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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
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CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
March [ ], 1998
J.P. MORGAN & CO. INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware
(State or other 1-5885 13-2625764
jurisdiction of (Commission File No.) (IRS Employer
incorporation) Identification No.)
60 Wall Street
New York, NY 10260-0060
(Address of principal executive offices)
(212) 483-2323
(Registrant's telephone number, including area code)
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<PAGE>
Item 5. Other Events.
On October 24, 1997, J.P. Morgan & Co. Incorporated, a Delaware
corporation (the "Registrant"), and J.P. Morgan Index Funding Company I, a
Delaware statutory business trust (the "Trust"), filed with the Securities
and Exchange Commission (the "SEC") a registration statement (Registration
Nos. 333-38633 and 333-38633-01) (the "Registration Statement") relating to
the issuance by the Trust of commodity-indexed preferred securities (the
"Preferred Securities") which are guaranteed to a certain extent by the
Registrant. The Registration Statement was declared effective by the SEC on
November 14, 1997. Each holder of the Preferred Securities shall have the
right to enforce the Guarantee Agreement and the Related Note Guarantee
Agreement against the Registrant without first seeking enforcement thereof
by the Property Trustee on such holder's behalf. Accordingly, the
Registrant hereby amends the following exhibits to the Registration
Statement: Exhibit 3(b)(2), the Amended and Restated Declaration of Trust
of the Trust; Exhibit 4(b)(1), the Form of Amended and Restated Guarantee
Agreement with respect to Preferred Securities issued by the predecessor of
the Trust; Exhibit 4(b)(2), the Form of Guarantee Agreement with respect to
Preferred Securities issued by the Trust; Exhibit 4(c), the Form of Related
Note Guarantee Agreement with respect to Related Notes issued in connection
with the issuance of Preferred Securities issued by the Trust, in each case
as attached hereto and incorporated herein by reference.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Financial statements of Businesses Acquired:
None.
(b) Pro Forma Financial Information:
<PAGE>
None.
(c) Exhibits:
Exhibit No. Description
Exhibit 3(b)(2) -- Amended and Restated Declaration of Trust of
J.P. Morgan Index Funding Company I.
Exhibit 4(b)(1) -- Form of Amended and Restated Guarantee
Agreement with respect to Preferred
Securities issued by the predecessor of
the Trust.
Exhibit 4(b)(2) -- Form of Guarantee Agreement with respect
to Preferred Securities issued by the
Trust.
Exhibit 4(c) -- Form of Related Note Guarantee Agreement.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
J.P. MORGAN & CO. INCORPORATED
Date: March 27, 1998
By:
/s/ Gene A. Capello
--------------------------
Name: Gene A. Capello
Title: Vice President and Assistant
General Counsel
<PAGE>
Exhibit Index
The following exhibits are filed herewith:
Exhibit No. Description
Exhibit 3(b)(2) -- Amended and Restated Declaration of Trust
of J.P. Morgan Index Funding
Company I.
Exhibit 4(b)(1) -- Form of Amended and Restated Guarantee
Agreement with respect to Preferred
Securities issued by the predecessor of
the Trust.
Exhibit 4(b)(2) -- Form of Guarantee Agreement with respect
to Preferred Securities issued by the
Trust.
Exhibit 4(c) -- Form of Related Note Guarantee Agreement.
<PAGE>
EXHIBIT 3(b)(2)
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AMENDED AND RESTATED DECLARATION OF TRUST
OF
J.P. MORGAN INDEX FUNDING COMPANY I
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DATED AS OF MARCH 26, 1998
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<PAGE>
TABLE OF CONTENTS*
Page
PARTIES...................................................... 1
RECITALS..................................................... 1
ARTICLE I
Definitions
SECTION 1.01 Certain terms defined; other terms
defined in the Trust Indenture Act
of 1939, as amended, or by reference
therein in the Securities Act of
1933, as amended, to have the
meanings assigned therein...................2
Affiliate..................................... 2
Book Entry Interest........................... 3
Business Day.................................. 3
Business Trust Act............................ 3
Certificate................................... 3
Certificate of Trust.......................... 3
Clearing Agency............................... 3
Clearing Agency Participant................... 3
Code.......................................... 3
Commission.................................... 3
Common Securities............................. 3
Common Security Certificate................... 4
Covered Person................................ 4
Declaration Supplement........................ 4
Definitive Preferred Security
Certificates............................... 4
Delaware Trustee.............................. 4
Depositary Agreement.......................... 4
Distribution.................................. 4
DTC........................................... 4
Early Redemption Value........................ 4
Event of Default.............................. 4
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* This Table of Contents does not constitute part of the
Amended and Restated Declaration of Trust and should not have any
bearing upon the interpretation of any of its terms or
provisions.
<PAGE>
Contents p. 2
Page
Exchange Act.................................. 4
Existing Declaration.......................... 4
Face Amount................................... 4
Fiscal Year................................... 5
Global Certificate............................ 5
Holder........................................ 5
Indemnified Person............................ 5
Indexed Security.............................. 5
Investment Company............................ 5
Investment Company Act........................ 5
Legal Action.................................. 5
Liquidation Distribution...................... 5
Majority in Principal Amount.................. 5
Ministerial Action............................ 6
Morgan Guaranty............................... 6
Note.......................................... 6
Note Event of Default......................... 6
Note Guarantee................................ 6
Option Closing Date........................... 6
Original Declaration.......................... 6
Paying Agent.................................. 6
Person........................................ 6
Preferred Guarantee........................... 6
Preferred Securities.......................... 6
Preferred Security Beneficial Owner........... 7
Preferred Security Certificate................ 7
Principal Amount.............................. 7
Property Account.............................. 7
Property Trustee.............................. 7
Quorum........................................ 7
Redemption Value.............................. 7
Regular Trustee............................... 7
Resignation Request........................... 7
Responsible Officer........................... 7
Securities.................................... 8
Securities Act................................ 8
Series of Securities.......................... 8
Special Event................................. 8
Sponsor or JPM................................ 8
Successor Delaware Trustee.................... 8
Successor Property Trustee.................... 8
10% in Principal Amount....................... 8
Treasury Regulations.......................... 8
Trust Indenture Act........................... 9
Trustee or Trustees........................... 9
Underwriting Agreement........................ 9
<PAGE>
Contents p. 3
Page
ARTICLE II
Trust Indenture Act
SECTION 2.01 Trust Indenture Act; Application.............. 9
SECTION 2.02 Lists of Holders of Preferred
Securities................................. 9
SECTION 2.03 Reports by the Property Trustee............... 10
SECTION 2.04 Periodic Reports to Property Trustee.......... 10
SECTION 2.05 Evidence of Compliance with Conditions
Precedent.................................. 10
SECTION 2.06 Voting Rights of Holders....................... 10
SECTION 2.07 Disclosure of Information..................... 15
ARTICLE III
Organization
SECTION 3.01 Name......................................... 15
SECTION 3.02 Office....................................... 15
SECTION 3.03 Issuance of the Trust Securities............. 16
SECTION 3.04 Purchase of Notes............................ 17
SECTION 3.05 Purpose...................................... 18
SECTION 3.06 Authority.................................... 18
SECTION 3.07 Title to Property of the Trust............... 19
SECTION 3.08 Powers and Duties of the Regular
Trustees.................................. 19
SECTION 3.09 Prohibition of Actions by Trust and
Trustees.................................. 22
SECTION 3.10 Powers and Duties of the Property
Trustee................................... 23
SECTION 3.11 Delaware Trustee............................. 26
SECTION 3.12 Certain Rights and Duties of the
Property Trustee.......................... 26
SECTION 3.13 Registration Statement and Related
Matters................................... 29
SECTION 3.14 Filing of Amendments to Certificate of
Trust..................................... 31
SECTION 3.15 Execution of Documents by Regular
Trustees.................................. 31
SECTION 3.16 Trustees Not Responsible for Recitals
or Issuance of Securities................ 31
SECTION 3.17 Duration of Trust............................ 31
SECTION 3.18 Assets and Liabilities Associated with
Series of Securities; Recordkeeping
of Series of Securities................... 32
<PAGE>
Contents p. 4
Page
ARTICLE IV
Sponsor
SECTION 4.01 Purchase of Common Securities by
Sponsor.................................... 33
SECTION 4.02 Expenses...................................... 33
ARTICLE V
Trustees
SECTION 5.01 Number of Trustees; Qualifications............ 34
SECTION 5.02 Appointment, Removal and Resignation
of Trustees................................ 36
SECTION 5.03 Vacancies Among Trustees...................... 38
SECTION 5.04 Effect of Vacancies........................... 38
SECTION 5.05 Meetings...................................... 39
SECTION 5.06 Delegation of Power........................... 39
ARTICLE VI
Distributions
SECTION 6.01 Distributions................................. 40
ARTICLE VII
Issuance of Securities
SECTION 7.01 General Provisions Regarding
Securities................................. 40
ARTICLE VIII
Dissolution and Termination of Trust
SECTION 8.01 Dissolution and Termination of Trust.......... 42
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Contents p. 5
Page
ARTICLE IX
Transfer of Interests
SECTION 9.01 Transfer of Securities........................ 43
SECTION 9.02 Transfer of Certificates...................... 43
SECTION 9.03 Deemed Security Holders....................... 44
SECTION 9.04 Book Entry Interests.......................... 44
SECTION 9.05 Notices to Holders of Certificates............ 45
SECTION 9.06 Appointment of Successor Clearing
Agency..................................... 45
SECTION 9.07 Definitive Preferred Securities
Certificates............................... 46
SECTION 9.08 Mutilated, Destroyed, Lost or Stolen
Certificates............................... 46
ARTICLE X
Limitation of Liability Indemnification
SECTION 10.01 Exculpation................................... 47
SECTION 10.02 Indemnification and Compensation.............. 47
SECTION 10.03 Outside Businesses............................ 48
ARTICLE XI
Accounting
SECTION 11.01 Fiscal Year.................................. 49
SECTION 11.02 Certain Accounting Matters................... 49
SECTION 11.03 Banking...................................... 50
SECTION 11.04 Withholding.................................. 50
ARTICLE XII
Amendments and Meetings
SECTION 12.01 Amendments.................................. 51
SECTION 12.02 Meetings of the Holders of Securities;
Action by Written Consent................ 52
<PAGE>
Contents p. 6
Page
ARTICLE XIII
Representations of Property Trustee
and Delaware Trustee
SECTION 13.01 Representations and Warranties of
Property Trustee........................... 54
ARTICLE XIV
Miscellaneous
SECTION 14.01 Notices....................................... 55
SECTION 14.02 Undertaking for Costs......................... 57
SECTION 14.03 Governing Law................................. 57
SECTION 14.04 Headings...................................... 58
SECTION 14.05 Partial Enforceability........................ 58
SECTION 14.06 Counterparts.................................. 58
SECTION 14.07 Intention of the Parties...................... 58
SECTION 14.08 Successors and Assigns........................ 58
SECTION 14.09 Effect of Declaration Supplements............. 59
SECTION 14.10 Merger........................................ 59
SIGNATURES AND SEALS......................................... 59
EXHIBIT A CERTIFICATE OF TRUST
EXHIBIT B FORM OF DECLARATION SUPPLEMENT -
TERMS OF SECURITIES
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
J.P. MORGAN INDEX FUNDING COMPANY I
MARCH 26, 1998
AMENDED AND RESTATED DECLARATION OF
TRUST ("Declaration"), dated and effective as
of March 26, 1998, by the undersigned
trustees (together with all other Persons
from time to time duly appointed and serving
as trustees in accordance with the provisions
of this Declaration, the "Trustees"), J.P.
Morgan & Co. Incorporated, a Delaware
corporation, as trust sponsor ("JPM" or the
"Sponsor"), and the holders, from time to
time, of undivided beneficial interests in
the assets of the J.P. Morgan Index Funding
Company I to be issued pursuant to this
Declaration.
WHEREAS the Sponsor and the Trustees entered into a
Declaration of Trust dated as of December 12, 1996 (the "Original
Declaration") in order to establish J.P. Morgan Index Funding
Company I, a statutory business trust (the "Trust") under the
Business Trust Act (as defined herein);
WHEREAS the Certificate of Trust (the "Certificate of
Trust") of the Trust was filed with the office of the Secretary
of State of the State of Delaware on December 12, 1996 and a
Restated Certificate of Trust was filed with the office of the
Secretary of State of the State of Delaware on September 30,
1997;
WHEREAS the Trustees and the Sponsor entered into an
Amended and Restated Declaration of Trust dated as of October 10,
1997 (the "Existing Declaration") in order to evidence their
desire to continue the Trust pursuant to the Business Trust Act
for the purpose of, as described more fully in Sections 3.03,
3.04 and 3.05 hereof, (i) issuing and selling for cash Securities
(as defined herein) of one or more Series of Securities (as
defined herein) representing preferred undivided beneficial
interests in the assets of the Trust associated with such Series
of Securities (and the proceeds thereof) and investing the
proceeds of the Securities of each Series of Securities in a Note
issued by Morgan Guaranty (as defined herein) that, together with
any proceeds thereof, will constitute the
<PAGE>
assets of the Trust associated with such series and will be held
as an asset of the Trust for the benefit of the holders of such
Securities and (ii) engaging in such other activities as are
necessary, convenient or incidental thereto; and
WHEREAS the Trustees and the Sponsor desire to enter
into an Amended and Restated Declaration of Trust dated as of the
date hereof in order to amend certain provisions of the Existing
Declaration;
NOW, THEREFORE, it being the intention of the parties
hereto that the Trust constitute a business trust under the
Business Trust Act, that the Existing Declaration be amended and
restated in its entirety as provided herein and that this
Declaration constitute the governing instrument of such business
trust, the Trustees declare that all assets referred to in
clause (i) of the previous Whereas clause purchased by the Trust
will be held in trust for the benefit of the Holders (as defined
herein) from time to time of the Certificates (as defined herein)
issued hereunder representing undivided beneficial interests in
the related assets of the Trust, subject to the provisions of
this Declaration.
ARTICLE I
Definitions
SECTION 1.01. Definitions. (a) Capitalized terms used
in this Declaration but not defined in the preamble above have
the respective meanings assigned to them in this Section 1.01;
(b) a term defined anywhere in this Declaration has the same
meaning throughout; (c) all references to "the Declaration" or
"this Declaration" are to this Amended and Restated Declaration
of Trust (including Exhibits A and B hereto (the "Exhibits")) as
modified, supplemented or amended from time to time including
pursuant to a Declaration Supplement (as defined herein); (d) all
references in this Declaration to Articles and Sections and
Exhibits are to Articles and Sections of and Exhibits to this
Declaration unless otherwise specified; (e) a term defined in the
Trust Indenture Act has the same meaning when used in this
Declaration unless otherwise defined in this Declaration or
unless the context otherwise requires; (f) a reference to the
singular includes the plural and vice versa; (g) the words
"include", "including" and similar terms shall be construed as if
followed by the phrase "without limitation"; and (h) the words
"herein", "hereof" and "hereunder" and other words of similar
import refer to
<PAGE>
this Declaration as a whole and not to any particular Article,
Section or other subdivision.
"Affiliate" has the same meaning as given to that term
in Rule 405 of the Securities Act or any successor rule
thereunder.
"Book Entry Interest" means a beneficial interest in a
Global Certificate registered in the name of a Clearing Agency or
a nominee thereof, ownership and transfers of which shall be
maintained and made through book entries by such Clearing Agency
as described in Section 9.04.
"Business Day" means any day other than a Saturday,
Sunday or any other day on which banking institutions in New
York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. Code ss. 3801 et seq., as it may be
amended from time to time.
"Certificate" means a Common Security Certificate or a
Preferred Security Certificate.
"Certificate of Trust" has the meaning set forth in the
second Whereas clause above.
"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act
that is acting as depository for the Preferred Securities and in
whose name, or in the name of a nominee of that organization,
shall be registered a Global Certificate and which shall
undertake to effect book entry transfers and pledges of the
Preferred Securities.
"Clearing Agency Participant" means a broker, dealer,
bank, other financial institution or other Person for whom from
time to time the Clearing Agency effects book entry transfers and
pledges of securities deposited with the Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time, or any successor legislation. A
reference to a specific section of the Code refers not only to
such specific section but also to any corresponding provision of
any Federal tax statute enacted after the date of this
Declaration, as such specific section or corresponding provision
is in effect on the date of application of the provisions of this
Declaration containing such reference.
<PAGE>
"Commission" means the Securities and Exchange
Commission.
"Common Securities" has the meaning specified in
Section 7.01(b).
"Common Security Certificate" means a definitive
certificate in fully registered form representing a Common
Security of any Series of Securities substantially in the form of
Annex II to Exhibit B.
"Covered Person" means (i) any officer, director,
shareholder, partner, member, representative, employee or agent
of the Trust or its Affiliates, (ii) any officer, director,
shareholder, employee, representative or agent of JPM or any of
its Affiliates and (iii) the Holders from time to time of the
Securities.
"Declaration Supplement" means a supplement to this
Declaration executed by the Sponsor and two Regular Trustees that
provides for the issuance of a particular Series of Securities
and Certificates.
"Definitive Preferred Security Certificates" has the
meaning set forth in Section 9.04.
"Delaware Trustee" has the meaning set forth in
Section 5.01(a)(3).
