or effective for more than 180 days after such
record date.
After an amendment, supplement, waiver or other action becomes effective,
it shall bind every Securityholder.
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ARTICLE XI
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 11.01. Company May Consolidate, Etc., on Certain Terms.
The Company covenants that it will not merge or consolidate with any other
corporation or sell or convey all or substantially all of its assets to any
person, firm or corporation, unless (i) either the Company shall be the
continuing corporation, or the successor corporation (if other than the Company)
shall be a corporation organized and existing under the laws of the United
States of America or a State thereof or the District of Columbia and such
corporation shall expressly assume the due and punctual payment of the principal
of and interest on all the Securities, according to their tenor, and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed by the Company by supplemental indenture in form
satisfactory to the Trustee, executed and delivered to the Trustee by such
corporation, (ii) the Company or such successor corporation, as the case may be,
shall not, immediately after such merger or consolidation, or such sale or
conveyance, be in default in the performance of any such covenant or condition,
and (iii) in the case of Securities of a series issued to a Bear Stearns Trust,
such consolidation, merger, sale or conveyance is permitted under the related
Trust Agreement and Guarantee and does not give rise to any breach or violation
of the related Trust Agreement or Guarantee.
SECTION 11.02. Successor Corporation Substituted.
In case of any such consolidation, merger, sale or conveyance and upon any
such assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it had
been named herein as the party of the first part. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Company, any or all of the Securities issuable hereunder which
theretofore shall not have been delivered to the Trustee; and upon the order of
such successor corporation, instead of the Company, and subject to all the
terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Securities which previously shall have
been signed and delivered by the officers of the Company to the Trustee, and any
Securities which such successor corporation thereafter shall cause to be signed
and delivered to the Trustee. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale or conveyance such changes
in phraseology and form (but not in substance) may be made in the Securities
thereafter to be issued as may be appropriate.
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SECTION 11.03. Opinion of Counsel to Trustee.
The Trustee shall be entitled to receive, and subject to the provisions of
Section 7.01 shall be entitled to rely upon, an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale or conveyance and any such
assumption, complies with the provisions of this Article and that all conditions
precedent herein provided for relating to such transaction have been complied
with.
ARTICLE XII
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 12.01. Satisfaction and Discharge of Indenture.
If (a) the Company shall deliver to the Trustee for cancellation all
Securities of any series theretofore authenticated (other than any Securities of
such series which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.07) and not theretofore canceled,
or (b) all the Securities of such series not theretofore canceled or delivered
to the Trustee for cancellation shall have become due and payable, or are by
their terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and the Company shall deposit with the
Trustee as trust funds the entire amount sufficient to pay at maturity or upon
redemption all of such Securities not theretofore canceled or delivered to the
Trustee for cancellation, including principal and any interest due or to become
due to such date of maturity or redemption date, as the case may be, and if in
either case the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company with respect to Securities of such series, then
this Indenture shall cease to be of further effect with respect to Securities of
such series (except as to (i) remaining rights of registration of transfer,
conversion, substitution and exchange and the Company's right of optional
redemption of Securities of such series, (ii) rights hereunder of holders to
receive payments of principal of and any interest on, the Securities of such
series, and other rights, duties and obligations of the holders of Securities of
such series as beneficiaries hereof with respect to the amounts, if any, so
deposited with the Trustee, and (iii) the rights, obligations and immunities of
the Trustee hereunder), and the Trustee, on demand of the Company, and at the
cost and expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture. The Company hereby agrees to
compensate the Trustee for any services thereafter reasonably and properly
rendered and to reimburse the Trustee for any costs or expenses theretofore and
thereafter reasonably and properly incurred by the Trustee in connection with
this Indenture or the Securities of such series.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Securities of any or all series, the obligations of the Company
to the Trustee under Section 7.06 hereof shall survive.
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SECTION 12.02. Application by Trustee of Funds Deposited for Payment of
Securities.
Subject to Section 12.04, all moneys deposited with the Trustee pursuant to
Section 12.01 shall be held in trust and applied by it to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent), to the holders of the particular Securities of such series, for
the payment or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest.
SECTION 12.03. Repayment of Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this Indenture with
respect to Securities of any series, all moneys with respect to Securities of
such series then held by any Paying Agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee and thereupon such
Paying Agent shall be released from all further liability with respect to such
moneys.
SECTION 12.04. Repayment of Moneys Held by Trustee.
Any moneys deposited with the Trustee or any Paying Agent for the payment
of the principal of or any interest on any Securities of any series and not
applied but remaining unclaimed by the holders of Securities of such series for
two years after the date upon which such payment shall have become due and
payable, shall, at the request of the Company, be repaid to the Company by the
Trustee or by such Paying Agent; and the holder of any of the Securities of such
series entitled to receive such payment shall thereafter look only to the
Company for the payment thereof; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once a week for two successive
weeks (in each case on any day of the week) in an Authorized Newspaper, or
mailed to the registered holders thereof, a notice that said moneys have not
been so applied and that after a date named therein any unclaimed balance of
said money then remaining will be returned to the Company.