"Depositary Agreement" means an agreement among the
Trust, the Property Trustee and DTC, as the same may be amended
or supplemented from time to time.
"Distribution" means a distribution payable to Holders
of the Securities of the applicable Series of Securities in
accordance with Section 6.01.
"DTC" means The Depository Trust Company, the initial
Clearing Agency.
"Early Redemption Value", with respect to any Series of
Securities that are Indexed Securities, shall have the meaning,
if any, set forth in the Declaration Supplement establishing such
Series of Securities.
"Event of Default" means, with respect to any Series of
Securities, a Note Event of Default has occurred and is
continuing under the Note associated with such Series of
Securities.
<PAGE>
"Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, or any successor legislation.
"Existing Declaration" has the meaning set forth in the
third Whereas clause above.
"Face Amount" means, with respect to any Security, the
initial stated principal amount thereof.
"Fiscal Year" has the meaning specified in
Section 11.01.
"Global Certificate" has the meaning set forth in
Section 9.04.
"Holder" means a Person in whose name a Certificate
representing a Security is registered, such Person being a
beneficial owner within the meaning of the Business Trust Act.
"Indemnified Person" means any Trustee, any Affiliate
of any Trustee, any officer, director, shareholder, member,
partner, employee, representative or agent of any Trustee, or any
employee or agent of the Trust or any of its Affiliates.
"Indexed Security" means any Security the stated
liquidation preference or redemption value, as applicable, which
varies or may vary from the Face Amount thereof.
"Investment Company" means an investment company as
defined in the Investment Company Act.
"Investment Company Act" means the Investment Company
Act of 1940, as amended from time to time, or any successor
legislation.
"Legal Action" has the meaning specified in
Section 3.08(g).
"Liquidation Distribution" has the meaning set forth in
the terms of the Securities as set forth in Exhibit B hereto.
"Majority in Principal Amount" means, except as
otherwise required by the Trust Indenture Act and except as
provided in paragraph (d) of paragraph 6 of Exhibit B hereto,
with respect to any Series of Securities, Holder(s) of
outstanding Securities of such series voting together as a single
class or, as the context may require, Holder(s) of
<PAGE>
outstanding Preferred Securities of such series or Common
Securities of such series voting as separate classes, who are the
record owners of the relevant series or class of Securities whose
Principal Amount (including the stated amount that would be paid
on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are
determined) represents more than 50% of the Principal Amount of
all outstanding Securities of such series or class.
"Ministerial Action" means filing a form or making an
election, or pursuing some other similar reasonable measure that
has no adverse effect on the Trust, JPM or any Holder of any
Security.
"Morgan Guaranty" means Morgan Guaranty Trust Company
of New York, a trust company with full banking powers organized
under the laws of the State of New York and a wholly owned
subsidiary of JPM.
"Note" means a Note associated with a particular Series
of Securities evidencing a loan from the Trust to Morgan Guaranty
of the proceeds of the issuances of the Securities of such
series.
"Note Event of Default" means an event or condition
defined as an "Event of Default" with respect to a Note
associated with a particular Series of Securities has occurred
and is continuing.
"Note Guarantee" means a Note Guarantee Agreement of
JPM for the benefit of the Property Trustee, for the benefit of
the Holders of Securities of a particular Series of Securities,
with respect to a Note associated with such Series of Securities.
"Option Closing Date" means the Option Closing Date as
specified in any Underwriting Agreement.
"Original Declaration" has the meaning set forth in the
first Whereas clause above.
"Paying Agent" has the meaning specified in
Section 3.10(i).
"Person" means a legal person, including any
individual, corporation, estate, partnership, joint venture,
association, joint stock company, limited liability company,
trust, unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
<PAGE>
"Preferred Guarantee" means a Guarantee Agreement of
JPM for the benefit of the Holders of Preferred Securities of a
Series of Securities with respect to such Preferred Securities.
"Preferred Securities" has the meaning specified in
Section 7.01(b).
"Preferred Security Beneficial Owner" means, with
respect to a Book Entry Interest, a Person who is the beneficial
owner of such Book Entry Interest, as reflected on the books of
the Clearing Agency, or on the books of a Person maintaining an
account with such Clearing Agency (directly as a Clearing Agency
Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Preferred Security Certificate" means a definitive
certificate in fully registered form representing a Preferred
Security of any Series of Securities substantially in the form of
Annex I to Exhibit B.
"Principal Amount" means, at any time with respect to
any Indexed Security, the Redemption Value, the applicable Early
Redemption Value or the stated liquidation preference, as
applicable, of such Indexed Security, as if determined as of such
time pursuant to the terms of such Indexed Security.
"Property Account" has the meaning specified in
Section 3.10(c)(i).
"Property Trustee" means the Trustee meeting the
eligibility requirements set forth in Section 5.01(c) and having
the duties set forth for the Property Trustee herein.
"Quorum" means a majority of the Regular Trustees or,
if there are only two Regular Trustees, both such Regular
Trustees.
"Redemption Value", with respect to any Series of
Securities that are Indexed Securities, has the meaning, if any,
set forth in the Declaration Supplement establishing such Series
of Securities.
"Regular Trustee" means any Trustee other than the
Property Trustee or the Delaware Trustee.
"Resignation Request" has the meaning specified in
Section 5.02(d).
<PAGE>
"Responsible Officer" means, with respect to the
Property Trustee, any officer of the Property Trustee with
responsibility for the administration of this Declaration and
also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that
officer's knowledge of, and familiarity with, the particular
subject.
"Securities" means the Common Securities and the
Preferred Securities.
"Securities Act" means the Securities Act of 1933, as
amended from time to time, or any successor legislation.
"Series of Securities" mean any series of Preferred
Securities and related Common Securities issued hereunder or
pursuant to a Declaration Supplement.
"Special Event" has the meaning set forth in
Section 5(b) of the terms of the Securities as set forth in
Exhibit B hereto.
"Sponsor" or "JPM" means J.P. Morgan & Co.
Incorporated, a Delaware corporation, or any successor entity in
a merger, consolidation or other business combination transaction
in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning specified
in Section 5.02(b)(ii).
"Successor Property Trustee" means a successor Trustee
possessing the qualifications to act as Property Trustee under
Section 5.02(b)(i).
"10% in Principal Amount" means, except as otherwise
required by the Trust Indenture Act and except as provided in
paragraph (d) of paragraph 6 of Exhibit B hereto, with respect to
any Series of Securities, Holder(s) of outstanding Securities of
such series voting together as a single class or, as the context
may require, Holder(s) of outstanding Preferred Securities of
such series or Common Securities of such series, voting as
separate classes, who are the record owners of the relevant
series or class of Securities whose Principal Amount (including
the stated amount that would be paid on redemption, liquidation
or otherwise, plus accrued and unpaid Distributions to the date
upon which the voting percentages are determined) represents 10%
or more of the Principal Amount of all outstanding Securities of
such series or class.
<PAGE>
"Treasury Regulations" means the income tax
regulations, including temporary and proposed regulations,
promulgated under the Code by the United States Treasury, as such
regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended from time to time, or any successor legislation.
"Trustee" or "Trustees" means each Person who has
signed this Declaration as a trustee, so long as such Person
shall continue in office in accordance with the terms hereof, and
all other Persons who may from time to time be duly appointed,
qualified and serving as a Trustee in accordance with the
provisions hereof, and references herein to a Trustee or the
Trustees shall refer to such Person or Persons solely in their
capacity as trustees hereunder.
"Underwriting Agreement" means any Underwriting
Agreement among the Trust, the Sponsor and J.P. Morgan
Securities, Inc. or J.P. Morgan Securities, Ltd., as
representative of the several underwriters or managers, as
applicable, named therein, relating to the issuance of the
Preferred Securities of any Series of Securities.
ARTICLE II
Trust Indenture Act
SECTION 2.01. Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration
and shall, to the extent applicable, be governed by such
provisions; (b) if and to the extent that any provision of this
Declaration limits, qualifies or conflicts with the duties
imposed by ss.ss. 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control; (c) for purposes of this
Declaration, the Property Trustee, to the extent permitted by
applicable law and/or the rules and regulations of the
Commission, shall be the only Trustee which is a trustee for the
purposes of the Trust Indenture Act; and (d) the application of
the Trust Indenture Act to this Declaration shall not affect the
nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
SECTION 2.02. Lists of Holders of Preferred Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of
the Trust shall provide the Property
<PAGE>
Trustee with such information as is required under ss. 312(a) of
the Trust Indenture Act at the times and in the manner provided
in ss. 312(a); and (b) the Property Trustee shall comply with its
obligations under ss.ss. 310(b), 311 and 312(b) of the Trust
Indenture Act.
SECTION 2.03. Reports by the Property Trustee. Within
60 days after May 15 of each year, the Property Trustee shall
provide to the Holders of the Securities such reports as are
required by ss. 313 of the Trust Indenture Act, if any, in the
form, in the manner and at the times provided by ss. 313 of the
Trust Indenture Act. The Property Trustee shall also comply with
the requirements of ss. 313(d) of the Trust Indenture Act.
SECTION 2.04. Periodic Reports to Property Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Property Trustee, the Commission and
the Holders of the Securities, as applicable, such documents,
reports and information as required by ss. 314(a)(1)-(3) (if any)
of the Trust Indenture Act and the compliance certificates
required by ss. 314(a)(4) and (c) of the Trust Indenture Act, any
such certificates to be provided in the form, in the manner and
at the times required by ss. 314(a)(4) and (c) of the Trust
Indenture Act (provided that any certificate to be provided
pursuant to ss. 314(a)(4) of the Trust Indenture Act shall be
provided within 120 days of the end of each Fiscal Year).
SECTION 2.05. Evidence of Compliance with Conditions
Precedent. Each of the Sponsor and the Regular Trustees on behalf
of the Trust shall provide to the Property Trustee such evidence
of compliance with any conditions precedent, if any, provided for
in this Declaration which relate to any of the matters set forth
in ss. 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given pursuant to ss. 314(c) shall comply
with ss. 314(e) of the Trust Indenture Act.
SECTION 2.06. Voting Rights of Holders. (a) Except as
shall be otherwise established herein or in the Declaration
Supplement(s) providing for the issue of any Series of Securities
and except as otherwise required by the Business Trust Act,
(i) Holders of Preferred Securities of any series shall have,
with respect to such Preferred Securities, no right or power to
vote on any question or matter or in any proceeding or to be
represented at, or to receive notice of, any meeting of Holders
and (ii) all voting rights of the Trust shall be vested
exclusively in the Holder of Common Securities. The Holder of the
Common Securities shall determine the manner in which the Common
<PAGE>
Securities are voted in all matters upon which the Holder of
Common Securities has the right to vote. The Holder of Common
Securities shall have the right to vote separately as a class on
any matter on which the Holder of Common Securities has the right
to vote regardless of the voting rights of any other Holder.
(b) Subject to Section 2.06(f), if (i) the Trust fails
to pay dividends or other distributions in full on the Preferred
Securities of any Series of Securities for 30 days following the
date on which such payment was due in accordance with the terms
of such Preferred Securities; or (ii) an Event of Default (as
defined in any Note associated with any Series of Securities)
occurs and is continuing with respect to such Note, then (x) the
Holders holding a Majority in Principal Amount of the outstanding
Preferred Securities of such series, acting as a single class,
will be entitled to cause the Trust, by written direction to the
Property Trustee, (A) to waive any such Event of Default and its
consequences or to enforce the Trust's rights under the
applicable Note or Notes against Morgan Guaranty, (B) in the case
of clause (i) above, to declare and pay dividends or other
distributions on the Preferred Securities of such series;
provided that any such payments or other distributions shall be
paid solely from the proceeds of interest or other payments made
on the applicable Note and received by the Trust on behalf of the
Holders of the Securities of such series and (C) in the case of
clause (ii) above, to waive any such Event of Default and its
consequences or to enforce the Trust's rights under the Note
Guarantee with respect to the Preferred Securities of such series
and (y) in the case of clause (ii) above if such Event of Default
is attributable to the failure of Morgan Guaranty to pay
principal or interest on the Note on the date such principal or
interest is otherwise payable (or in the case of a redemption, on
the redemption date) any Holder of the outstanding Preferred
Securities of such series may directly institute a proceeding
under the Note Guarantee with respect to the Preferred Securities
of such series against JPM for enforcement of payment to such
Holder of the related Principal Amount of or dividends or other
distributions on, as applicable, the Preferred Securities of such
Holder (a "Direct Action") on or after the date of the occurrence
of such Event of Default. In connection with such Direct Action,
the rights of the Holder of the Common Securities of such series
shall be subrogated to the rights of such Holder of Preferred
Securities to the extent of any payment made by JPM to such
Holder of Preferred Securities in such Direct Action. For
purposes of determining whether the Trust has failed to pay
dividends in full within 30 days of the applicable payment date,
dividends or other distributions
<PAGE>
shall be deemed to remain in arrears, notwithstanding any
payments in respect thereof, until full cumulative dividends or
other distributions have been or contemporaneously are declared
and paid with respect to all dividend or other distribution
periods terminating on or prior to the date of payment of such
full cumulative dividends or other distributions. Not later than
30 days after the right to vote arises, the Property Trustee will
solicit such vote. If the Property Trustee fails to solicit such
vote within such 30-day period, the Holders holding 10% in
Principal Amount of the outstanding Preferred Securities of the
series with respect to which dividends or other distributions
have not been paid, acting as a single class, will be entitled to
convene such meeting. Any such voting rights shall cease
immediately if, in the case of clause (i) above, the Trust shall
have paid in full all accumulated and unpaid dividends or other
distributions on the Securities of such Series of Securities with
respect to which dividends or other distributions have not been
paid or if, in the case of clause (ii) above, such default of
Morgan Guaranty shall have been cured or waived. Subject to
Section 2.06(f), Holders of Preferred Securities of a Series of
Securities may, by vote of at least a Majority in Principal
Amount of Preferred Securities of such series, in accordance with
the terms of such Preferred Securities, direct the time, method
and place of conducting any proceeding for any remedy available
to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee.
(c) If any resolution is proposed to be adopted by the
Holders providing for, or the Regular Trustees propose to take,
any action to effect:
(i) any variation or abrogation of the powers,
preferences and special rights of any Series of Securities
by way of amendment of this Declaration or otherwise, which
variation or abrogation adversely affects the Holders of the
Securities of such series,
(ii) the dissolution of the Trust, or
(iii) the commencement of any bankruptcy, insolvency,
reorganization or other similar proceeding involving the
Trust,
then, in the case of any resolution or action described in
clause (i) above, the Holders holding the outstanding Securities
of such series the powers, preferences or special rights of which
are proposed to be amended and, in the case of any resolution or
action described in clause (ii) or (iii) above, the Holders
holding any outstanding Securities
<PAGE>
will be entitled to vote together as a class on such resolution
or action of the Sponsor (but not any other resolution or action)
and such resolution or action shall not be effective except with
the approval of the Holders holding a Majority in Principal
Amount of such outstanding Securities or all Series of
Securities, as applicable; provided that no such resolution or
action shall, without the consent of each Holder of Securities of
any Series of Securities affected thereby, (1) change the terms
of such Holder's Securities established pursuant to Section
3.03(iii), (iv), (v), (vi), (vii), (viii) or (xi) in a manner
adverse to such Holder, (2) reduce the above-stated percentage of
Principal Amount necessary to approve such resolution or action,
(3) amend the provisions of this Section 2.06(c) or (4) cause the
Trust to be treated as anything other than a grantor trust for
United States federal income tax purposes; provided further,
however, that no such approval shall be required under
clauses (i) and (ii) if the dissolution of the Trust is proposed
or initiated upon the occurrence of any of the events specified
in Section 8.01. The powers, preferences or special rights of any
Series of Securities will be deemed not to be varied by the
creation or issuance of, and no vote will be required for the
creation or issuance of, any other Series of Securities.
(d) Notwithstanding any provision to the contrary
herein, the first sentence of Section 9.01(c) of this Declaration
may only be amended with the consent of each Holder of
Securities.
(e) Notwithstanding that Holders of Preferred
Securities of any series are entitled to vote or consent under
any circumstances described in this Declaration, any Preferred
Securities of any series that are owned by JPM or by any entity
directly or indirectly controlling or controlled by or under
direct or indirect common control with JPM shall not be entitled
to vote or consent and shall, for the purposes of such vote or
consent, be treated as if they were not outstanding.
(f) The right of any Holder of Securities of any Series
of Securities to receive payment of Distributions on such
Securities in accordance with this Declaration and the terms of
such Securities set forth in the applicable Declaration
Supplement on or after the respective payment dates therefor, or
to institute suit for the enforcement of any such payment on or
after such payment dates, shall not be impaired without the
consent of such Holder.
<PAGE>
(g) As provided in the terms of any Series of
Securities set forth in the applicable Declaration Supplement, a
waiver of a Note Event of Default relating to a Note associated
with any Series of Securities by the Property Trustee at the
written direction of the Holders of the Preferred Securities of
such series constitutes a waiver of the corresponding Event of
Default under this Declaration in respect of such Series of
Securities; provided that if the Note Event of Default is not
waivable under the applicable Note, the Event of Default under
this Declaration shall also be not waivable.
(h)(i) Morgan Guaranty and the Property Trustee may,
without the consent of the Holders of any Preferred
Securities, enter into senior notes supplemental to any Note
relating to any Series of Securities for, among others, one
or more of the following purposes: (x) to evidence the
succession of another person to, and the assumption by such
successor of, Morgan Guaranty's obligations under such Note;
(y) to add covenants of Morgan Guaranty, or surrender any
rights of Morgan Guaranty, for the benefit of the Property
Trustee; and (z) to cure any ambiguity, or correct any
inconsistency in, such Note. Morgan Guaranty and the
Property Trustee, with the consent of the Holders of not
less than a Majority in Principal Amount of the outstanding
Preferred Securities of any series may modify the Note
relating to such Series of Securities, provided that no such
modification may, without the consent of the Holders of all
outstanding Preferred Securities affected thereby,
(w) reduce the amount of Preferred Securities of such series
the Holders of which must consent to any amendment,
supplement or waiver of such Note; (x) reduce the rate of or
extend the time for the payment of interest on the Note;
(y) alter the method of calculation of, or reduce, the
amount paid at stated maturity or extend the stated maturity
of such Note (other than pursuant to the terms of such Note)
or (z) make such Note payable in money or property other
than that stated in such Note.
(ii) The Note Guarantee with respect to a Series of
Securities may be amended only with the prior approval of
the Property Trustee acting on behalf of the Holders of the
Securities of such Series of Securities; provided that no
such amendment shall adversely affect the Holders of the
Preferred Securities of any Series of Securities without the
consent of a Majority in Principal Amount of the Preferred
Securities of such affected Series of Securities, with
Holders of
<PAGE>
Preferred Securities of each such affected series voting as
a single and separate class. All guarantees and agreements
contained in the Note Guarantee shall bind the successors,
assignees, receivers, trustees and representatives of JPM
and shall inure to the benefit of the Property Trustee, for
the benefit of the Holders of the Securities of each Series
of Securities, as the holder of each Note then outstanding.
(iii) Except with respect of any changes that do not
adversely affect the rights of Holders of the Preferred
Securities of any Series of Securities (in which case no
vote will be required), the Preferred Guarantee may be
amended only with the prior approval of the Holders of not
less than a Majority in Principal Amount of the outstanding
Preferred Securities of each affected series, with Holders
of Preferred Securities of each such affected series voting
as a single and separate class. All guarantees and
agreements contained in any Preferred Guarantee shall bind
the successors, assignees, receivers, trustees and
representatives of JPM and shall inure to the benefit of the
Holders of the Preferred Securities of the applicable series
then outstanding.
(iv) The procedures and mechanisms for implementing any
such modification to any Note, Note Guarantee or Preferred
Guarantee shall be identical to the procedures and
mechanisms set forth in paragraph (b) above or in
Section 12.02.
(i) A Note Event of Default under a Note associated
with any particular Series of Securities or an Event of Default
under this Declaration in respect of such Series of Securities
shall not constitute a Note Event of Default under a Note
associated with any other Series of Securities or an Event of
Default under this Declaration in respect of any other Series of
Securities and shall not prohibit payments in respect of such
other Series of Securities. Payments in respect of principal of
or interest on a Note, the Note Guarantee or the Preferred
Guarantee, in each case associated with a particular Series of
Securities shall be for the sole benefit of the Holders of
Securities of such Series of Securities.
SECTION 2.07. Disclosure of Information. The disclosure
of information as to the names and addresses of the Holders of
the Securities in accordance with ss. 312 of the Trust Indenture
Act, regardless of the source from which such information was
derived, shall not be deemed to be a violation of any existing
law or any law hereafter enacted
<PAGE>
which does not specifically refer to ss. 312 of the Trust Indenture
Act, nor shall the Property Trustee be held accountable by reason
of mailing any material pursuant to a request made under ss. 312(b)
of the Trust Indenture Act.
ARTICLE III
Organization
SECTION 3.01. Name. The Trust continued by this
Declaration is named "J.P. Morgan Index Funding Company I" as
such name may be modified from time to time by the Regular
Trustees following written notice to the Holders of Securities.
The Trust's activities may be conducted under the name of the
Trust or any other name deemed advisable by the Regular Trustees.
SECTION 3.02. Office. The address of the principal
office of the Trust is c/o J.P. Morgan & Co. Incorporated, 60
Wall Street, New York, New York 10260-0060. Upon ten days'
written notice to the Holders (a copy of such notice to be sent
to the Property Trustee and the Delaware Trustee), the Regular
Trustees may change the location of the Trust's principal office.
The name of the registered agent and office of the Trust in the
State of Delaware is Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890. At
any time, the Regular Trustees may designate another registered
agent and/or registered office.
SECTION 3.03. Issuance of the Trust Securities. The
Sponsor and the Regular Trustees are hereby authorized, on behalf
of the Trust from time to time to authorize the issuance of
Securities of one or more Series of Securities, and with respect
to the Securities of each such series to establish by a
Declaration Supplement or Declaration Supplements providing for
the issuance of such Securities:
(i) the maximum number of Preferred Securities and
Common Securities to constitute such series, the aggregate
initial principal amount, the Face Amount (if any) and the
distinctive designation thereof;
(ii) whether the Preferred Securities of such series
shall have voting rights in addition to those set forth in
this Declaration and, if so, the terms of such voting
rights;
(iii) the periodic dividend or other distribution rate
(or method of calculation thereof), if any, on the
<PAGE>
Securities of such series, the conditions and dates upon
which such dividends or other distributions shall be payable
and the ability of the Trust, if any, to extend the dividend
or other distribution payment period for the Securities of
such series, the dates from which such dividends or other
distributions shall accrue, and whether such dividends or
other distributions shall be cumulative or noncumulative;
(iv) whether the Securities of such series shall be
subject to redemption by the Holders thereof or the Trust,
and, if made subject to redemption, the times and other
terms and conditions of such redemption (including the
amount and kind of consideration to be received upon such
redemption, or the method of calculation thereof);
(v) any rights in addition to those set forth in this
Declaration of the Holders of the Securities of such series
upon the dissolution of the Trust;
(vi) whether or not the Securities of such series shall
be subject to the operation of a retirement or sinking fund
and, if so, the extent to and manner in which any such
retirement or sinking fund shall be applied to the purchase
or redemption of the Securities of such series for
retirement and the terms and provisions relative to the
operation thereof;
(vii) whether or not the Securities of such series
shall be convertible into, or exchangeable for, interests of
any other class or classes, or of any Securities of any
other series, or securities of any other kind, including
those issued by the Sponsor or any of its Affiliates, and if
so convertible or exchangeable, the price or prices or the
rate or rates of conversion or exchange and the method, if
any, of adjusting the same;
(viii) any limitations and restrictions in addition to
those set forth in this Declaration to be effective while
the Securities of such series are outstanding upon the
payment of periodic dividends or other distributions on, and
upon the purchase, redemption or other acquisition by the
Trust of, Securities of any other series;
(ix) any conditions or restrictions in addition to
those set forth in this Declaration upon the issue of any
additional Securities of such series or any other series
ranking on a parity with or prior to such
<PAGE>
Securities as to periodic dividends or distribution of
assets on dissolution;
(x) the times, prices and other terms and conditions
for the offering of the Securities of such series;
(xi) the Principal Amount (or the method of calculation
thereof) of the Securities of such series to be paid upon
Stated Maturity (if any) thereof; and
(xii) any other relative rights, powers and duties as
shall not be inconsistent with this Section 3.03.
The Sponsor and the Regular Trustees are hereby authorized, on
behalf of the Trust, to execute and deliver any Declaration
Supplement, any Underwriting Agreement and any other agreement,
document, instrument or certificate in connection with any
issuances of Securities of a Series of Securities.
SECTION 3.04. Purchase of Notes. On any date, in
connection with the issuance of Securities of a Series of
Securities, the Regular Trustees, on behalf of the Trust, shall
purchase from Morgan Guaranty with the proceeds received by the
Trust from the sale of such Securities on such date pursuant to
Section 3.03, at a purchase price of 100% of the principal amount
thereof, a Note relating to and associated with such series,
registered in the name of the Property Trustee and having an
aggregate principal amount equal to the sum of the aggregate
initial Principal Amount of the Preferred Securities and Common
Securities of such Series of Securities, and, in satisfaction of
the purchase price for such Note, the Regular Trustee, on behalf
of the Trust, shall deliver or cause to be delivered to Morgan
Guaranty such sum.
SECTION 3.05. Purpose. The exclusive purposes and
functions of the Trust are: (a)(i) to issue and sell Preferred
Securities of one or more Series of Securities for cash and to
issue and sell related Common Securities of such series to JPM
for cash and use the proceeds of such sales to acquire a Note of
a corresponding series of Morgan Guaranty having an aggregate
principal amount equal to the sum of the aggregate Principal
Amount of the Preferred Securities and Common Securities of such
corresponding series so issued and sold; and (ii) to enter into
such agreements and arrangements as may be necessary in
connection with the sale of Securities of any Series of
Securities to the initial purchasers thereof and to take all
actions and exercise such discretion as may be necessary or
desirable in connection
<PAGE>
therewith and to file such registration statements or make such
other filings under the Securities Act, the Exchange Act or state
securities or "Blue Sky" laws as may be necessary or desirable in
connection therewith and the issuance of Securities of such
Series of Securities; and (b) except as otherwise limited herein,
to engage in such other activities as are necessary, convenient
or incidental thereto. The Trust, either on its own behalf or on
behalf of the Holders of any Series of Securities, shall not
borrow money, issue debt or reinvest proceeds derived from
investments, pledge any of its assets or, at any time while any
Securities are outstanding, otherwise undertake (or permit to be
undertaken) an activity that would result in or cause the Trust
to be treated as anything other than a grantor trust for United
States federal income tax purposes.
SECTION 3.06. Authority. Subject to the limitations
provided in this Declaration and to the specific duties of the
Property Trustee, the Regular Trustees shall have exclusive and
complete authority to carry out the purposes of the Trust. An
action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust
and the Holders of Securities of any applicable Series of
Securities and an action taken by the Property Trustee in
accordance with its powers shall constitute the act of and serve
to bind the Trust and the Holders of Securities of any applicable
Series of Securities. In dealing with the Trustees acting on
behalf of the Trust, no Person shall be required to inquire into
the authority of the Trustees to bind the Trust or the Holders of
any Securities. Persons dealing with the Trust are entitled to
rely conclusively on the power and authority of the Trustees as
set forth in this Declaration.
SECTION 3.07. Title to Property of the Trust. Except as
provided in Section 3.10 with respect to the Notes and the
Property Accounts or unless otherwise provided in this
Declaration, legal title to all assets of the Trust shall be
vested in the Trust. The Holders shall not have legal title to
any part of the assets of the Trust, but shall have an individual
undivided beneficial interest in the assets of the Trust
consisting of the Note associated with the Series of Securities
corresponding to the Securities held by such Holder and the
proceeds thereof.
SECTION 3.08. Powers and Duties of the Regular
Trustees. The Regular Trustees shall have the exclusive
<PAGE>
power, authority and duty to cause the Trust, and shall cause the
Trust, to engage in the following activities:
(a) to issue Securities of one or more Series of
Securities, in accordance with this Declaration; provided,
however, that there shall be no interests in the Trust other
than the interests in one or more separate Series of
Securities;
(b) in connection with the issuance of Securities of
any Series of Securities, at the direction of the Sponsor,
to effect or cause to be effected the filings, and to
execute or cause to be executed the documents, set forth in
Section 3.13 and to execute, deliver and perform on behalf
of the Trust the Depositary Agreement;
(c) to acquire as trust assets series of Notes with the
proceeds of the sale of the Securities of the associated
Series of Securities; provided, however, that the Regular
Trustees shall cause each Note to be held of record in the
name of the Property Trustee for the benefit of the Holders
of the Securities of the associated Series of Securities;
(d) to cause the Trust to enter into such agreements
and arrangements as may be necessary or desirable in
connection with the sale of Securities of any Series of
Securities to the initial purchasers thereof and the
consummation thereof, and to take all action, and exercise
all discretion, as may be necessary or desirable in
connection with the consummation thereof;
(e) to give the Sponsor and the Property Trustee prompt
written notice of the occurrence of a Special Event;
provided that the Regular Trustees shall notify the Sponsor
and the Property Trustee before taking or refraining to take
any Ministerial Action in relation to a Special Event;
(f) to establish a record date with respect to all
actions to be taken hereunder that require a record date be
established, including for the purposes of Section 316(c) of
the Trust Indenture Act and with respect to Distributions,
voting rights, redemptions and exchanges, and to issue
relevant notices to Holders of the applicable Securities as
to such actions and applicable record dates;
<PAGE>
(g) to bring or defend, pay, collect, compromise,
arbitrate, resort to legal action or otherwise adjust claims
or demands of or against the Trust ("Legal Action"), unless,
pursuant to Section 3.10(e), the Property Trustee has the
exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents
(who may be designated as officers with titles) and
managers, contractors, advisors and consultants and pay
reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's
obligations under the Trust Indenture Act;
(j) to give the certificate to the Property Trustee
required by ss. 314(a)(4) of the Trust Indenture Act, which
certificate may be executed by any Regular Trustee;
(k) to incur expenses which are necessary or incidental
to carrying out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as,
registrar and transfer agent for Securities of any Series of
Securities, the Regular Trustees hereby initially appointing
the Property Trustee for such purposes;
(m) to take all actions and perform such duties as may
be required of the Regular Trustees pursuant to the terms of
the Securities of the applicable Series of Securities set
forth in the Declaration Supplement relating to such Series
of Securities;
(n) to execute all documents or instruments, perform
all duties and powers and do all things for and on behalf of
the Trust in all matters necessary, convenient or incidental
to the foregoing;
(o) to take all action which may be necessary or
appropriate for the preservation and the continuation of the
Trust's valid existence, rights, franchises and privileges
as a statutory business trust under the laws of the State of
Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of
the Holders of Securities of any Series of Securities or to
enable the Trust to effect the purposes for which the Trust
has been created;
<PAGE>
(p) to take all action, not inconsistent with this
Declaration or with applicable law, which the Regular
Trustees determine in their discretion to be reasonable and
necessary or desirable in carrying out the activities of the
Trust as set out in this Section 3.08, in order that:
(i) the Trust will not be deemed to be an
Investment Company required to be registered under the
Investment Company Act;
(ii) the Trust will not be classified for United
States Federal income tax purposes as an association
taxable as a corporation or a partnership and will be
treated as a grantor trust for United States Federal
income tax purposes; and
(iii) the Trust will comply with any requirements
imposed by any taxing authority on Holders of
instruments treated as indebtedness for United States
Federal income tax purposes;
provided that such action does not adversely affect the
interests of Holders of Securities of any series;
(q) to take all action necessary to cause all
applicable tax returns and tax information reports that are
required to be filed with respect to the Trust to be duly
prepared and filed by the Regular Trustees, on behalf of the
Trust; and
(r) subject to the requirements of ss. 317(b) of the
Trust Indenture Act, to appoint one or more Paying Agents in
addition to the Property Trustee.
The Regular Trustees must exercise the powers set forth
in this Section 3.08 in a manner which is consistent with the
purposes and functions of the Trust set out in Section 3.05 and
the Regular Trustees shall not take any action which is
inconsistent with the purposes and functions of the Trust set
forth in Section 3.05.
Subject to this Section 3.08, the Regular Trustees
shall have none of the powers nor any of the authority of the
Property Trustee set forth in Section 3.10.
SECTION 3.09. Prohibition of Actions by Trust and
Trustees. The Trust shall not, and the Trustees (including the
Property Trustee) shall not cause the Trust to, engage in any
activity other than as required or authorized by this
<PAGE>
Declaration. In particular, the Trust shall not, and the Trustees
(including the Property Trustee) shall not cause the Trust to:
(a) invest any proceeds received by the Trust from
holding any Note associated with any Series of Securities,
but shall promptly distribute all such proceeds to Holders
of the Securities of the associated series pursuant to the
terms of this Declaration and of such Series of Securities;
(b) acquire any assets other than as expressly provided
herein;
(c) possess Trust property for other than a Trust
purpose;
(d) make any loans, other than loans represented by the
Notes;
(e) possess any power or otherwise act in such a way as
to vary the Trust assets or the terms of any Series of
Securities in any way whatsoever;
(f) issue any securities or other evidences of
beneficial ownership of, or beneficial interests in, the
Trust other than the Securities of the Series of Securities;
(g) incur any indebtedness for borrowed money; or
(h) (i) direct the time, method and place of exercising
any trust or power conferred upon the Holders with respect
to any Note associated with any Series of Securities or the
Note Guarantee or the Preferred Guarantee, (ii) waive any
past default that is waivable under any Note associated with
any Series of Securities, (iii) exercise any right to
rescind or annul any declaration that the principal of the
Note associated with any Series of Securities shall be due
and payable or (iv) consent to any amendment, modification
or termination of the Note associated with any Series of
Securities or the Note Guarantee or the Preferred Guarantee,
where such consent shall be required, unless in the case of
this clause (h) the Property Trustee shall have received an
unqualified opinion of nationally recognized independent tax
counsel recognized as expert in such matters to the effect
that such action will not cause the Trust to be classified
for United States Federal income tax purposes as an
association taxable as a corporation or
<PAGE>
partnership and that the Trust will continue to be
classified as a grantor trust for United States federal
income tax purposes.