ARTICLE XIII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS,
DIRECTORS AND EMPLOYEES
SECTION 13.01. Incorporators, Stockholders, Officers, Directors and
Employees of Company Exempt from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, 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
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enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no personal liability whatever shall attach to,
or is or shall be incurred by, the incorporators, stockholders, officers or
directors, as such, of the Company or any successor corporation, or any of them,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Securities or implied therefrom; and that any and all such
personal liability of every name and nature, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims
against every such incorporator, stockholder, officer or director, as such,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Securities or implied therefrom are hereby expressly waived and
released as a condition of and as a consideration for, the execution of this
Indenture and the issue of such Securities.
ARTICLE XIV
SUBORDINATION OF SECURITIES
SECTION 14.01. Agreement to Subordinate.
The Company, for itself, its successors and assigns, covenants and agrees,
and each holder of a Security of any series likewise covenants and agrees by his
acceptance thereof, that the Securities of any series shall be subordinate and
junior in right of payment to all Senior Indebtedness of the Company, and that
upon any payment or distribution of assets of the Company upon any liquidation,
dissolution, winding-up, reorganization, assignment for benefit of creditors,
marshaling of assets or any bankruptcy, insolvency, debt restructurings or
similar proceedings or in connection with any insolvency or bankruptcy
proceedings of the Company, the holders of Senior Indebtedness of the Company
shall first be entitled to receive payment in full of principal of (and premium,
if any) and interest, if any, on such Senior Indebtedness before any payment
shall be made on account of the principal of or interest on any of the
Securities. In the event of any such proceeding, after payment in full of all
sums owing with respect to Senior Indebtedness of the Company, the holders of
the Securities of each series, together with the holders of any obligations of
the Company ranking on a parity with the Securities, shall be entitled to be
paid from the remaining assets of the Company the amounts at the time due and
owing on account of unpaid principal of and interest on the Securities of any
series before any payment or other distribution, whether in cash, property or
otherwise, shall be made on account of any capital stock or any obligations of
the Company ranking junior to the Securities. In addition, in the event of any
such proceeding, if any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, including any such
payment or distribution which may be payable or deliverable by reason of the
payment of any other indebtedness of the Company being subordinated to the
payment of the Securities of any series shall be received by the Trustee or the
holders of the Securities of any series before all Senior Indebtedness of the
Company is paid in full, such payment or distribution shall be held in trust for
the benefit of and shall be paid over to the holders of such Senior Indebtedness
of the Company or their representative or
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representatives or to the trustee or trustees under any indenture under which
any instruments evidencing any of such Senior Indebtedness of the Company may
have been issued, ratably, for application to the payment of all Senior
Indebtedness of the Company remaining unpaid until all such Senior Indebtedness
of the Company shall have been paid in full, after giving effect to any
concurrent payment or distribution to the holders of such Senior Indebtedness of
the Company. The obligations of the Company in respect of the Securities of all
series shall rank on a parity with any obligations of the Company ranking on a
parity with the Securities. Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.06.
The Company shall give prompt written notice to the Trustee of any
insolvency, receivership, conservatorship, reorganization, readjustment of debt,
marshaling of assets and liabilities or similar proceedings or any liquidation
or winding-up of or relating to the Company as a whole, whether voluntary or
involuntary and of any event specified in Section 14.09. The Trustee, subject to
the provisions of Section 7.01, shall be entitled to assume that, and may act as
if, no event referred to in the preceding sentence has occurred unless a
Responsible Officer of the Trustee assigned to the Trustee's Corporate Trustee
Administration Department has received at the principal office of the Trustee
from the Company or any one or more holders of Senior Indebtedness of the
Company or any trustee or representative therefor (who shall have been certified
or otherwise established to the satisfaction of the Trustee to be such a holder
or trustee or representative) written notice thereof. Upon any distribution of
assets of the Company referred to in this Article, the Trustee and holders of
the Securities of each series shall be entitled to rely upon any order or decree
of a court of competent jurisdiction in which proceedings relating to any event
specified in the first sentence of this paragraph are pending for the purpose of
ascertaining the persons entitled to participate in such distribution, the
holders of the Senior Indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon, and all other facts
pertinent thereto or to this Article, and the Trustee, subject to the provisions
of Article VII, and the holders of the Securities of each series shall be
entitled to rely upon a certificate of the liquidating trustee or agent or other
person making any distribution to the Trustee or to the holders of the
Securities of each series for the purpose of ascertaining the persons entitled
to participate in such distribution, the holders of the Senior Indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article.
In the absence of any such liquidating trustee, agent or other person, the
Trustee shall be entitled to rely upon a written notice by a Person representing
himself to be a holder of Senior Indebtedness of the Company (or a trustee or
representative on behalf of such holder) as evidence that such Person is a
holder of such Senior Indebtedness (or is such a trustee or representative). In
the event that the Trustee determines, in good faith, that further evidence is
required with respect to the right of any Person, as a holder of Senior
Indebtedness of the Company, to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of such
Senior Indebtedness held by such Person, as to the extent to which such Person
is entitled to participation in such payment or distribution, and as to other
facts pertinent to the rights of such Person under this Article,
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and if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
The Securities shall rank pari passu with, and shall not be superior in
right of payment to, any securities issued and outstanding under the Existing
Indenture.