SECTION 3.10. Powers and Duties of the Property
Trustee. (a) The Note associated with any Series of Securities
shall be held of record in the name of the Property Trustee in
trust for the benefit of the Holders of the Securities of such
series. The right, title and interest of the Property Trustee to
the Note associated with each Series of Securities shall vest
automatically in each Person who may hereafter be appointed as
Property Trustee in accordance with Article V. Such vesting and
cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered.
(b) The Property Trustee shall not transfer its right,
title and interest in the Note associated with of any Series of
Securities to the Regular Trustees or, if the Property Trustee
does not also act as the Delaware Trustee, the Delaware Trustee.
(c) The Property Trustee shall:
(i) establish and maintain separate segregated
non-interest bearing bank accounts (each a "Property
Account") in the name of and under the exclusive control of
the Property Trustee on behalf of the Holders of Securities
of each Series of Securities and on the receipt of payments
of funds made in respect of a Note associated with any
series held by the Property Trustee or the Note Guarantee in
respect of such Note, deposit such funds into the Property
Account maintained for such Series of Securities and Note
associated therewith and, without any further acts of the
Property Trustee or the Regular Trustees, promptly make
payments to the Holders of Securities of the corresponding
Series of Securities from the Property Account in accordance
with Section 6.01. Funds in each Property Account shall be
held uninvested, and without liability for interest thereon,
until disbursed in accordance with this Declaration. Each
Property Account shall be an account which is maintained
with a banking institution whose long term unsecured
indebtedness is rated by a "nationally recognized
statistical rating organization", as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act, at
least equal to (but in no event less than "A" or the
equivalent) the rating assigned to the Preferred Securities
of the corresponding series by a nationally recognized
statistical rating organization;
<PAGE>
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect promptly the redemption
of Securities of any series to the extent the Note
associated with such series is redeemed or matures; and
(iii) have the legal power, in accordance with the
instructions of Holders of a Majority in Principal Amount of
the outstanding Preferred Securities of any series if
applicable, to exercise all of the rights, powers and
privileges of a Holder of the corresponding series of Notes
and the Note Guarantee and, if an Event of Default occurs
and is continuing, the Property Trustee, subject to
Section 2.06(b), shall, for the benefit of the Holders of
Securities of the applicable series, enforce its rights as
Holder of the Note relating to such series or the Note
Guarantee, subject to the rights of the Holders of such
Securities pursuant to the terms of this Declaration, the
Business Trust Act and the Trust Indenture Act.
(d) The Property Trustee shall take all actions and
perform such duties as may be specifically required of the
Property Trustee pursuant to the terms of any Series of
Securities set forth in the Declaration Supplement establishing
such Series of Securities.
(e) The Property Trustee shall take any Legal Action
which arises out of or in connection with an Event of Default or
the Property Trustee's duties and obligations under this
Declaration, the Business Trust Act or the Trust Indenture Act.
(f) All moneys deposited in any Property Account, and
all Notes held by the Property Trustee for the benefit of the
Holders of the Securities, will not be subject to any right,
charge, security interest, lien or claim of any kind in favor of,
or for the benefit of, the Property Trustee or its agents or
their creditors.
(g) The Property Trustee shall, within 30 days after
the occurrence of a default with respect to any Series of
Securities, transmit by mail, first class postage prepaid, to the
Holders of Securities of such series, as their names and
addresses appear upon the register, notice of all defaults with
respect to such Series of Securities known to the Property
Trustee, unless such defaults shall have been cured before the
giving of such notice (the term "defaults" for the purposes of
this Section 3.10(g) being hereby defined to be a Note Event of
Default under the Note associated with such Series of Securities,
not including any
<PAGE>
periods of grace provided for in such Note and irrespective of
the giving of any notice provided therein); provided that, except
in the case of default in the payment of the principal of (or
premium, if any) or interest on any Note associated with any
Series of Securities, the Property 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 Property Trustee in good faith
determines that the withholding of such notice is in the
interests of the Holders of the corresponding Securities. The
Property Trustee shall not be deemed to have knowledge of any
default, except (i) a default in the payment of principal of (or
premium, if any) or interest on any Note associated with any
Series of Securities, or (ii) any default as to which the
Property Trustee shall have received written notice or a
Responsible Officer charged with the administration of this
Declaration shall have obtained written notice.
(h) The Property Trustee shall not resign as a Trustee
unless either:
(i) the Trust has been completely liquidated and the
proceeds thereof distributed to the Holders of each Series
of Securities pursuant to the terms of each such Series of
Securities; or
(ii) a Successor Property Trustee has been appointed
and accepted that appointment in accordance with Article V.
(i) The Property Trustee shall act as paying agent in
respect of each Series of Securities and, subject to
Section 3.08(r), may authorize one or more Persons (each, a
"Paying Agent") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to
Securities of such series. Any such Paying Agent shall comply
with ss. 317(b) of the Trust Indenture Act. Any Paying Agent may be
removed by the Property Trustee, after consultation with the
Regular Trustees, at any time and a successor Paying Agent or
additional Paying Agents may be appointed at any time by the
Property Trustee, subject to Section 3.08(r).
(j) Subject to this Section 3.10, the Property Trustee
shall have none of the powers or the authority of the Regular
Trustees set forth in Section 3.08.
(k) The Property Trustee shall exercise the powers,
duties and rights set forth in this Section 3.10 and Section 3.12
in a manner which is consistent with the
<PAGE>
purposes and functions of the Trust set out in Section 3.05, and
the Property Trustee shall not take any action which is
inconsistent with the purposes and functions of the Trust set
forth in Section 3.05.
SECTION 3.11. Delaware Trustee. Notwithstanding any
other provision of this Declaration other than Section
5.01(a)(3), the Delaware Trustee shall not be entitled to
exercise any powers, nor shall the Delaware Trustee have any of
the duties and responsibilities of the Regular Trustees or the
Property Trustee described in this Declaration. Except as set
forth in Section 5.01(a)(3), the Delaware Trustee shall be a
Trustee for the sole and limited purpose of fulfilling the
requirements of ss. 3807 of the Business Trust Act. No implied
covenants or obligations shall be read into this Declaration
against the Delaware Trustee.
SECTION 3.12. Certain Rights and Duties of the Property
Trustee. (a) The Property Trustee, before the occurrence of an
Event of Default and after the curing of all Events of Default
that may have occurred, shall undertake to perform only such
duties as are specifically set forth in this Declaration, and no
implied covenants shall be read into this Declaration against the
Property Trustee. In case an Event of Default has occurred (that
has not been cured or waived pursuant to Section 2.06), the
Property Trustee shall exercise such of the rights and powers
vested in it by this Declaration, and use the same degree of care
and skill in their exercise, as a prudent person would exercise
or use under the circumstances in the conduct of his or her own
affairs.
(b) No provision of this Declaration shall be construed
to relieve the Property Trustee from liability for its own
negligent action, its own negligent failure to act or its own
willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and
after the curing or waiving of all such Events of Default
that may have occurred:
(A) the duties and obligations of the Property
Trustee shall be determined solely by the express
provisions of this Declaration, and the Property
Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set
forth in this Declaration, and no implied covenants or
obligations shall be read into this Declaration against
the Property Trustee; and
<PAGE>
(B) in the absence of bad faith on the part of the
Property Trustee, the Property 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 Property
Trustee and conforming to the requirements of this
Declaration; but in the case of any such certificates
or opinions that by any provision hereof are
specifically required to be furnished to the Property
Trustee, the Property Trustee shall be under a duty to
examine the same to determine whether or not they
conform to the requirements of this Declaration;
(ii) the Property Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer of the Property Trustee, unless it shall be proved
that the Property Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Property 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
as provided herein relating to the time, method and place of
conducting any proceeding for any remedy available to the
Property Trustee hereunder or under any Note associated with
any Series of Securities, or exercising any trust or power
conferred upon the Property Trustee under this Declaration;
and
(iv) no provision of this Declaration shall require the
Property Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any
of its rights or powers, if it shall have reasonable ground
for believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this
Declaration or adequate indemnity against such risk or
liability is not reasonably assured to it.
(c) Subject to the provisions of Section 3.12(a) and
(b):
(i) whenever in the administration of this Declaration,
the Property Trustee shall deem it desirable that a matter
be proved or established prior to taking, suffering or
omitting any action hereunder, the Property Trustee (unless
other evidence is herein specifically prescribed) may, in
the absence of bad
<PAGE>
faith on its part request and rely upon a certificate, which
shall comply with the provisions of ss. 314(e) of the Trust
Indenture Act, signed by any two of the Regular Trustees or
by an authorized officer of the Sponsor, as the case may be;
(ii) the Property Trustee (A) may consult with counsel
(which may be counsel to the Sponsor or any of its
Affiliates and may include any of its employees) selected by
it in good faith and with due care and the written advice or
opinion of such counsel with respect to legal matters 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 reliance thereon and in accordance with
such advice and opinion and (B) shall have the right at any
time to seek instructions concerning the administration of
this Declaration from any court of competent jurisdiction;
(iii) the Property 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
Property Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed
by it in good faith and with due care;
(iv) the Property Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this
Declaration at the request or direction of any Holders,
unless such Holders shall have offered to the Property
Trustee reasonable security and indemnity against the costs,
expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with
such request or direction; provided that nothing contained
in this clause (iv) shall relieve the Property Trustee of
the obligation, upon the occurrence of an Event of Default
(which has not been cured or waived) to exercise such of the
rights and powers vested in it by this Declaration, and to
use the same degree of care and skill in this exercise, as a
prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs;
(v) any action taken by the Property Trustee or its
agents hereunder shall bind the Trust and the Holders of
Securities of the applicable Series of Securities and the
signature of the Property Trustee or its agents alone shall
be sufficient and effective to
<PAGE>
perform any such action; and no third party shall be
required to inquire as to the authority of the Property
Trustee to so act, or as to its compliance with any of the
terms and provisions of this Declaration, both of which
shall be conclusively evidenced by the Property Trustee's or
its agent's taking such action;
(vi) the Property Trustee may rely and shall be fully
protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond,
security or other paper or document believed by it to be
genuine and to have been signed, sent or presented by the
proper party or parties; and
(vii) the Property 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, bond, security or
other paper or document, but the Property Trustee, in its
discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit.
SECTION 3.13. Registration Statement and Related
Matters. In accordance with the Original Declaration, JPM, the
Regular Trustees and the Delaware Trustee have authorized and
directed, and hereby confirm the authorization of, JPM, as the
sponsor of the Trust (with appropriate changes relating to the
listing of the Preferred Securities on the American Stock
Exchange instead of the New York Stock Exchange), (i) to file
with the Commission and execute, in each case on behalf of the
Trust, (a) a Registration Statement on Form S-3 (File
Nos. 333-01121 and 333-01121-01) (the "1933 Act Registration
Statement") including any amendments thereto and any further pre-
effective or post-effective amendments to such Registration
Statement, relating to the registration under the Securities Act
of, among other things, the Preferred Securities and the related
guarantees of such Preferred Securities by the Sponsor and (b) a
Registration Statement on Form 8-A or other appropriate form (the
"1934 Act Registration Statement") (including all pre-effective
and post-effective amendments thereto) relating to the
registration of the Preferred Securities of any series and the
related guarantees of such Preferred Securities by the Sponsor
under Section 12(b) of the Exchange Act; (ii) to file with the
American Stock Exchange and execute on behalf of the Trust a
listing application and all other applications, statements,
certificates, agreements and other instruments as shall be
<PAGE>
necessary or desirable to cause the Preferred Securities of any
series to be listed on the American Stock Exchange; (iii) to file
and execute on behalf of the Trust such applications, reports,
surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be
necessary or desirable to register the Preferred Securities under
the securities or "Blue Sky" laws of such jurisdictions as JPM,
on behalf of the Trust, may deem necessary or desirable and
(iv) to negotiate and execute on behalf of the Trust any
Underwriting Agreement. In the event that any filing referred to
in clauses (i)-(iii) above is required by the rules and
regulations of the Commission, the American Stock Exchange or
state securities or blue sky laws, to be executed on behalf of
the Trust by the Trustees, the Regular Trustees, in their
capacities as Trustees of the Trust, are hereby authorized and
directed to join in any such filing and to execute on behalf of
the Trust any and all of the foregoing, it being understood that
the Property Trustee and the Delaware Trustee, in their
capacities as Trustees of the Trust, shall not be required to
join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the
Commission, the American Stock Exchange or state securities or
blue sky laws. In connection with all of the foregoing, JPM and
each Trustee, solely in its capacity as a Trustee of the Trust,
have constituted and appointed, and hereby confirm the
appointment of Gene A. Capello and James C.P. Berry, and each of
them, as his, her or its, as the case may be, true and lawful
attorneys-in-fact, and agents, with full power of substitution
and resubstitution, for JPM or such Trustee or in JPM's or such
Trustee's name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective amendments)
to the 1933 Act Registration Statement and the 1934 Act
Registration Statement and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the
Commission, granting unto said attorneys-in-fact and agents full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as JPM or such Trustee might
or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their or his
or her substitute or substitutes, shall do or cause to be done by
virtue hereof.
SECTION 3.14. Filing of Amendments to Certificate of
Trust. The Certificate of Trust as filed with the Secretary of
State of the State of Delaware on December 12, 1996 is attached
hereto as Exhibit A. On or after the date of execution of this
Declaration, the Trustees shall cause
<PAGE>
the filing with the Secretary of State of the State of Delaware
of such amendments to the Certificate of Trust as the Trustees
shall deem necessary or desirable.
SECTION 3.15. Execution of Documents by Regular
Trustees. Unless otherwise determined by the Regular Trustees and
except as otherwise required by the Business Trust Act with
respect to the Certificate of Trust or otherwise, a majority of,
or if there are only two, both of, the Regular Trustees are
authorized to execute and deliver on behalf of the Trust
(including on behalf of the Holders of any Securities) any
documents which the Regular Trustees have the power and authority
to execute or deliver pursuant to this Declaration.
SECTION 3.16. Trustees Not Responsible for Recitals or
Issuance of Securities. The recitals contained in this
Declaration and any of the Securities shall be taken as the
statements of the Sponsor and the Trustees do not assume any
responsibility for their correctness. The Trustees make no
representations as to the value or condition of the property of
the Trust or any part thereof. The Trustees make no
representations as to the validity or sufficiency of this
Declaration or any of the Securities.
SECTION 3.17. Duration of Trust. The Trust, absent
termination pursuant to the provisions of Article VIII hereof,
shall have existence until November 21, 2105.
SECTION 3.18. Assets and Liabilities Associated with
Series of Securities; Recordkeeping of Series of Securities.
(a) All proceeds received by the Trust with respect to a Note
associated with a particular Series of Securities, together with
such Note, shall be deemed to be "assets associated with" the
Series of Securities relating to or associated with such Note for
all purposes and shall not be deemed to be "assets associated
with" any other Series of Securities and such assets shall be
subject only to the rights of the creditors with respect to such
series. In addition, any assets, income, fees, earnings, profits
or funds, or payments and proceeds with respect thereto, that are
not readily identifiable as being associated with any Series of
Securities relating to a particular Note shall be allocated by
the Property Trustee between and among one or more Series of
Securities in such manner as the Property Trustee, in its
reasonable discretion, deems fair and equitable, and such assets,
income, fees, earnings, profits or funds, or payments and
proceeds with respect thereto shall be assets associated with
such series. The assets associated with a particular Series of
Securities shall be
<PAGE>
so recorded upon the books of the Trust, and shall be held in
trust for the benefit of the Holders of Securities of such
series. The assets associated with each particular Series of
Securities shall be charged with the liabilities associated with
that series and with all other expenses, costs, charges and
reserves attributable to that series. Any general liabilities,
expenses, costs, charges or reserves of the Trust that are not
readily identifiable as being associated with any Series of
Securities relating to a particular Note shall be allocated and
charged by the Property Trustee between or among any one or more
of the Series of Securities in such manner as the Property
Trustee, in its reasonable discretion, deems fair and equitable.
Without limitation of the foregoing provisions of this
Section 3.18, but subject to the right of the Property Trustee in
its reasonable discretion to allocate general liabilities,
expenses, costs, charges or reserves as herein provided, the
debts, liabilities, obligations and expenses incurred, contracted
for or otherwise existing with respect to a particular Series of
Securities shall be enforceable against the assets associated
with such series only, and not against the assets of the Trust
generally or the assets associated with any other Series of
Securities. Notice of this contractual limitation on inter-series
liabilities shall be set forth in the Certificate (whether
originally or by amendment), and upon the giving of such notice
in the Certificate the statutory provisions of Section 3804 of
the Business Trust Act relating to the limitations on inter-
series liabilities (and the statutory effect under such section
of the setting forth of such notice in the Certificate) shall
become applicable to the Trust and each Series of Securities. Any
Person extending credit to, contracting with, or having any claim
against any Series of Securities may look only to the assets
associated with that series to satisfy or enforce any debt,
liability, obligation or expense incurred, contracted for or
otherwise existing with respect to that series. No Holder or
former Holder of Securities of any Series of Securities shall
have any claim on or right to any assets allocated or associated
with any other Series of Securities (except if, and to the extent
that, such Holder is also a Holder of Securities of such other
series).