SECTION 14.02. Obligation of the Company Unconditional.
Nothing contained in this Article or elsewhere in this Indenture is
intended to or shall impair, as between the Company and the holders of the
Securities of each series, the obligation of the Company, which is absolute and
unconditional, to pay to such holders the principal of and interest on such
Securities of each series when, where and as the same shall become due and
payable, all in accordance with the terms of such Securities, or is intended to
or shall affect the relative rights of such holders and creditors of the Company
other than the holders of the Senior Indebtedness of the Company, nor shall
anything herein or therein prevent the Trustee or the holder of any Security
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article of the
holders of Senior Indebtedness of the Company in respect of cash, property, or
securities of the Company received upon the exercise of any such remedy.
SECTION 14.03. Limitations on Duties to Holders of Senior Indebtedness of
the Company.
With respect to the holders of Senior Indebtedness of the Company, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness of
the Company shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness of the Company, except with respect to moneys held in trust
pursuant to the first paragraph of Section 14.01.
SECTION 14.04. Notice to Trustee of Facts Prohibiting Payment.
Notwithstanding any of the provisions of this Article or any other
provisions of this Indenture, the Trustee shall not at any time be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment of moneys to or by the Trustee unless and until a Responsible Officer of
the Trustee assigned to its Corporate Trustee Administration Department shall
have received at the principal office of the Trustee written notice thereof from
the Company or from one or more holders of Senior Indebtedness of the Company or
from any trustee or representative therefor who shall have been certified by the
Company or otherwise established to the reasonable satisfaction of the Trustee
to be such a holder or trustee or representative; and, prior to the receipt of
any such written notice, the Trustee, subject to the provisions of Section 7.01,
shall be entitled in all respects to assume that no such facts exist; provided,
however, that, if prior to the fifth Business Day preceding the date upon which
by the terms hereof any such moneys may become payable for any purpose, or in
the event of the execution of an instrument pursuant to Section 12.01
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acknowledging satisfaction and discharge of this Indenture, then if prior to the
second Business Day preceding the date of such execution, the Trustee shall not
have received with respect to such moneys the notice provided for in this
Section, then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such moneys and/or apply
the same to the purpose for which they were received, and shall not be affected
by any notice to the contrary which may be received by it on or after such date;
provided, however, no such application shall affect the obligations under this
Article of the Persons receiving such moneys from the Trustee.
SECTION 14.05. Application by Trustee of Moneys Deposited with It.
Anything in this Indenture to the contrary notwithstanding, any deposit of
moneys by the Company with the Trustee or any agent (whether or not in trust)
for any payment of the principal of or interest on any Securities shall, except
as provided in Section 14.04, be subject to the provisions of Section 14.01.
SECTION 14.06. Subrogation.
Subject to the payment in full of all Senior Indebtedness of the Company,
the holders of the Securities of each series shall be subrogated to the rights
of the holders of such Senior Indebtedness to receive payments or distributions
of assets of the Company applicable to such Senior Indebtedness until the
Securities shall be paid in full, and none of the payments or distributions to
the holders of such Senior Indebtedness to which the holders of the Securities
of any series or the Trustee would be entitled except for the provisions of this
Article or of payments over, pursuant to the provisions of this Article, to the
holders of such Senior Indebtedness by the holders of such Securities or the
Trustee shall, as between the Company, its creditors other than the holders of
such Senior Indebtedness, and the holders of such Securities, be deemed to be a
payment by the Company to or on account of such Senior Indebtedness; it being
understood that the provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the holders of such Securities,
on the one hand, and the holders of the Senior Indebtedness of the Company, on
the other hand.
SECTION 14.07. Subordination Rights Not Impaired by Acts or Omissions of
Company or Holders of Senior Indebtedness of the Company.
No right of any present or future holders of any Senior Indebtedness of the
Company to enforce subordination as herein provided shall at any time in any way
be prejudiced or impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by the Company with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof with which any such holder
may have or be otherwise charged. The holders of Senior Indebtedness of the
Company may, at any time or from time to time and in their absolute discretion,
change the manner, place or terms of payment, change or extend the time of
payment of, or renew or alter, any such Senior Indebtedness of the Company, or
amend or supplement any instrument pursuant to which any such Senior
Indebtedness of the Company is issued or by which it may be secured, or release
any security therefor, or exercise or refrain
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from exercising any other of their rights under the Senior Indebtedness of the
Company including, without limitation, the waiver of default thereunder, all
without notice to or assent from the holders of the Securities of each series or
the Trustee and without affecting the obligations of the Company, the Trustee or
the holders of such Securities under this Article.
SECTION 14.08. Authorization of Trustee to Effectuate Subordination of
Securities.