(b) Separate and distinct books and records shall be
maintained by the Trust for each Series of Securities and the
assets associated with any such series shall be held and
accounted for separately from the assets of the Trust or the
assets associated with any other series.
<PAGE>
ARTICLE IV
Sponsor
SECTION 4.01. Purchase of Common Securities by Sponsor.
On any date, including on any Option Closing Date, the Sponsor
shall purchase all of the Common Securities of any series issued
by the Trust at the same time as the Preferred Securities of the
corresponding series to be issued on such date are issued, such
purchase to be in such amount so that the Common Securities at
all times represent 0.001% of the total capital of the Trust and
of each Series of Securities.
SECTION 4.02. Expenses. (a) In connection with the
purchase of the Note associated with any Series of Securities by
the Trust on behalf of the Holders of Securities of such series,
the Sponsor, in its capacity as Sponsor and not as a Holder,
shall be responsible for and shall pay for all debts and
obligations (other than with respect to such Series of
Securities) and all costs and expenses of the Trust (including,
but not limited to, costs and expenses relating to the
organization of the Trust, the issuance of the Preferred
Securities of such series to initial purchasers thereof, the fees
and expenses (including reasonable counsel fees and expenses) of
the Trustees (including any amounts payable under Article X), the
costs and expenses relating to the operation of the Trust,
including without limitation, costs and expenses of accountants,
attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment,
Paying Agent(s), registrars, transfer agent(s), duplicating,
travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the disposition of
Trust assets).
(b) In connection with the purchase by the Trust of the
Note associated with any Series of Securities, the Sponsor, in
its capacity as Sponsor and not as a Holder, will pay any and all
taxes (other than United States withholding taxes attributable to
the Trust or its assets) and all liabilities, costs and expenses
with respect to such taxes of the Trust.
(c) The Sponsor's obligations under this Section 4.02
shall be 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 hereof. Any such Creditor may enforce the
Sponsor's obligations under this Section 4.02 directly against
the
<PAGE>
Sponsor and the Sponsor irrevocably waives any right or remedy to
require that any such Creditor take any action against the Trust
or any other Person before proceeding against the Sponsor. The
Sponsor agrees to execute such additional agreements as may be
necessary or desirable in order to give full effect to the
provisions of this Section 4.02.
ARTICLE V
Trustees
SECTION 5.01. Number of Trustees; Qualifications.
(a) Except as provided in (1) below, the number of Trustees
initially shall be five (5). At any time (i) before the issuance
of Securities of any Series of Securities, the Sponsor may, by
written instrument, increase or decrease the number of, and
appoint, remove and replace the, Trustees, and (ii) after the
issuance of Securities of any Series of Securities the number of
Trustees may be increased or decreased solely by, and Trustees
may be appointed, removed or replaced solely by, vote of Holders
of Common Securities of all series representing a Majority in
Principal Amount of the Common Securities of all series voting as
a class; provided that in any case:
(1) the number of Trustees shall be at least five (5)
unless the Trustee that acts as the Property Trustee also
acts as the Delaware Trustee, in which case the number of
Trustees shall be at least three (3);
(2) at least a majority of the Trustees shall at all
times be officers or employees of JPM;
(3) if required by the Business Trust Act, one Trustee
(the "Delaware Trustee") shall be either a natural person
who is a resident of the State of Delaware or, if not a
natural person, an entity which has its principal place of
business in the State of Delaware and otherwise is permitted
to act as a Trustee hereunder under the laws of the State of
Delaware, except that if the Property Trustee has its
principal place of business in the State of Delaware and
otherwise is permitted to act as a Trustee hereunder under
the laws of the State of Delaware, then the Property Trustee
shall also be the Delaware Trustee and Section 3.09 shall
have no application; and
<PAGE>
(4) there shall at all times be a Property Trustee
hereunder which shall satisfy the requirements of
Section 5.01(c).
Each Trustee shall be either a natural person at least 21 years
of age or a legal entity which shall act through one or more duly
appointed representatives.
(b) The initial Regular Trustees shall be:
David A. Diamond
Andrew G. Kerber
Susan L. McCullin
In care of J.P. Morgan & Co. Incorporated
60 Wall Street
New York, New York 10260-0060
(c) There shall at all times be one Trustee which shall
act as Property Trustee. In order to act as Property Trustee
hereunder, such Trustee shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business
under the laws of the United States of America or any State
or Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Commission to act as
an institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least
$50,000,000, and 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 supervising or examining authority
referred to above, then for the purposes of this
Section 5.01(c)(ii), 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 the Property Trustee shall cease to
satisfy the requirements of clauses (i)-(iii) above, the Property
Trustee shall immediately resign in the manner and with the
effect set out in Section 5.02(d). If the Property Trustee has or
shall acquire any "conflicting interest" within the meaning of
ss. 310(b) of the Trust Indenture Act, the Property Trustee and the
Holders of the Common Securities of each series (as if such
Holders were the
<PAGE>
obligor referred to in ss. 310(b) of the Trust Indenture Act) shall
in all respects comply with the provisions of ss. 310(b) of the
Trust Indenture Act. The Preferred Guarantee shall be deemed to
be specifically described in this Declaration for the purposes of
clause (i) of the first proviso contained in ss. 310(b) of the
Trust Indenture Act.
The initial Trustee which shall serve as the Property
Trustee is First Trust of New York, National Association, whose
address is as set forth in Section 14.01(b).
(d) The initial Trustee which shall serve as the
Delaware Trustee is Wilmington Trust Company, a Delaware banking
corporation, whose address is as set forth in Section 14.01(c).
(e) Any action taken by Holders of Common Securities
pursuant to this Article V shall be taken at a meeting of Holders
of Common Securities convened for such purpose or by written
consent as provided in Section 12.02.
(f) No amendment may be made to this Section 5.01 which
would change any rights with respect to the number, existence or
appointment and removal of Trustees, except with the consent of
each Holder of the Common Securities of each series.
SECTION 5.02. Appointment, Removal and Resignation of
Trustees. (a) Subject to Section 5.02(b), Trustees may be
appointed or removed without cause at any time:
(i) until the issuance of Securities of any Series of
Securities, by written instrument executed by the Sponsor;
and
(ii) after the issuance of Securities of any Series of
Securities by vote of the Holders of a Majority in Principal
Amount of Common Securities of each series voting as a
class.
(b)(i) The Trustee that acts as Property Trustee shall
not be removed in accordance with Section 5.02(a) until a
Successor Property Trustee possessing the qualifications to
act as Property Trustee under Section 5.01(c) (a "Successor
Property Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor
Property Trustee and delivered to the Regular Trustees, the
Sponsor and the Property Trustee being removed; and
<PAGE>
(ii) the Trustee that acts as Delaware Trustee shall
not be removed in accordance with Section 5.02(a) until a
successor Trustee possessing the qualifications to act as
Delaware Trustee under Section 5.01(a)(3) (a "Successor
Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor
Delaware Trustee and delivered to the Regular Trustees, the
Sponsor and the Delaware Trustee being removed.
(c) A Trustee appointed to office shall hold office
until his successor shall have been appointed or until his
death, removal or resignation.
(d) Any Trustee may resign from office (without need
for prior or subsequent accounting) by an instrument (a
"Resignation Request") in writing signed by the Trustee and
delivered to the Sponsor and the Trust, which resignation
shall take effect upon such delivery or upon such later date
as is specified therein; provided, however, that:
(i) no such resignation of the Trustee that acts as
the Property Trustee shall be effective until a Successor
Property Trustee possessing the qualifications to act as
Property Trustee under Section 5.01(c) has been appointed
and has accepted such appointment by instrument executed by
such Successor Property Trustee and delivered to the Trust,
the Sponsor and the resigning Property Trustee; or
(ii) no such resignation of the Trustee that acts as
the Delaware Trustee shall be effective until a Successor
Delaware Trustee has been appointed and has accepted such
appointment by instrument executed by such Successor
Delaware Trustee and delivered to the Trust, the Sponsor and
the resigning Delaware Trustee.
(e) If no Successor Property Trustee or Successor
Delaware Trustee shall have been appointed and accepted
appointment as provided in this Section 5.02 within 60 days
after delivery to the Sponsor and the Trust of a Resignation
Request, the resigning Property Trustee or Delaware Trustee
may petition any court of competent jurisdiction for
appointment of a Successor Property Trustee or Successor
Delaware Trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, appoint
a Successor Property Trustee or Successor Delaware Trustee,
as the case may be.
<PAGE>
(f) The Sponsor shall provide notice to the Property
Trustee of any resignation or removal of a Regular Trustee.
SECTION 5.03. Vacancies Among Trustees. If a Trustee
ceases to hold office for any reason and the number of Trustees
is not reduced pursuant to Section 5.01 or if the number of
Trustees is increased pursuant to Section 5.01, a vacancy shall
occur. A resolution certifying the existence of such vacancy by a
majority of the Regular Trustees shall be conclusive evidence of
the existence of such vacancy. The vacancy shall be filled with a
Trustee appointed in accordance with the requirements of this
Article V.
SECTION 5.04. Effect of Vacancies. The death,
resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of
a Trustee, or any one of them, shall not operate to annul the
Trust. Whenever a vacancy in the number of Regular Trustees shall
occur until such vacancy is filled as provided in this Article V,
the Regular Trustees in office, regardless of their number, shall
have all the powers granted to the Regular Trustees and shall
discharge all the duties imposed upon the Regular Trustees by
this Declaration.
SECTION 5.05. Meetings. Meetings of the Regular
Trustees shall be held from time to time upon the call of any
Trustee. Regular meetings of the Regular Trustees may be held at
a time and place fixed by resolution of the Regular Trustees.
Notice of any in-person meeting of the Regular Trustees shall be
hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than
48 hours before such meeting. Notice of any telephonic meeting of
the Regular Trustees or any committee thereof shall be hand
delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than
24 hours before such meeting. Notices shall contain a brief
statement of the time, place and anticipated purposes of the
meeting. The presence (whether in person or by telephone) of a
Regular Trustee at a meeting shall constitute a waiver of notice
of such meeting except where a Regular Trustee attends a meeting
for the express purpose of objecting to the transaction of any
activity on the ground that the meeting has not been lawfully
called or convened. Unless provided otherwise in this
Declaration, any action of the Regular Trustees may be taken at a
meeting by vote of a majority of the Regular Trustees present
(whether in person or by telephone) and eligible to vote with
respect to such
<PAGE>
matter; provided that a Quorum is present, or without a meeting
by the unanimous written consent of the Regular Trustees.
SECTION 5.06. Delegation of Power. (a) Any Regular
Trustee may, by power of attorney consistent with applicable law,
delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any registration statement
or amendment thereto or other document or schedule filed with the
Commission or making any other governmental filing (including,
without limitation the filings referred to in Section 3.13).
(b) The Regular Trustees shall have the power to
delegate from time to time to such of their number or to officers
of the Trust or to officers of JPM the doing of such things and
the execution of such instruments either in the name of the Trust
or the names of the Regular Trustees or otherwise as the Regular
Trustees may deem expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the provisions of the
Trust, as set forth herein.
ARTICLE VI
Distributions
SECTION 6.01. Distributions. Holders of Securities
shall receive periodic distributions, redemption payments and
liquidation distributions in accordance with the applicable terms
of the relevant Series of Securities ("Distributions").
Distributions shall be made to the Holders of Securities in
accordance with the terms of the applicable Securities as set
forth in the Declaration Supplement(s) relating to the applicable
Series of Securities. If and to the extent that Morgan Guaranty
makes a payment of interest, premium or principal on the Note
relating to any Series of Securities held by the Property Trustee
(the amount of any such payment being a "Payment Amount"), the
Property Trustee shall and is directed to promptly make a
Distribution of the Payment Amount to Holders of Securities of
the corresponding series in accordance with the terms of such
Securities as set forth in the Declaration Supplement(s) relating
to such Series of Securities.
<PAGE>
ARTICLE VII
Issuance of Securities
SECTION 7.01. General Provisions Regarding Securities.
(a) The Regular Trustees shall issue on behalf of the Trust
Securities of one or more separate Series of Securities in fully
registered form representing undivided beneficial interests in
the Note associated with such Series of Securities held by the
Property Trustee for the benefit of Holders of Securities of such
Series of Securities in accordance with Section 7.01(b) and for
the consideration specified in Section 3.03.
(b) The Regular Trustees shall (i) issue on behalf of
the Trust Preferred Securities of a Series of Securities
representing undivided beneficial interests in the Note
associated with such Series of Securities held by the Property
Trustee for the benefit of Holders of Securities of such Series
of Securities having such terms as are set forth in the
Declaration Supplement relating to such Series of Securities (the
"Preferred Securities") which terms shall be deemed incorporated
by reference in, and made a part of, this Declaration as if
specifically set forth herein, and Common Securities of a Series
of Securities representing undivided beneficial interests in the
Note associated with such Series of Securities held by the
Property Trustee for the benefit of Holders of Securities of such
Series of Securities having such terms as are set forth in the
Declaration Supplement relating to such Series of Securities (the
"Common Securities") which terms shall be deemed incorporated by
reference in, and made a part of, this Declaration as if
specifically set forth herein and (ii) notify the Property
Trustee of the terms of any Declaration Supplement and the
planned issuance of the Securities created thereunder at least
three Business Days prior to such issuance. The Trust shall have
no securities or other interests in the assets of the Trust other
than the Securities of each Series of Securities.
(c) The Certificates shall be signed on behalf of the
Trust by the Regular Trustees (or if there are more than two
Regular Trustees by any two of the Regular Trustees). Such
signatures may be the manual or facsimile signatures of the
present or any future Regular Trustee. Typographical and other
minor errors or defects in any such reproduction of any such
signature shall not affect the validity of any Certificate. In
case any Regular Trustee of the Trust who shall have signed any
of the Certificates shall cease to be such Regular Trustee before
the Certificate so signed shall be delivered by the Trust, such
Certificate nevertheless may
<PAGE>
be delivered as though the person who signed such Certificate had
not ceased to be such Regular Trustee; and any Certificate may be
signed on behalf of the Trust by such persons as, at the actual
date of the execution of such Certificate, shall be the Regular
Trustees of the Trust, although at the date of the execution and
delivery of the Declaration any such person was not such a
Regular Trustee. Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably
acceptable to the Regular Trustees, as evidenced by their
execution thereof, and may have such letters, numbers or other
marks of identification or designation and such legends or
endorsements as the Regular Trustees may deem appropriate, 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. Pending the preparation of definitive
Certificates, the Regular Trustees on behalf of the Trust may
execute temporary Certificates (printed, lithographed or
typewritten), in substantially the form of the definitive
Certificates in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for
temporary Certificates, all as may be determined by the Regular
Trustees. Each temporary Certificate shall be executed by the
Regular Trustees on behalf of the Trust upon the same conditions
and in substantially the same manner, and with like effect, as
definitive Certificates. Without unnecessary delay, the Regular
Trustees on behalf of the Trust will execute and furnish
definitive Certificates and thereupon any or all temporary
Certificates may be surrendered to the transfer agent and
registrar in exchange therefor (without charge to the Holders).
Each Certificate whether in temporary or definitive form shall be
countersigned by the manual or facsimile signature of an
authorized signatory of the Person acting as registrar and
transfer agent for the Securities, which shall initially be the
Property Trustee.
(d) The consideration received by the Trust on behalf
of the Holders of Securities of a Series of Securities for the
issuance of Securities of such series shall constitute a
contribution to the capital of the Trust and shall not constitute
a loan to the Trust.
(e) Upon issuance of Securities of any series as
provided in this Declaration, the Securities so issued shall be
deemed to be validly issued, fully paid and non- assessable.
<PAGE>
(f) Every Person, by virtue of having become a Holder
or a Preferred Security Beneficial Owner in accordance with the
terms of this Declaration, shall be deemed to have expressly
assented and agreed to the terms of, and shall be bound by, this
Declaration.
(g) Upon issuance of Securities of any series as
provided in this Declaration, the Regular Trustees on behalf of
the Trust shall return to JPM the $10 constituting initial trust
assets as set forth in the Original Declaration.
ARTICLE VIII
Dissolution and Termination of Trust
SECTION 8.01. Dissolution and Termination of Trust. The
Trust shall dissolve when:
(i) the Securities of all of the Series of Securities
shall have been called for redemption and the amounts
necessary for redemption thereof shall have been paid to the
Holders of the Securities of each such series in accordance
with the terms of the Securities of each such series; or
(ii) upon the expiration of the term of the Trust as
set forth in Section 3.17,
and thereafter the Trustees shall, after satisfaction of all
obligations of the Trust, file a certificate of cancelation with
the Secretary of State of the State of Delaware and the Trust
shall terminate. The Trustees shall so file such a certificate as
soon as practicable after the occurrence of an event referred to
in this Section 8.01.
The provisions of Sections 3.12 and 4.02 and Article X
shall survive the termination of the Trust.
ARTICLE IX
Transfer of Interests
SECTION 9.01. Transfer of Securities. (a) Securities
may only be transferred, in whole or in part, in accordance with
the terms and conditions set forth in this Declaration. Any
transfer or purported transfer of any Security not made in
accordance with this Declaration shall be null and void.
<PAGE>
(b) Subject to this Article IX, Preferred Securities
shall be freely transferable.
(c) Notwithstanding anything to the contrary in this
Declaration, Common Securities shall be non-assignable and
non-transferable, and may only be issued to, and held by, the
Sponsor.
SECTION 9.02. Transfer of Certificates. The Regular
Trustees shall cause to be kept at an office or agency to be
maintained by the Trust a register in which, subject to such
reasonable regulations as it may prescribe, the Trust shall
provide for the registration of Certificates and of transfers of
Certificates, which will be effected without charge but only upon
payment (with such indemnity as the Trust may require) in respect
of any tax or other government charges which may be imposed in
relation to it. The Property Trustee will be the initial
registrar and transfer agent (the "Registrar") for the purpose of
registering Certificates and transfers of Certificates as
provided herein.
Upon surrender for registration of transfer of any
Certificate at the office or agency of the Registrar, the Regular
Trustees shall execute and the Registrar shall countersign in
accordance with section 7.01(c) one or more new Certificates of
any authorized denominations and of a like aggregate Principal
Amount to be issued in the name of the designated transferee or
transferees. Every Certificate surrendered for registration of
transfer shall be accompanied by a written instrument of transfer
in form satisfactory to the Trust duly executed by the Holder or
such Holder's attorney duly authorized in writing. Each
Certificate surrendered for registration of transfer shall be
canceled by the Regular Trustees. A transferee of a Certificate
shall be entitled to the rights and subject to the obligations of
a Holder hereunder upon the receipt by such transferee of a
Certificate. By acceptance of a Certificate, each transferee
shall be deemed to have agreed to be bound by this Declaration.
SECTION 9.03. Deemed Security Holders. The Trustees may
treat the Person in whose name any Certificate shall be
registered on the books and records of the Trust as the sole
Holder of such Certificate and of the Securities represented by
such Certificate for purposes of receiving Distributions in
respect of such Securities and for all other purposes whatsoever
and, accordingly, shall not be bound to recognize any equitable
or other claim to or interest in such Certificate or in the
Securities represented by such Certificate on the part of any
Person,
<PAGE>
whether or not the Trustees shall have actual or other notice
thereof.
SECTION 9.04. Book Entry Interests. Unless otherwise
specified in the terms of any Series of Securities, (a) the
Common Securities Certificates of any such series will be issued
in the form of one or more, fully registered, global Common
Security Certificates of such series to be delivered to and in
the name of J.P. Morgan & Co. Incorporated by, or on behalf of,
the Trust and (b) the Preferred Securities Certificates of such
series, on original issuance (including Preferred Securities of
such series, if any, issued on any Option Closing Date pursuant
to the exercise of the overallotment option set forth in any
Underwriting Agreement), will be issued in the form of one or
more, fully registered, global Preferred Security Certificates of
such series (each a "Global Certificate"), to be delivered to
DTC, the initial Clearing Agency, by, or on behalf of, the Trust.
Such Global Certificates shall initially be registered on the
books and records of the Trust in the name of Cede & Co., the
nominee of DTC, and no Preferred Security Beneficial Owner of
Preferred Securities of any series will receive a definitive
Preferred Security Certificate of such series representing such
Preferred Security Beneficial Owner's interests in such Global
Certificates, except as provided in Section 9.07. Unless and
until definitive, fully registered Preferred Security
Certificates of a series (the "Definitive Preferred Security
Certificates") have been issued to the Preferred Security
Beneficial Owners of such series pursuant to Section 9.07:
(i) the provisions of this Section 9.04 shall be in
full force and effect;
(ii) the Trust and the Trustees shall be entitled to
deal with the Clearing Agency for all purposes of this
Declaration (including the payment of Distributions on the
Global Certificates of such series and receiving approvals,
votes or consents hereunder) as the Holder of the Preferred
Securities of such series and the sole Holder of such Global
Certificates and shall have no obligation to such Preferred
Security Beneficial Owners;
(iii) to the extent that the provisions of this
Section 9.04 conflict with any other provisions of this
Declaration, the provisions of this Section 9.04 shall
control; and
(iv) the rights of the Preferred Security Beneficial
Owners of such series shall be exercised
<PAGE>
only through the Clearing Agency and shall be limited to
those established by law and agreements between such
Preferred Security Beneficial Owners and the Clearing Agency
and/or the Clearing Agency Participants. DTC will make book
entry transfers among the Clearing Agency Participants and
receive and transmit payments of Distributions on the Global
Certificates of such series to such Clearing Agency
Participants.
SECTION 9.05. Notices to Holders of Certificates.
Whenever a notice or other communication to the Holders of
Securities of any Series of Securities is required to be given
under this Declaration, unless and until Definitive Preferred
Security Certificates of such series shall have been issued
pursuant to Section 9.07, the relevant Trustees shall give all
such notices and communications, specified herein to be given to
Preferred Securities Holders of such series, to the Clearing
Agency and, with respect to any Preferred Security Certificate of
such series registered in the name of a Clearing Agency or the
nominee of a Clearing Agency, the Trustees shall, except as set
forth herein have no notice obligations to the Preferred Security
Beneficial Owners of such series.
SECTION 9.06. Appointment of Successor Clearing
Agency. If any Clearing Agency elects to discontinue its services
as securities depository with respect to the Preferred Securities
of any series, the Regular Trustees may, in their sole
discretion, appoint a successor Clearing Agency with respect to
the Preferred Securities of such series.
SECTION 9.07. Definitive Preferred Securities
Certificates. If (i) a Clearing Agency elects to discontinue its
services as securities depository with respect to the Preferred
Securities of any series and a successor Clearing Agency is not
appointed within 90 days after such discontinuance pursuant to
Section 9.06 or (ii) the Regular Trustees elect after
consultation with the Sponsor to terminate the book entry system
through the Clearing Agency with respect to the Preferred
Securities of any series, then (x) Definitive Preferred Security
Certificates of such series shall be prepared by the Regular
Trustees on behalf of the Trust with respect to such Preferred
Securities and (y) upon surrender of the Global Certificates of
such series by the Clearing Agency, accompanied by registration
instructions, the Regular Trustees shall cause definitive
Preferred Security Certificates of such series to be delivered to
Preferred Security Beneficial Owners of such series in accordance
with the instructions of the Clearing Agency. Neither the
<PAGE>
Trustees nor the Trust shall be liable for any delay in delivery
of such instructions and each of them may conclusively rely on,
and shall be protected in relying on, such instructions.
SECTION 9.08. Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificates should be
surrendered to the Regular Trustees, or if the Regular Trustees
shall receive evidence to their satisfaction of the destruction,
loss or theft of any Certificate and (b) there shall be delivered
to the Regular Trustees such security or indemnity as may be
required by them to keep each of them harmless, then in the
absence of notice that such Certificate shall have been acquired
by a bona fide purchaser, any two Regular Trustees on behalf of
the Trust shall execute and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a
new Certificate of like denomination. In connection with the
issuance of any new Certificate under this Section 9.08, the
Regular Trustees may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Certificate issued pursuant
to this Section shall constitute conclusive evidence of an
ownership interest in the relevant Securities, as if originally
issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
ARTICLE X
Limitation of Liability; Indemnification
SECTION 10.01 Exculpation. (a) No Indemnified Person
shall be liable, responsible or accountable in damages or
otherwise to the Trust or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the
Trust and in a manner such Indemnified Person reasonably believed
to be within the scope of the authority conferred on such
Indemnified Person by this Declaration or by law, except that an
Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's gross
negligence (or, in the case of the Property Trustee, negligence)
or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Trust and upon such
information, opinions, reports or
<PAGE>
statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Trust,
including information, opinions, reports or statements as to the
value and amount of the assets, liabilities, profits, losses or
any other facts pertinent to the existence and amount of assets
from which Distributions to Holders of Securities of any Series
of Securities might properly be paid.
(c) Pursuant to ss. 3803(a) of the Business Trust Act,
the Holders of Securities of any Series of Securities, in their
capacities as Holders, shall be entitled to the same limitation
of personal liability that is extended to stockholders of private
corporations for profit organized under the General Corporation
Law of the State of Delaware.
SECTION 10.02. Indemnification and Compensation.
(a) To the fullest extent permitted by applicable law, the
Sponsor shall indemnify and hold harmless each Indemnified Person
from and against any loss, damage or claim incurred by such
Indemnified Person by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the
Trust and in a manner such Indemnified Person reasonably believed
to be within the scope of authority conferred on such Indemnified
Person by this Declaration, except that no Indemnified Person
shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by such Indemnified Person by reason of
gross negligence (or, in the case of the Property Trustee,
negligence) or willful misconduct with respect to such acts or
omissions.
(b) To the fullest extent permitted by applicable law,
expenses (including legal fees) incurred by an Indemnified Person
in defending any claim, demand, action, suit or proceeding shall,
from time to time, be advanced by the Sponsor prior to the final
disposition of such claim, demand, action, suit or proceeding
upon receipt by the Sponsor of an undertaking by or on behalf of
the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be
indemnified as authorized in Section 10.02(a).
(c) The Sponsor agrees to pay the Property Trustee and
the Delaware Trustee from time to time such compensation for all
services rendered by the Property Trustee and the Delaware
Trustee hereunder as may be mutually agreed upon in writing by
the Sponsor and the Property Trustee or the Delaware Trustee, as
the case may
<PAGE>
be, and, except as otherwise expressly provided herein, to
reimburse the Property Trustee and the Delaware Trustee upon its
or their request for all reasonable expenses, disbursements and
advances incurred or made by the Property Trustee or the Delaware
Trustee, as the case may be, in accordance with the provisions of
this Declaration, except any such expense, disbursement or
advance as may be attributable to its or their negligence or bad
faith.
SECTION 10.03. Outside Businesses. Any Covered Person,
the Sponsor, JPM, the Delaware Trustee and the Property Trustee
may engage in or possess an interest in other business ventures
of any nature or description, independently or with others,
similar or dissimilar to the business of the Trust, and the Trust
and the Holders of Securities of any Series of Securities shall
have no rights by virtue of this Declaration in and to such
independent ventures or the income or profits derived therefrom,
and the pursuit of any such venture, even if competitive with the
business of the Trust, shall not be deemed wrongful or improper.
None of the Covered Persons, the Sponsor, JPM, the Delaware
Trustee or the Property Trustee shall be obligated to present any
particular investment or other opportunity to the Trust even if
such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and any Covered Person, the
Sponsor, JPM, the Delaware Trustee and the Property Trustee shall
have the right to take for its own account (individually or as a
partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Covered Person,
the Delaware Trustee and the Property Trustee may engage or be
interested in any financial or other transaction with the Sponsor
or any Affiliate of the Sponsor, or may act as depositary for,
trustee or agent for, or act on any committee or body of Holders
of, securities or other obligations of the Sponsor or its
Affiliates.
ARTICLE XI
Accounting
SECTION 11.01. Fiscal Year. The fiscal year ("Fiscal
Year") of the Trust shall be the calendar year, or such other
year as is required by the Code.
SECTION 11.02. Certain Accounting Matters. (a) At all
times during the existence of the Trust, the Regular Trustees
shall keep, or cause to be kept, full books of account, records
and supporting documents, which shall reflect in reasonable
detail each transaction of the Trust.
<PAGE>
The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting
principles consistently applied. The Trust shall use the accrual
method of accounting for United States Federal income tax
purposes. The books and records of the Trust, together with a
copy of this Declaration and a certified copy of the Certificate
of Trust, or any amendment thereto, shall at all times be
maintained at the principal office of the Trust and shall be open
for inspection for any examination by any Holder or its duly
authorized representative for any purpose reasonably related to
its interest in the Trust during normal business hours.
(b) The Property Trustee shall prepare and mail to
each Holder of Securities an annual United States Federal income
tax information statement, on such form as is required by the
Code, containing such information with regard to the Securities
held by each Holder as is required by the Code and the Treasury
Regulations. Notwithstanding any right under the Code to deliver
any such statement at a later date, the Property Trustee shall
endeavor to deliver all such statements within 30 days after the
end of each Fiscal Year of the Trust. The Property Trustee shall
deliver to the Regular Trustees records of payments made to
Holders of Securities within 20 days after the end of each Fiscal
Year of the Trust.
(c) The Regular Trustees shall cause to be prepared
and filed with the appropriate taxing authority an annual United
States Federal income tax return, on such form as is required by
the Code, and any other annual income tax returns required to be
filed by the Regular Trustees on behalf of the Trust with any
state or local taxing authority, such returns to be filed as soon
as practicable after the end of each Fiscal Year of the Trust.
SECTION 11.03. Banking. The Trust shall maintain one or
more bank accounts in the name and for the sole benefit of the
Trust; provided, however, that all payments of funds in respect
of any Note relating to any Series of Securities held by the
Property Trustee shall be made directly to the Property Account
for such Series of Securities and no other funds from the Trust
shall be deposited in the Property Account for such Series of
Securities. The sole signatories for such accounts shall be
designated by the Regular Trustees; provided, however, that the
Property Trustee shall designate the sole signatories for the
Property Account.
SECTION 11.04. Withholding. The Trust and the Trustees
shall comply with all withholding requirements
<PAGE>
under United States Federal, state and local law. The Regular
Trustees (or their counsel) shall notify the Property Trustee of
any withholding requirements under local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms
or certificates as are necessary to establish an exemption from
withholding with respect to each Holder, and any representations
and forms as shall reasonably be requested by the Trust to assist
it in determining the extent of, and in fulfilling, its
withholding obligations. The Property Trustee shall file required
forms with applicable jurisdictions and, unless an exemption from
withholding is properly established by a Holder, the Property
Trustee shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Trust is
required to withhold and pay over any amounts to any authority
with respect to distributions or allocations to any Holder, the
amount withheld shall be deemed to be a distribution in the
amount of the withholding to the Holder. In the event of any
claimed overwithholding, Holders shall be limited to an action
against the applicable jurisdiction. If the amount to be withheld
was not withheld from a Distribution in respect of any Series of
Securities, the Property Trustee may reduce subsequent
Distributions in respect of such Series of Securities by the
amount of such withholding.
ARTICLE XII
Amendments and Meetings
SECTION 12.01. Amendments. (a) Except as otherwise
provided in this Declaration or by any applicable terms of any
Series of Securities, this Declaration may be amended by, and
only by, a written instrument executed by a majority of the
Regular Trustees (or, if there are only two Regular Trustees,
both Regular Trustees); provided, however, that (i) no amendment
to this Declaration shall be made unless the Regular Trustees
shall have obtained (A) either a ruling from the Internal Revenue
Service or a written unqualified opinion of nationally recognized
independent tax counsel experienced in such matters to the effect
that such amendment will not cause the Trust to be classified for
United States Federal income tax purposes as an association
taxable as a corporation or a partnership and to the effect that
the Trust will continue to be treated as a grantor trust for
purposes of United States Federal income taxation and (B) a
written unqualified opinion of nationally recognized independent
counsel experienced in such matters to the effect that such
amendment will not cause the Trust to be an Investment Company
which is required to be
<PAGE>
registered under the Investment Company Act, (ii) if Securities
of any Series of Securities are outstanding, any amendment which
would adversely affect the rights, privileges or preferences of
any Holder of such Securities may be effected only after
satisfaction of such additional requirements as may be set forth
in the terms of such Securities, (iii) Section 4.02, Section
9.01(c) and this Section 12.01 shall not be amended without the
consent of all Holders of the Securities, (iv) no amendment which
adversely affects the rights, powers and privileges of the
Property Trustee or the Delaware Trustee shall be made without
the consent of the Property Trustee or the Delaware Trustee, as
the case may be, (v) Article IV shall not be amended without the
consent of the Sponsor, and (vi) the rights of Holders of Common
Securities under Article V to increase or decrease the number of,
and to appoint, replace or remove, Trustees shall not be amended
without the consent of each Holder of Common Securities. The
Regular Trustees shall deliver to the Property Trustee written
notice of any proposed amendment to this Declaration containing
the form, or describing the terms, of such amendment no less than
three Business Days prior to the effectiveness of such amendment.
(b) Notwithstanding Section 12.02(a)(ii), this
Declaration may be amended without the consent of the Holders of
Securities of any series to (i) cure any ambiguity, (ii) correct
or supplement any provision in this Declaration that may be
defective or inconsistent with any other provision of this
Declaration, (iii) to add to the covenants, restrictions or
obligations of the Sponsor, and (iv) to conform to any changes in
the Investment Company Act or the trust exemption thereunder or
any change in interpretation or application of the Investment
Company Act or the trust exemption thereunder by the Commission,
so long as such amendment does not adversely affect the rights,
preferences or privileges of the Holders of Securities of any
series.
(c) The Regular Trustees shall promptly furnish to each
of the Property Trustee and the Delaware Trustee a copy of each
amendment to this Declaration and each Declaration Supplement.