Each holder of a Security of any series, by his acceptance thereof,
authorizes and expressly directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effectuate, as between the holders of such
Securities and the holders of Senior Indebtedness of the Company, the
subordination provided in this Article. If, in the event of any proceeding or
other action relating to the Company referred to in the first sentence of
Section 14.01, a proper claim or proof of debt in the form required in such
proceeding or action is not filed by or on behalf of the holders of the
Securities of any series prior to fifteen days before the expiration of the time
to file such claim or claims, then the holder or holders of Senior Indebtedness
of the Company shall have the right to file and are hereby authorized to file an
appropriate claim for and on behalf of the holders of such Securities.
SECTION 14.09. No Payment when Senior Indebtedness in Default.
In the event and during the continuation of any default in the payment of
principal of (or premium, if any) or interest on any Senior Indebtedness, or in
the event that any event of default with respect to any Senior Indebtedness
shall have occurred and be continuing and shall have resulted in such Senior
Indebtedness becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable, unless and until such
event of default shall have been cured or waived or shall have ceased to exist
and such acceleration shall have been rescinded or annulled, or in the event any
judicial proceeding shall be pending with respect to any such default in payment
or such event or default, then no payment or distribution of any kind or
character, whether in cash, properties or securities shall be made by the
Company on account of principal of (or premium, if any) or interest (including
any Additional Sums, Additional Interest, Compounded Interest and Special
Interest), if any, on the Securities or on account of the purchase or other
acquisition of Securities by the Company or any subsidiary.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such holder, then and in such event payment shall be paid over and delivered
forthwith to the Company.
SECTION 14.10. Right of Trustee to Hold Senior Indebtedness of the Company.
The Trustee shall be entitled to all of the rights set forth in this
Article in respect of any Senior Indebtedness of the Company at any time held by
it in its individual
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capacity to the same extent as any other holder of such Senior Indebtedness, and
nothing in this Indenture shall be construed to deprive the Trustee of any of
its rights as such holder.
SECTION 14.11. Article XIV Not to Prevent Defaults.
The failure to make a payment pursuant to the terms of Securities of any
series by reason of any provision in this Article shall not be construed as
preventing the occurrence of a default under this Indenture.
ARTICLE XV
CONVERSION OF SECURITIES
SECTION 15.01. Applicability of Article.
Securities of any series which are convertible into Capital Stock of the
Company shall be convertible in accordance with their terms and (except as
otherwise specified as contemplated by Section 2.01 for Securities of any
series) in accordance with this Article.
SECTION 15.02. Conversion Privilege.
If Securities of a series are subject to conversion, as specified pursuant
to Section 2.01, then subject to and upon compliance with the provisions of this
Article, at the option of the holder thereof, any such Security may, at any time
until and including, but not after the close of business on the date specified
in such Security, or in case such Security or some portion thereof shall be
called for redemption pursuant to Section 3.02 prior to such date, then, with
respect to such Security or portion thereof as is so called, until and
including, but (if no default is made in making due provision for the payment of
the redemption price) not after, the close of business on, the date fixed for
redemption, be converted, in whole, or in part in whole multiples of $1,000
principal amount, at 100% of the principal amount of such Security (or portion
thereof), into fully paid and non-assessable shares of the Company's Capital
Stock, as specified in the Security, issuable upon conversion of the Securities,
at the conversion price in effect at the Date of Conversion (as hereinafter
defined).
SECTION 15.03. Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the holder of any Security
to be converted shall surrender such Security to the Company at any time during
usual business hours at the offices or agencies to be maintained by the Company
in accordance with the provisions of Section 4.02 with respect to the Securities
to be converted, accompanied by a fully executed written notice, in the form set
forth on the reverse of the Security, that the holder elects to convert such
Security or a stated portion thereof constituting a whole multiple of $1,000
principal amount, and, if such Security is surrendered for conversion during the
period between the close of business on the record date next preceding the
Interest Payment Date (as defined in the Security) and the opening of business
on the Interest Payment Date and has not been called for redemption on a
redemption date within such period (or on such
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Interest Payment Date), accompanied also by payment of an amount equal to the
interest payable on such Interest Payment Date on the principal amount of the
Security being surrendered for conversion. Such notice shall also state the name
or names (with address) in which the certificate or certificates for shares of
Capital Stock shall be issued. Securities surrendered for conversion shall (if
so required by the Company or the registrar of such Securities) be duly endorsed
by, or be accompanied by written instrument or instruments of transfer in form
satisfactory to the Company and such registrar duly executed by, the holder or
its attorney duly authorized in writing. As promptly as practicable after the
receipt of such notice and the surrender of such Security as aforesaid, the
Company shall, subject to the provisions of Section 15.09, issue and deliver at
such office or agency to such holder, or to such other person on his written
order, a certificate or certificates for the number of full shares of Capital
Stock issuable on such conversion of Securities in accordance with the
provisions of this Article and cash as provided in Section 15.04, in respect of
any fraction of a share of Capital Stock otherwise issuable upon conversion.