SECTION 12.02. Meetings of the Holders of Securities;
Action by Written Consent. (a) Meetings of the Holders of
Preferred Securities of any series and/or Common Securities of
any series may be called at any time by the Regular Trustees (or
as provided in the terms of such Securities) to consider and act
on any matter on which Holders of such series or class of
Securities are entitled
<PAGE>
to act under the terms of this Declaration, the terms of such
Securities or the rules of any stock exchange on which such
Preferred Securities are listed or admitted for trading. The
Regular Trustees shall call a meeting of Holders of Preferred
Securities of any series or Common Securities of any series if
directed to do so by Holders of at least 10% in Principal Amount
of Securities of such series or class. Such direction shall be
given by delivering to the Regular Trustees one or more notices
in writing stating that the signing Holders of Securities of such
series or class wish to call a meeting and indicating the general
or specific purpose for which the meeting is to be called. Any
Holders of Securities of such series or class calling a meeting
shall specify in writing the Certificates held by the Holders of
Securities of such series or class exercising the right to call a
meeting and only those specified Certificates shall be counted
for purposes of determining whether the required percentage set
forth in the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the
terms of any Series of Securities, the following provision shall
apply to meetings of Holders of Securities of such series:
(i) Notice of any such meeting shall be given by mail
to each Trustee and all the Holders of Securities of such
series having a right to vote thereat not less than seven
days nor more than 60 days prior to the date of such
meeting. Whenever a vote, consent or approval of the Holders
of Securities of any Series of Securities is permitted or
required under this Declaration or the rules of any stock
exchange on which any Preferred Securities are listed or
admitted for trading, such vote, consent or approval may be
given at a meeting of the Holders of Securities of any
series. Any action that may be taken at a meeting of the
Holders of Securities of any series may be taken without a
meeting if a consent in writing setting forth the action so
taken is signed by Holders of such Securities owning not
less than the minimum aggregate Principal Amount of
Securities that would be necessary to authorize or take such
action at a meeting at which all Holders of such Securities
having a right to vote thereon were present and voting.
Prompt notice of the taking of action without a meeting
shall be given to the Holders of such Securities entitled to
vote who have not consented in writing. The Regular Trustees
may specify that any written ballot submitted to the Holders
of such Securities for the purpose of taking any action
without a meeting shall be returned to the
<PAGE>
Trust within the time specified by the Regular Trustees.
(ii) Each Holder of a Security may authorize any Person
to act for it by proxy on all matters in which a Holder of a
Security is entitled to participate, including waiving
notice of any meeting, or voting or participating at a
meeting. No proxy shall be valid after the expiration of
11 months from the date thereof unless otherwise provided in
the proxy. Every proxy shall be revocable at the pleasure of
the Holder of Security executing it. Except as otherwise
provided herein or in the terms of any Series of Securities,
all matters relating to the giving, voting or validity of
proxies shall be governed by the General Corporation Law of
the State of Delaware relating to proxies and judicial
interpretations thereunder as if the Trust were a Delaware
corporation and the Holders of Securities of such Series of
Securities were stockholders of a Delaware corporation.
(iii) Each meeting of the Holders of Securities of any
Series of Securities shall be conducted by the Regular
Trustees or by such other Person that the Regular Trustees
may designate.
(iv) Unless otherwise provided in the Business Trust
Act, this Declaration or the rules of any stock exchange on
which any Preferred Securities of any series are then listed
or admitted for trading, the Regular Trustees, in their sole
discretion, shall establish all other provisions relating to
meetings of Holders of Securities of such series, including
notice of the time, place or purpose of any meeting at which
any matter is to be voted on by any Holders of such
Securities, waiver of any such notice, action by consent
without a meeting, the establishment of a record date,
quorum requirements, voting in person or by proxy or any
other matter with respect to the exercise of any such right
to vote.
ARTICLE XIII
Representations of Property Trustee
and Delaware Trustee
SECTION 13.01. Representations and Warranties of
Property Trustee. (a) The Trustee which acts as initial Property
Trustee represents and warrants to the Trust and to the Sponsor
at the date of this Declaration, and each
<PAGE>
Successor Property Trustee represents and warrants to the Trust
and the Sponsor at the time of the Successor Property Trustee's
acceptance of its appointment as Property Trustee that:
(i) The Property Trustee is a banking corporation with
trust powers, duly organized, validly existing and in good
standing under the laws of the State of its incorporation,
with trust power and authority to execute and deliver, and
to carry out and perform its obligations under the terms of,
this Declaration.
(ii) The execution, delivery and performance by the
Property Trustee of this Declaration has been duly
authorized by all necessary corporate action on the part of
the Property Trustee. The Declaration has been duly executed
and delivered by the Property Trustee, and constitutes a
legal, valid and binding obligation of the Property Trustee,
enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors'
rights generally and to general principles of equity and the
discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding
in equity or at law).
(iii) The execution, delivery and performance of this
Declaration by the Property Trustee does not conflict with
or constitute a breach of the charter or By-laws of the
Property Trustee.
(iv) No consent, approval or authorization of, or
registration with or notice to, any banking authority which
supervises or regulates the Property Trustee is required for
the execution, delivery or performance by the Property
Trustee of this Declaration (including any Declaration
Supplement).
(v) The Property Trustee satisfies the qualifications
set forth in Section 5.01(c).
(b) The Trustee which acts as initial Delaware Trustee
represents and warrants to the Trust and the Sponsor at the date
of this Declaration and each Declaration Supplement, and each
Successor Delaware Trustee represents and warrants to the Trust
and the Sponsor at the time of the Successor Delaware Trustee's
acceptance of its appointment as Delaware Trustee, that it
satisfies, or will satisfy, as applicable, the qualifications set
forth in Section 5.01(a)(3).
<PAGE>
ARTICLE XIV
Miscellaneous
SECTION 14.01. Notices. All notices provided for in
this Declaration shall be in writing, duly signed by the party
giving such notice, and shall be delivered, telecopied or mailed
by first class mail, as follows:
(a) if given to the Trust, in care of the Regular
Trustees at the Trust's mailing address set forth below (or
such other address as the Regular Trustees on behalf of the
Trust may give notice of to the Property Trustee, the
Delaware Trustee and the Holders of Securities of any Series
of Securities):
J.P. Morgan Index Funding Company I
In care of J.P. Morgan & Co. Incorporated
60 Wall Street
New York, New York 10260-0060
Attention of H. Christian Raymond
Andrew G. Kerber
Susan L. McCullin
Trustees
Facsimile No: (212) 648-5175
(b) if given to the Property Trustee, at the mailing
address of the Property Trustee set forth below (or such
other address as the Property Trustee may give notice of to
the Trust and the Holders of Securities of any Series of
Securities):
First Trust of New York, National Association
100 Wall Street, Suite 1600
New York, New York 10005
Attention of Corporate Trust Administration
Facsimile No: (212) 809-5459
(c) if given to the Delaware Trustee, at the mailing
address of the Delaware Trustee set forth below (or such
other address as the Delaware Trustee may give notice of to
the Trust and the Holders of Securities of any Series of
Securities):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention of Corporate Trust Administration
Facsimile No: (302) 651-8882
<PAGE>
(d) if given to the Holder of Common Securities of any
series, at the mailing address of the Sponsor set forth
below (or such other address as the Holder of such Common
Securities may give notice to the Property Trustee, the
Delaware Trustee and the Trust):
J.P. Morgan & Co. Incorporated
60 Wall Street
New York, New York 10260-0060
Attention of Assistant Secretary
Facsimile No: (212) 648-5175
(e) if given to any other Holder, at the address set
forth on the books and records of the Trust.
A copy of any notice to the Property Trustee or the
Delaware Trustee shall also be sent to the Trust. All notices
shall be deemed to have been given when received in person,
telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is
refused delivery or cannot be delivered because of a changed
address of which no notice was given, such notice or other
document shall be deemed to have been delivered on the date of
such refusal or inability to deliver.
SECTION 14.02. Undertaking for Costs. All parties to
this Declaration agree, and each Holder of Securities of any
Series of Securities by his or her 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 Declaration, or in any suit against the Property
Trustee for any action taken or omitted by it as Property
Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable 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 14.02 shall not apply to any suit
instituted by the Property Trustee, to any suit instituted by any
Holder of Preferred Securities of any series, or group of Holders
of Preferred Securities of any series, holding more than 10% in
aggregate Principal Amount of such outstanding Preferred
Securities, or to any suit instituted by any Holder of Preferred
Securities of any series for the enforcement of the payment of
the principal of (or premium, if any) or interest on the Note
associated with such Preferred Securities, on or after the
respective due dates expressed in such Note.
<PAGE>
SECTION 14.03. Governing Law. This Declaration and the
rights of the parties hereunder shall be governed by and
interpreted in accordance with the laws of the State of Delaware
and all rights and remedies shall be governed by such laws
without regard to the principles of conflict of laws of the State
of Delaware or any other jurisdiction that would call for the
application of the law of any jurisdiction other than the State
of Delaware; provided, however, that there shall not be
applicable to the Trust, the Trustees or this Declaration any
provision of the laws (statutory or common) of the State of
Delaware pertaining to trusts that relate to or regulate, in a
manner inconsistent with the terms hereof (a) the filing with any
court or governmental body or agency of trustee accounts or
schedules of trustee fees and charges, (b) affirmative
requirements to post bonds for trustees, officers, agents or
employees of a trust, (c) the necessity for obtaining court or
other governmental approval concerning the acquisition, holding
or disposition of real or personal property, (d) fees or other
sums payable to trustees, officers, agents or employees of a
trust, (e) the allocation of receipts and expenditures to income
or principal, (f) restrictions or limitations on the permissible
nature, amount or concentration of trust investments or
requirements relating to the titling, storage or other manner of
holding or investing trust assets or (g) the establishment of
fiduciary or other standards of responsibility or limitations on
the acts or powers of trustees that are inconsistent with the
limitations or liabilities or authorities and powers of the
Trustees as set forth or referenced in this Declaration.
Section 3540 of Title 12 of the Delaware Code shall not apply to
the Trust.
SECTION 14.04. Headings. Headings contained in this
Declaration are inserted for convenience of reference only and do
not affect the interpretation of this Declaration or any
provision hereof.
SECTION 14.05. Partial Enforceability. If any provision
of this Declaration, or the application of such provision to any
Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to persons
or circumstances other than those to which it is held invalid,
shall not be affected thereby.
SECTION 14.06. Counterparts. This Declaration may
contain more than one counterpart of the signature pages and this
Declaration may be executed by the affixing of the signature of
the Sponsor and each of the Trustees to one of such counterpart
signature pages. All of such counterpart signature pages shall be
read as though one, and they shall
<PAGE>
have the same force and effect as though all of the signers had
signed a single signature page.
SECTION 14.07. Intention of the Parties. It is the
intention of the parties hereto that the Trust not be classified
for United States Federal income tax purposes as an association
taxable as a corporation or partnership but that the Trust be
treated as a grantor trust for United States Federal income tax
purposes. The provisions of this Declaration shall be interpreted
to further this intention of the parties.
SECTION 14.08. Successors and Assigns. Whenever in this
Declaration any of the parties hereto is named or referred to,
the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by
the Sponsor and the Trustees shall
<PAGE>
bind and inure to the benefit of their respective successors and
assigns, whether so expressed.
SECTION 14.09. Effect of Declaration Supplements. Upon
the execution of any Declaration Supplement, such Declaration
Supplement shall form a part of this Declaration for all
purposes, and every Holder of Certificates thereafter
authenticated and delivered hereunder or thereunder shall be
bound hereby.
SECTION 14.10. Merger. Notwithstanding anything
contained herein to the contrary, the parties hereto hereby
acknowledge that J.P. Morgan Index Funding Company, LLC (the
"LLC"), a limited liability company formed under the laws of the
State of Delaware, will be merged into the Trust, and the Trust
will be the surviving entity of such merger. The parties hereto
hereby consent to such merger. The securities issued by the LLC
prior to the consummation of the merger are the Series A
Securities of the LLC. Upon the effectiveness of the merger, such
Series A Securities shall constitute a Series of Securities
hereunder, shall be designated as Series A Securities of the
Trust and shall be entitled to the benefits of the provisions
contained in this Declaration, including Section 3.18. The Note
issued by Morgan Guaranty to the LLC in connection with the
issuance of the Series A Securities of the LLC together all
proceeds thereof shall be deemed to be assets associated with the
Series A Securities of the Trust.
IN WITNESS WHEREOF, the undersigned have caused these
presents to be executed as of the day and year first above
written.
J.P. MORGAN & CO. INCORPORATED,
as Sponsor,
by
/s/ Gene A. Capello
--------------------------
Name: Gene A. Capello
Title: Vice President
David A. Diamond, as Trustee,
by
/s/ David A. Diamond
---------------------------
David A. Diamond
<PAGE>
Andrew G. Kerber, as Trustee,
by
/s/ Andrew G. Kerber
--------------------------
Andrew G. Kerber
Susan L. McCullin, as Trustee,
by
/s/ Susan L. McCullin
---------------------------
Susan L. McCullin
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION, as
Property Trustee,
by
/s/ Catherine F. Donohue
--------------------------
Name: Catherine F. Donohue
Title: Vice President
WILMINGTON TRUST COMPANY, as
Delaware Trustee,
by
/s/ Charlotte Paglia
------------------------
Name: Charlotte Paglia
Title: Financial Services
Officer
<PAGE>
STATE OF ,)
) ss.
COUNTY OF ,)
BEFORE ME, the undersigned authority, on this __ day of
March, 1998, personally appeared (on behalf of J.P. Morgan & Co.
Incorporated), H. Christian Raymond, Andrew G. Kerber and Susan
McCullin, each known to me (or proved to me by introduction upon
the oath of a person known to me) to be the person and officer,
as the case may be, whose name is subscribed to the foregoing
instrument, and each acknowledged to me that he executed the same
as the act of such trust for the purposes and consideration
herein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS day of MARCH,
1998.
------------------------------
NOTARY PUBLIC, STATE OF NEW
YORK
Print Name:
Commission Expires:
<PAGE>
STATE OF NEW YORK,)
) ss.
COUNTY OF NEW YORK)
BEFORE ME, the undersigned authority, on this ___day of
March, 1998, personally appeared
of J.P. Morgan & Co. Incorporated, known to me
(or proved to me by introduction upon the oath of a person known
to me) to be the person and officer, as the case may be, whose
name is subscribed to the foregoing instrument, and acknowledged
to me that he executed the same as the act of such trust for the
purposes and consideration herein expressed and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL THIS day of MARCH,
1998.
------------------------------
NOTARY PUBLIC, STATE OF NEW
YORK
Print Name:
Commission Expires:
<PAGE>
STATE OF NEW YORK,)
) ss.
COUNTY OF NEW YORK)
BEFORE ME, the undersigned authority, on this ____ day
of March, 1998, personally appeared of First Trust
of New York, National Association known to me (or proved to me by
introduction upon the oath of a person known to me) to be the
person and officer whose names are subscribed to the foregoing
instrument, and acknowledged to me that she executed the same as
the act of such trust for the purposes and consideration herein
expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS day of MARCH,
1998.
(SEAL)
------------------------------
NOTARY PUBLIC, STATE OF NEW
YORK
Print Name:
Commission Expires:
<PAGE>
STATE OF DELAWARE,)
) ss.
COUNTY OF )
BEFORE ME, the undersigned authority, on this ___ day
of March, 1998, personally appeared of Wilmington
Trust Company known to me (or proved to me by introduction upon
the oath of a person known to me) to be the person and officer
whose names are subscribed to the foregoing instrument, and
acknowledged to me that she executed the same as the act of such
trust for the purposes and consideration herein expressed and in
the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS day of MARCH,
1998.
(SEAL)
------------------------------
NOTARY PUBLIC, STATE OF
DELAWARE
Print Name:
Commission Expires:
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
J.P. MORGAN INDEX FUNDING COMPANY I
This Certificate of Trust is being executed as of
December 12, 1996 for the purpose of creating a business trust
pursuant to the Delaware Business Trust Act, 12 Del. C. ss.ss. 3801
et seq. (the "Act").
The undersigned hereby certify as follows:
1. Name. The name of the business trust is "J.P. Morgan
Index Funding Company I" (the "Trust").
2. Delaware Trustee. The name and business address of
the Delaware resident trustee of the Trust meeting the
requirements of Section 3807 of the Act are as follows:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
3. Effective Date. This Certificate of Trust shall be
effective immediately upon filing in the office of the Secretary
of State of the State of Delaware.
4. Counterparts. This Certificate of Trust may be
executed in one or more counterparts.
IN WITNESS WHEREOF, the undersigned, being all of the
trustees of the Trust, have executed this Certificate of Trust as
of the day and year first above written.
WILMINGTON TRUST COMPANY, as
Delaware Trustee,
by
-----------------------------
Name:
Title:
<PAGE>
------------------------------
H. Christian Raymond
Trustee
-------------------------------
Andrew G. Kerber
Trustee
-------------------------------
Susan L. McCullin
Trustee
<PAGE>
EXHIBIT B
DECLARATION SUPPLEMENT DATED [ ], 199[ ]
TERMS OF
SECURITIES
Pursuant to Section 3.03 of the Amended and Restated
Declaration of Trust of J.P. Morgan Index Funding Company I (the
"Trust") dated as of March 26, 1998 (as amended from time to
time, the "Declaration"), the undersigned, as Sponsor of the
Trust, and the undersigned Regular Trustees hereby authorizes the
issuance of, and establishes the designations, rights,
privileges, restrictions, preferences and other terms and
provisions of a Series of Securities as set forth below (each
capitalized term used but not defined herein having the meaning
set forth in the Declaration):
1. Definitions. All capitalized terms used but not
defined herein shall have the meanings assigned to them in the
Declaration. The following additional terms have the respective
meanings specified below:
"Business Day" means any day other than a day on which
banking institutions in The City of New York are permitted or
required by applicable law to close.