Such conversion shall be deemed to have been effected immediately prior to the
close of business on the date (herein called the "Date of Conversion") on which
such notice shall have been received by the Company and such Security shall have
been surrendered as aforesaid, accompanied (if required by this Section) also by
payment of an amount equal to the interest payable on the next Interest Payment
Date on the principal amount of the Security being surrendered for conversion,
and the person or persons in whose name or names any certificate or certificates
for shares of Capital Stock shall be issuable upon such conversion shall be
deemed to have become on the Date of Conversion the holder or holders of record
of the shares of Capital Stock represented thereby; provided, however, that any
such surrender on any date when the stock transfer books of the Company shall be
closed shall constitute the person or persons in whose name or names the
certificate or certificates for such shares are to be issued as the recordholder
or holders thereof for all purposes at the opening of business on the next
succeeding day on which such stock transfer books are open but such conversion
shall nevertheless be at the conversion price in effect at the close of business
on the date when such Security shall have been so surrendered with the
conversion notice. In the case of conversion of a portion, but less than all, of
a Security, the Company shall execute, and the Trustee shall authenticate and
deliver to the holder thereof, at the expense of the Company, a Security or
Securities in the aggregate principal amount of the unconverted portion of the
Security surrendered. Except as otherwise expressly provided in Section 2.01, no
payment or adjustment shall be made for interest accrued on any Security
converted or for accrued dividends or distributions on any Capital Stock issued
upon conversion of any Security or portion thereof.
SECTION 15.04. Fractional Interests.
No fractions of shares or scrip representing fractions of shares shall be
issued upon conversion of Securities. If more than one Security shall be
surrendered for conversion at one time by the same holder, the number of full
shares which shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Securities so surrendered. If any
fraction of a share of Capital Stock would, except for the provisions of this
Section, be issuable on the conversion of any Security or Securities, the
Company shall make payment in lieu thereof in an amount of United States dollars
equal to the
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value of such fraction computed on the basis of the current market price of the
Capital Stock, rounded to the nearest cent. The current market price of a share
of Capital Stock is the closing price reported by the New York Stock Exchange
consolidated transaction reporting system for the last trading day before the
Date of Conversion. In the absence of such a quotation, the Company shall
determine the current market price on the basis of such quotation or quotations
as it considers appropriate. Any determination that the Company or the Board of
Directors makes regarding fractional shares shall be conclusive.
SECTION 15.05. Conversion Price.
The conversion price per share of Capital Stock issuable upon conversion of
the Securities shall be as specified in such Securities.
SECTION 15.06. Adjustment of Conversion Price.
The conversion price (herein called the "Conversion Price") shall be
subject to adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend or make a distribution in
shares of Capital Stock, (2) subdivide its outstanding shares of Capital Stock
into a greater number of shares or (3) combine its outstanding shares of Capital
Stock into a smaller number of shares, the Conversion Price in effect
immediately prior to such action shall be adjusted so that the holder of any
Security thereafter surrendered for conversion shall be entitled to receive the
number of shares of Capital Stock which he would have owned immediately
following such action had such Security been converted immediately prior
thereto. An adjustment made pursuant to this subsection (a) shall become
effective immediately, except as provided in subsection (e) below, after the
record date in the case of a dividend and shall become effective immediately
after the effective date in the case of a subdivision or combination. If after
an adjustment a holder upon conversion of the Capital Stock may receive shares
of two or more classes of Capital Stock of the Company, the Company shall
determine the allocation of the adjusted Conversion Price between the classes of
Capital Stock. After such allocation, the conversion privilege and Conversion
Price of each class of Capital Stock shall thereafter be subject to adjustment
on terms comparable to those set forth in this paragraph.
(b) In case the Company shall issue rights or warrants to all holders of
Capital Stock entitling them (for a period not exceeding 45 days from the date
of such issuance) to subscribe for or purchase shares of Capital Stock at a
price per share less than the current market price per share (as determined
pursuant to subsection (d) below) of the Capital Stock on the record date
mentioned below, the Conversion Price shall be adjusted to a price, computed to
the nearest cent, in accordance with the following formula:
N x P
AP = --------------
CP x O + M
where:
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AP = the adjusted Conversion Price.
CP = the current Conversion Price.
O = the number of shares of Capital Stock outstanding on the
record date for the distribution.
N = the number of additional shares of Capital Stock offered.
P = the offering price per share of the additional shares.
M = the current market price per share of Capital Stock on the record
date. Such adjustment shall become effective immediately, except
as provided in subsection (e) below, after the record date for the
determination of holders entitled to receive such rights or
warrants.
(c) In case the Company shall distribute to all holders of Capital Stock,
evidences of indebtedness, equity securities other than Capital Stock or other
assets (other than cash dividends or other distributions to the extent paid from
current or retained earnings of the Company), or shall distribute to all holders
of Capital Stock rights or warrants to subscribe to securities (other than those
referred to in subsection (b) above), then in each such case the Conversion
Price shall be adjusted in accordance with the following formula:
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CP x M - F
AP = -----------
M
where:
AP = the adjusted Conversion Price.
CP = the current Conversion Price.
M = the current market price per share of Capital Stock on the record
date mentioned below.
F = the fair market value on the record date of the assets, securities,
rights or warrants applicable to one share of Capital Stock, as
determined by the Company. Such adjustment shall become effective
immediately, except as provided in subsection (e) below, after the
record date for the determination of stockholders entitled to receive
such distribution.
(d) For the purpose of any computation under subsections (b) and (c) above,
the current market price per share of Capital Stock on any date shall be deemed
to be the average of the closing price of the Capital Stock reported by the New
York Stock Exchange consolidated transaction reporting system for the 30
consecutive trading days commencing 45 trading days before the date of
determination. In the absence of one or more such quotations, the Company shall
determine the current market price on the basis of such quotations as it
considers appropriate.
(e) In any case in which this Section shall require that an adjustment be
made immediately following a record date, the Company may elect to defer the
effectiveness of such adjustment (but in no event until a date later than the
effective time of the event giving rise to such adjustment), in which case the
Company shall, with respect to any Security converted after such record date and
before such adjustment shall have become effective (i) defer paying any cash
payment pursuant to Section 15.04 or issuing to the holder of such Security the
number of shares of Capital Stock and other capital stock of the Company
issuable upon such conversion in excess of the number of shares of Capital Stock
and other capital stock of the Company issuable thereupon only on the basis of
the Conversion Price prior to adjustment, and (ii) not later than five Business
Days after such adjustment shall have become effective, pay to such holder the
appropriate cash payment pursuant to Section 15.04 and issue to such holder the
additional shares of Capital Stock and other capital stock of the Company
issuable on such conversion.
(f) No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in such price;
provided that any adjustments which by reason of this subsection (f) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under
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this Article shall be made to the nearest cent or to the nearest one-hundredth
of a share, as the case may be.
(g) Whenever the Conversion Price is adjusted as herein provided, the
Company shall promptly (i) file with the Trustee and each conversion agent an
Officers' Certificate setting forth the Conversion Price after such adjustment
and setting forth a brief statement of the facts requiring such adjustment,
which certificate shall be conclusive evidence of the correctness of such
adjustment, and (ii) mail or cause to be mailed a notice of such adjustment to
each holder of Securities entitled to the benefits of this Article at his
address as the same appears on the registry books of the Company.
Anything in this Section to the contrary notwithstanding the Company shall
be entitled to make such adjustments in the Conversion Price, in addition to
those required by this Section, and to make any election under Treasury
Regulation ss. 1.305-3(d)(2), as it in its discretion shall determine to be
advisable in order that any stock dividend, subdivision of shares, distribution
of rights or warrants to purchase stock or securities, or distribution of other
assets (other than cash dividends) hereafter made by the Company to its
stockholders shall not be taxable.
SECTION 15.07. Continuation of Conversion Privilege in Case of
Reclassification, Change, Merger, Consolidation or Sale of Assets.
If any of the following shall occur, namely: (a) any reclassification or
change of outstanding shares of Capital Stock issuable upon conversion of the
Securities (other than a change in par value, or from par value to no par value,
or from no par value to par value, or as a result of a subdivision or
combination), (b) any consolidation, merger or combination of the Company with
another corporation as a result of which the holders of Capital Stock shall be
entitled to receive stock, other securities or other assets with respect to or
in exchange for Capital Stock or (c) sale or conveyance of all or substantially
all of the property or business of the Company as an entirety as a result of
which the holders of Capital Stock shall be entitled to receive stock, other
securities or other assets with respect to or in exchange for Capital Stock,
then the Company or such successor or purchasing corporation, as the case may
be, shall, as a condition precedent to such reclassification, change,
consolidation, merger, combination, sale or conveyance, execute and deliver to
the Trustee a supplemental indenture (which shall conform to the Trust Indenture
Act of 1939 as in force at the date of the execution thereof) providing that the
holder of each Security then outstanding shall have the right to convert such
Security into the kind and amount of shares of stock and other securities and
property receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance by a holder of the number of shares of Capital
Stock issuable upon conversion of such Security immediately prior to such
reclassification, change, consolidation, merger, combination, sale or
conveyance. Such supplemental indenture shall provide for adjustments which
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article. If, in the case of any such consolidation, merger,
combination, sale or conveyance, the stock or other securities and property
receivable thereupon by a holder of shares of Capital Stock includes shares of
stock or other securities and property of a
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corporation other than the successor or purchasing corporation, as the case may
be, in such consolidation, merger, combination, sale or conveyance, then such
supplemental indenture shall also be executed by such other corporation and
shall contain such additional provisions to protect the interests of the holders
of the Securities as the Board of Directors shall reasonably consider necessary
by reason of the foregoing. The provisions of this Section shall similarly apply
to successive consolidations, mergers, combinations, sales or conveyances.
Notice of the execution of each such supplemental indenture shall be mailed
to each holder of Securities at his address as the same appears on the registry
books of the Company.
Neither the Trustee nor any conversion agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or securities or property receivable by holders of Securities upon the
conversion of their Securities after any such reclassification, change,
consolidation, merger, sale or conveyance or to any adjustment to be made with
respect thereto, but, subject to the provisions of Sections 7.01 and 7.02, may
accept as conclusive evidence of the correctness of any such provisions, and
shall be protected in relying upon, the Officers' Certificate (which the Company
shall be obligated to file with the Trustee prior to the execution of such any
supplemental indenture) with respect thereto.