"Guarantee" means the Guarantee Agreement dated as of
[ ], 199 , executed and delivered by JPM for the benefit
of the Holders from time to time of the Series [ ] Preferred
Securities, as amended from time to time.
"Note Guarantee" means the Note Guarantee Agreement
dated as of [ ], 199_, executed and delivered by JPM for the
benefit of the Property Trustee for the benefit of the Holders
from time to time of the Series [ ] Securities, as amended from
time to time.
"Principal Amount" means, initially, the face amount of
the Series [ ] Securities, and, at any time during the life of
the Series [ ] Securities, the product of (a) the face amount of
the Series [ ] Securities and (b) (i) a fraction the numerator of
which shall equal the average of the [ ] Total Return
Index for the 10 consecutive trading days prior to such time and
the denominator of which shall equal the [ ] Total Return
Index on the date the Series [ ] Securities are issued minus (ii)
the applicable factor, which is designed to offset the costs of
issuing and hedging the indexation of the Series [ ] Securities.
<PAGE>
"Redemption Price" means, with respect to any date
fixed for redemption (whether pursuant to optional redemption by
the Holders thereof or otherwise) of any Series [ ] Security, the
Principal Amount of such Series [ ] Security, plus accumulated
and unpaid dividends (whether or not declared) to such date.
"Series [ ] Common Securities" has the meaning assigned
to such term in paragraph 2 hereof.
"Series [ ] Note" means the $[ ] initial
principal amount (or up to [ ] initial principal amount
if and to the extent the over-allotment option granted by the
Trust to the Underwriters of the Series [ ] Preferred Securities
is exercised) Series [ ] Note due [ ] of Morgan Guaranty
and any other Notes issued in exchange for such Series [ ] Note
upon the terms and subject to the conditions set forth in
Section 7(e) hereof.
"Series [ ] Preferred Securities" has the meaning
assigned to such term in paragraph 2 hereof.
"Series [ ] Securities" means the Series [ ] Preferred
Securities and the Series [ ] Common Securities.
2. Authorization and Designation. A Series of
Securities, "Series [ ] Securities", is hereby created, and
(a) [ ] Preferred Securities of Series [ ] Securities (or
up to [ ] Preferred Securities of Series [ ]Securities
if and to the extent the over-allotment option granted by the
Trust to the underwriters of the Series [ ] Preferred Securities
is exercised) with a Face Amount of $[ ] per Preferred
Security are hereby authorized and designated as "Preferred
Securities, Series[ ]" (hereinafter called the "Series [ ]
Preferred Securities"), and (b) [ ] Common Securities of
Series [ ] Securities with Face Amount of $[ ] per Common
Security and designated as "Common Securities, Series [ ]"
(hereinafter called the "Series [ ] Common Securities").
The Preferred Security Certificates evidencing the
Series [ ] Preferred Securities shall be substantially in the
form attached hereto as Annex I, with such changes and additions
thereto or deletions therefrom as may be required by ordinary
usage, custom or practice or to conform to the rules of any stock
exchange on which the Series [ ] Preferred Securities are listed,
and the Common Security Certificates evidencing the Series [ ]
Common Securities shall be substantially in the form attached
hereto as Annex II, with such changes and additions thereto or
<PAGE>
deletions therefrom as may be required by ordinary usage, custom
or practice. The Series [ ] Common Securities are to be issued
and sold to J.P. Morgan & Co. Incorporated ("JPM") in
consideration of $[ ] in cash. In connection with the
issuance and sale of the Series [ ] Securities, the Trust, on
behalf of the Holders of the Series [ ] Securities, will
purchase, as trust assets, the Series [ ] Note having an
aggregate principal amount equal to the sum of the aggregate
initial Principal Amount of the Series [ ] Preferred Securities
and the aggregate Principal Amount of the Series [ ] Common
Securities so issued and bearing interest at an annual rate equal
to the annual Distribution rate on the Series [ ] Securities and
having payment and redemption provisions which correspond to the
payment and redemption provisions of the Series [ ] Securities.
The Series [ ] Note and the proceeds thereof shall be deemed to
be "associated with" the Series [ ] Securities.
3. Distributions. (a) Distributions payable on each
Series [ ] Security will be [describe method of determination
thereof] [fixed at a rate per annum of [ ]% (the "Coupon
Rate")] of the [Face Amount] [Principal Amount] of the Series [ ]
Securities. The term "Distributions" as used in these terms means
such periodic cash distributions and any such interest payable
unless otherwise stated. A Distribution on the Series [ ]
Securities will be made by the Property Trustee only to the
extent that interest payments are made in respect of the
Series [ ] Notes held by the Property Trustee. The amount of
dividends payable for any full quarterly dividend period shall be
computed on the basis of a 360-day year of twelve 30-day months
and, for any period shorter than a full quarterly dividend
period, shall be computed on the basis of a 360-day year of
twelve 30-day months and on the basis of the actual number of
days elapsed (but never greater than 30) in any period shorter
than a month.
(b) Distributions on the Series [ ] Preferred
Securities will be [noncumulative] [cumulative], will accrue from
[ ] and will be payable quarterly in arrears, on the last
calendar day of each March, June, September and December of each
year commencing on [ ], except as otherwise described
below, but only if and to the extent that interest payments are
made in respect of the Series [ ] Notes held by the Property
Trustee.
(c) Distributions on the Series [ ] Securities will be
payable promptly by the Property Trustee (or other Paying Agent)
upon receipt of immediately available funds to the Holders
thereof as they appear on the books and records
<PAGE>
of the Trust on the relevant record dates. While the Series [ ]
Preferred Securities remain in book-entry only form, the relevant
record dates shall be one Business Day prior to the relevant
Distribution date, and if the Series [ ] Preferred Securities are
no longer in book-entry only form, the relevant record dates will
be selected by the [Sponsor] [Regular Trustee] but shall be at
least one Business Day prior to the relevant Distribution date,
which record and payment dates correspond to the record and
payment dates for the Series [ ] Note. Distributions payable on
the Series [ ] Securities that are not punctually paid on any
Distribution payment date as a result of Morgan Guaranty having
failed to make the corresponding interest payment on the
Series [ ] Note will forthwith cease to be payable to the Person
in whose name such Series [ ] Security is registered on the
relevant record date, and such defaulted Distribution will
instead be payable to the Person in whose name such Series [ ]
Security is registered on the special record date established by
the Regular Trustees, which record date shall correspond to the
special record date. Subject to any applicable laws and
regulations and the provisions of the Declaration, each payment
in respect of the Series [ ] Securities will be made as described
in paragraph 10 hereof. If any date on which Distributions are
payable on the Series [ ] Securities is not a Business Day, then
payment of the Distribution payable on such date will be made on
the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except
that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding
Business Day, in each case with the same force and effect as if
made on such date.
(d) All Distributions paid with respect to the Series
[ ] Preferred Securities and the Series [ ] Common Securities
will be paid pro rata to the Holders thereof entitled thereto. If
an Event of Default has occurred and is continuing, the Series
[ ] Preferred Securities shall have a priority over the Series
[ ] Common Securities with respect to Distributions.
(e) In the event that there is any money or other
property held by or for the Trust on behalf of the Holders of the
Series [ ] Securities that is not accounted for under the
Declaration, such money or property shall be distributed pro rata
among the Holders of the Series [ ] Preferred Securities and the
Series [ ] Common Securities.
4. Ranking; Liquidation. (a) Subject to the last
paragraph of this paragraph 4, the Series [ ] Preferred
Securities shall, with respect to dividend rights
<PAGE>
and rights on dissolution of the Trust, rank pari passu with the
Series [ ] Common Securities.
(b) In the event of any voluntary or involuntary
dissolution of the Trust, the Holders of the Series [ ] Preferred
Securities and the Series [ ] Common Securities at the date of
the dissolution will be entitled to receive pro rata solely out
of the assets of the Trust available for distribution to Holders
of Series [ ] Preferred Securities and Series [ ] Common
Securities which assets shall consist solely of the Series [ ]
Note and the proceeds thereof, after paying or making reasonable
provision to pay all claims and obligations of the Trust
associated with the Series [ ] Securities in accordance with
Section 3808(e) of the Business Trust Act, an amount equal to the
aggregate of the Principal Amount of such Series [ ] Preferred
Security and Series [ ] Common Security plus accrued and unpaid
Distributions thereon to the date of payment (such amount being
the "Liquidation Distribution"). No Holder of any Security of any
Series of Securities other than the Series [ ] Securities shall
have any rights to the Series [ ] Note or the proceeds thereof or
any payments relating to the Series [ ] Note. The Holders of the
Series [ ] Securities shall have rights to no asset of the Trust
other than the Series [ ] Note and the proceeds thereof and shall
receive Distributions on the Series [ ] Securities only to the
extent that payments on the Series [ ] Note have been made by
Morgan Guaranty.
If, upon any such dissolution, the Liquidation
Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate
Liquidation Distribution, then the amounts payable directly by
the Trust on the Series [ ] Preferred Securities and the Series
[ ] Common Securities shall be paid, subject to the next
paragraph, on a pro rata basis.
Holders of Series [ ] Common Securities will be
entitled to receive dividends or Liquidation Distributions upon
any such payment or dissolution pro rata with Holders of Series
[ ] Preferred Securities, except that, if an Event of Default has
occurred and is continuing, the Series [ ] Preferred Securities
shall have a priority over the Series [ ] Common Securities with
respect to such dividends or Liquidation Distribution.
5. Redemption or Exchange. (a) The Series [ ]
Securities shall be redeemable at the option of the Holders
thereof, in whole or in part on each [anniversary of Stated
Maturity] prior to the stated maturity thereof, beginning
[ ], 199 , upon not less than 22 Business Days but no
<PAGE>
more than 32 Business Days notice to DTC (which shall notify the
Trust which shall promptly notify the Property Trustee), at the
Redemption Price. The Series [ ] Preferred Securities and the
Series [ ] Common Securities shall be redeemed on a pro-rata
basis as described in paragraph 5(d) hereof.
(b) If there shall have occurred after [ ],
199 , a change in any applicable U.S. law or regulation or in the
interpretation thereof (including but not limited to the
enactment or imminent enactment of any legislation, the
publication of any judicial decisions, regulatory rulings,
regulatory procedures, or notices or announcements (including
notices or announcements of intent to adopt such procedures or
regulations), or a change in the official position or in the
interpretation of any law or regulation by any legislative body,
court, governmental authority or regulatory body, irrespective of
the manner in which such change is made known) (any such change
relating to taxes, a "Tax Event" and, any such change relating to
the Investment Company Act, an "Investment Company Event" and,
together with a Tax Event, a "Special Event"), and the Trust and
JPM shall have been advised by legal counsel (which counsel shall
not be an employee of JPM or the Trust) that, as a result of such
change, there exists more than an insubstantial risk that
(i) (A) Morgan Guaranty will be precluded from deducting the
interest paid on the Series [ ] Note for federal income tax
purposes, (B) the Trust will be subject to federal income tax
with respect to the interest received on the Series [ ] Note,
(C) the contingent principal in excess of the Face Amount of the
Series [ ] Preferred Securities (if any) payable on Series [ ]
Note is not or would not be deductible by Morgan Guaranty for
federal income tax purposes or (D) the Trust is or would be
subject to more than a de minimis amount of other taxes, duties
or other governmental charges or (ii) the Trust is or will be
considered an "investment company" that is required to be
registered under the Investment Company Act, then within 90 days
following the occurrence and during the continuance of any such
Special Event, JPM shall have the right to direct Morgan Guaranty
to redeem the Series [ ] Note in whole or in an amount sufficient
to cause the discontinuance of such Special Event, in either case
in cash, or, in the case of a Tax Event, to allow the Series [ ]
Note to remain outstanding and to indemnify the Trust for any
taxes payable by the Trust as a result of such Tax Event. In the
event that Morgan Guaranty shall redeem the Series [ ] Note, the
Trust will redeem at the Redemption Price a principal amount of
the Series [ ] Preferred Securities and the related Series [ ]
Common Securities equal to the principal amount of the Series [ ]
Note so
<PAGE>
redeemed. If a Tax Event shall have occurred and be continuing
and JPM shall have elected to allow the Series [ ] Note to remain
outstanding and provided that the Trust shall received
indemnification by JPM for all taxes payable by the Trust as a
result of such Tax Event, then the Trust may allow the Series [ ]
Preferred Securities and the related Series [ ] Common Securities
to remain outstanding.
(c) The Series [ ] Securities shall be redeemed at the
Redemption Price with the proceeds from the repayment by Morgan
Guaranty when due of the Series [ ] Note or upon any redemption
by Morgan Guaranty of such Series [ ] Note pursuant to the terms
thereof.
(d) If fewer than all the outstanding Series [ ]
Preferred Securities and Series [ ] Common Securities are to be
so redeemed, the Series [ ] Preferred Securities and the
Series [ ] Common Securities will be redeemed pro rata, it being
understood that Series [ ] Preferred Securities held of record by
a Clearing Agency or nominee will be redeemed as described in
paragraph 5(f)(ii) below. If a partial redemption would result in
the delisting of the Series [ ] Preferred Securities by any
national securities exchange or other organization on which the
Series [ ] Preferred Securities are then listed, the Trust will
only redeem the Series [ ] Securities in whole.
(e) The Trust may not redeem fewer than all the
outstanding Series [ ] Securities unless all accrued and unpaid
Distributions have been paid on all Series [ ] Securities for all
quarterly distribution periods terminating on or prior to the
date of redemption.
(f)(i) Notice of any redemption of the Series [ ]
Securities (a "Redemption/Distribution Notice") will be given by
the Regular Trustees on behalf of the Trust by mail to each
Holder of Series [ ] Securities to be redeemed or exchanged not
less than 30 nor more than 60 days prior to the date fixed for
redemption or exchange thereof. For purposes of the calculation
of the date of redemption or exchange and the dates on which
notices are given pursuant to this paragraph (f)(i), a
Redemption/Distribution Notice shall be deemed to be given on the
day such notice is first mailed by first-class mail, postage
prepaid, to Holders of Series [ ] Securities. Each
Redemption/Distribution Notice shall be addressed to the Holders
of Series [ ] Securities at the address of each such Holder
appearing in the books and records of the Trust. No defect in the
Redemption/ Distribution Notice or in the mailing of either
thereof with respect to any Holder shall affect the validity of
the
<PAGE>
redemption or exchange proceedings with respect to any other
Holder.
(ii) In the event that fewer than all the outstanding
Series [ ] Securities are to be redeemed, the Series [ ]
Securities to be redeemed will be redeemed pro rata from each
Holder of Series [ ] Securities (subject to adjustment to
eliminate fractional Securities), it being understood that, in
respect of Series [ ] Preferred Securities registered in the name
of and held of record by DTC (or a successor Clearing Agency) or
any other nominee, the Series [ ] Preferred Securities will be
redeemed from, and the distribution of the proceeds of such
redemption will be made to, each Clearing Agency Participant (or
person on whose behalf such nominee holds such securities) in
accordance with the procedures applied by such agency or nominee.
(iii) If the Trust gives or any Holder of Series [ ]
Securities gives the Regular Trustees, on behalf of the Trust, a
Redemption/Distribution Notice in respect of a redemption of
Series [ ] Securities as provided in this paragraph 5 (which
notice will be irrevocable) then (A) while the Series [ ]
Preferred Securities are in book- entry only form, by 12:00 noon,
New York City time, on the redemption date, provided that Morgan
Guaranty has paid the Property Trustee in immediately available
funds a sufficient amount of cash in connection with the related
redemption or maturity of the Series [ ] Note, the Property
Trustee will deposit irrevocably with DTC (or any successor
Clearing Agency) funds sufficient to pay the applicable
Redemption Price with respect to the Series [ ] Preferred
Securities and will give DTC (or any successor Clearing Agency)
irrevocable instructions and authority to pay the Redemption
Price to the Holders of the Series [ ] Preferred Securities and
(B) if the Series [ ] Preferred Securities are issued in
definitive form and, in any event with respect to the Series [ ]
Common Securities, and in either case provided that Morgan
Guaranty has paid the Property Trustee in immediately available
funds a sufficient amount of cash in connection with the related
redemption or maturity of the Series [ ] Note, the Property
Trustee will pay the relevant Redemption Price to the Holders of
such Series [ ] Securities by check mailed to the address of the
relevant Holder appearing on the books and records of the Trust
on the redemption date. If a Redemption/Distribution Notice shall
have been given and funds deposited as required, if applicable,
then immediately prior to the close of business on the redemption
date, Distributions will cease to accrue on the Series [ ]
Securities called for redemption, such Series [ ] Securities will
no longer be deemed to be outstanding and
<PAGE>
all rights of Holders of such Series [ ] Securities so called for
redemption will cease, except the right of the Holders of such
Series [ ] Securities to receive the Redemption Price, but
without interest on such Redemption Price. Neither the Trustees
nor the Trust shall be required to register or cause to be
registered the transfer of any Series [ ] Securities which have
been so called for redemption. If any date fixed for redemption
of Series [ ] Securities is