SECTION 15.08. Notice of Certain Events.
In case:
(a) the Company shall declare a dividend (or any other distribution)
payable to the holders of Capital Stock otherwise than in cash; or
(b) the Company shall authorize the granting to the holders of Capital
Stock of rights to subscribe for or purchase any shares of stock of any class or
of any other rights; or
(c) the Company shall authorize any reclassification or change of the
Capital Stock (other than a subdivision or combination of its outstanding shares
of Capital Stock), or any consolidation or merger to which the Company is a
party and for which approval of any stockholders of the Company is required, or
the sale or conveyance of all or substantially all the property or business of
the Company; then, the Company shall cause to be filed at the office or agency
maintained for the purpose of conversion of the Securities as provided in
Section 4.02, and shall cause to be mailed to each holder of Securities entitled
to the benefits of this Article, at his address as it shall appear on the
registry books of the Company, at least 20 days before the date hereinafter
specified (or the earlier of the dates hereinafter specified, in the event that
more than one date is specified), a notice stating the date on which (1) a
record is expected to be taken for the purpose of such dividend, distribution or
rights, or if a record is not to be taken, the date as of which the holders of
Capital Stock of record to be entitled to such dividend, distribution or rights
are to be determined, or (2) such reclassification, change, consolidation,
merger, sale, conveyance, dissolution, liquidation or winding-up is expected to
become effective and the date, if any is to be fixed, as of which it is
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expected that holders of Capital Stock of record shall be entitled to exchange
their shares of Capital Stock for securities or other property deliverable upon
such reclassification, change, consolidation, merger, sale, conveyance,
dissolution, liquidation or winding-up.
SECTION 15.09. Taxes on Conversion.
The Company will pay any and all documentary, stamp or similar taxes
payable to the United States of America or any political subdivision or taxing
authority thereof or therein in respect of the issue or delivery of shares of
Capital Stock on conversion of Securities pursuant thereto; provided, however,
that the Company shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issue or delivery of shares of Capital
Stock in a name other than that of the holder of the Securities to be converted
and no such issue or delivery shall be made unless and until the person
requesting such issue or delivery has paid to the Company the amount of any such
tax or has established, to the satisfaction of the Company, that such tax has
been paid. The Company shall pay no tax that may be payable with respect to any
other taxes imposed in connection with conversion of Securities.
SECTION 15.10. Company to Provide Stock.
The Company shall reserve, free from preemptive rights, out of its
authorized but unissued shares of Capital Stock, sufficient shares to provide
for the conversion of the Securities from time to time as such Securities are
presented for conversion, provided, that nothing contained herein shall be
construed to preclude the Company from satisfying its obligations in respect of
the conversion of Securities by delivery of repurchased shares of Capital Stock
which are held in the treasury of the Company.
If any shares of Capital Stock to be reserved for the purpose of conversion
of Securities hereunder require registration with or approval of any
governmental authority under any federal or state law before such shares may be
validly issued or delivered upon conversion, then the Company covenants that it
will in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be, provided, however, that nothing in
this Section shall be deemed to affect in any way the obligations of the Company
to convert Securities into Capital Stock as provided in this Article.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the Capital Stock, the
Company will take all corporate action which may, in the Opinion of Counsel, be
necessary in order that the Company may validly and legally issue fully paid and
nonassessable shares of Capital Stock at such adjusted Conversion Price.
The Company covenants that all shares of Capital Stock which may be issued
upon conversion of Securities will upon issue be fully paid and nonassessable by
the Company and free of preemptive rights.
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SECTION 15.11. Disclaimer of Responsibility for Certain Matters.
Neither the Trustee nor any agent of the Trustee shall at any time be under
any duty or responsibility to any holder of Securities to determine whether any
facts exist which may require an adjustment of the Conversion Price, or with
respect to the Officers' Certificate referred to in Section 15.06(g), or with
respect to the nature or extent of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. Neither the Trustee nor any agent
of the Trustee shall be accountable with respect to the validity or value (or
the kind or amount) of any shares of Capital Stock, or of any securities or
property, which may at any time be issued or delivered upon the conversion of
any Security; and neither the Trustee nor any conversion agent makes any
representation with respect thereto. Neither the Trustee nor any agent of the
Trustee shall be responsible for any failure of the Company to issue, register
the transfer of or deliver any shares of Capital Stock or stock certificates or
other securities or property upon the surrender of any Security for the purpose
of conversion or, subject to Sections 7.01 and 7.02, to comply with any of the
covenants of the Company contained in this Article.
SECTION 15.12. Return of Funds Deposited for Redemption of Converted
Securities.
Any funds which at any time shall have been deposited by the Company or on
its behalf with the Trustee or any other Paying Agent for the purpose of paying
the principal of and interest on any of the Securities and which shall not be
required for such purposes because of the conversion of such Securities, as
provided in this Article, shall after such conversion be repaid to the Company
by the Trustee or such other Paying Agent.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
SECTION 16.01. Successors and Assigns of Company Bound by Indenture.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 16.02. Acts of Board, Committee or Officer of Successor Corporation
Valid.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer or officers
of the Company shall and may be done and performed with like force and effect by
the like board, committee or officer or officers of any corporation that shall
at the time be the lawful sole successor of the Company.
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SECTION 16.03. Required Notices or Demands May Be Served by Mail.
Any notice or demand which by any provisions of this Indenture is required
or permitted to be given or served by the Trustee, by the holders of Securities
or by the holders of Preferred Securities to or on the Company may be given or
served by registered mail postage prepaid addressed (until another address is
filed by the Company with the Trustee for such purpose), as follows: The Bear
Stearns Companies Inc., 245 Park Avenue, New York, New York 10167, Attention:
Secretary. Any notice, direction, request, demand, consent or waiver by the
Company, by any Securityholder or by any holder of a Preferred Security to or
upon the Trustee shall be deemed to have been sufficiently given, made or filed,
for all purposes, if given, made or filed in writing at the principal office of
the Trustee, Attention: Corporate Trustee Administration Department.
SECTION 16.04. Officers' Certificate and Opinion of Counsel to Be Furnished
upon Applications or Demands by the Company.
Upon any request or application by the Company to the Trustee to take any
action under any of the provisions of this Indenture, the Company shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such
document is specifically required by any provision of this Indenture relating to
such particular application or demand, no additional certificate or opinion need
be furnished.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture, other than certificates provided pursuant to Section 4.06,
shall include (1) a statement that the person making such certificate or opinion
has read such covenant or condition; (2) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a statement that, in the
opinion of such person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (4) a statement as to whether
or not, in the opinion of such person, such condition or covenant has been
complied with.
Any certificate, statement or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or representations by counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, upon the certificate, statement or opinion of or
representations by an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows that the certificate, statement or
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opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or Opinion of an officer of the Company or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants, unless such officer or counsel, as the case may be, knows that the
certificate or opinion or representations with respect to the accounting matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 16.05. Payments Due on Saturdays, Sundays, and Holidays.
Except as otherwise specified as contemplated by Section 2.01, in any case
where the date of payment of interest on or principal of the Securities of any
series or the date fixed for any redemption of any Security of any series shall
not be a Business Day, then payment of interest or principal need not be made on
such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the date fixed for the payment of interest on or
principal of the Security or the date fixed for any redemption of any Security
of such series, and no additional interest shall accrue for the period alter
such date and before payment.
SECTION 16.06. Provisions Required by Trust Indenture Act of 1939 to
Control.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed under Sections 310 through 317 of the Trust Indenture Act of
1939, as amended, such duties shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act which may be so
modified or excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or excluded, as the case may be.
SECTION 16.07. Indenture and Securities to be Construed in Accordance with
the Laws of the State of New York.
This Indenture and each Security shall be deemed to be a contract made
under the laws of the State of New York, and for all purposes shall be construed
in accordance with the laws of said State, provided, however, that the rights
and duties of the Trustee hereunder shall be construed in accordance with the
laws of the State of the Trustee's principal place of business.
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SECTION 16.08. Provisions of the Indenture and Securities for the Sole
Benefit of the Parties and the Securityholders.
Nothing in this Indenture or in the Securities, expressed or implied, shall
give or be construed to give any person, firm or corporation, other than the
parties hereto and their successors and assigns and the holders of the
Securities, any legal or equitable right, remedy or claim under or in respect of
this Indenture, or under any covenant, condition and provision herein contained;
all its covenants, conditions and provisions being for the sole benefit of the
parties hereto and their successors and assigns and of the holders of the
Securities and, to the extent expressly provided in Sections 6.01, 6.05, 6.06,
9.07, 10.01 and 10.02, the holders of Preferred Securities.
SECTION 16.09. Indenture May be Executed in Counterparts.
This 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.
SECTION 16.10. Securities in Foreign Currencies.
Whenever this Indenture provides for any action by, or any distribution to,
holders of Securities denominated in United States dollars and in any other
currency, in the absence of any provision to the contrary in the form of
Security of any particular series, the relative amount in respect of any
Security denominated in a currency other than United States dollars shall be
treated for any such action or distribution as that amount of United States
dollars that could be obtained for such amount on such reasonable basis of
exchange and as of such date as the Company may specify in a written notice to
the Trustee.
The Chase Manhattan Bank, the party of the second part, hereby accepts the
trusts in this Indenture declared and provided, upon the terms and conditions
hereinabove set forth.
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IN WITNESS WHEREOF, The Bear Stearns Companies Inc., the party of the first
part, has caused this Indenture to be signed by its President and Chief
Executive Officer, and The Chase Manhattan Bank, the party of the second part,
has caused this Indenture to be signed by one of its Vice Presidents, all as of
the day and year first written above.
THE BEAR STEARNS COMPANIES INC.
By:
--------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trustee
By:
--------------------------------
Name:
Title: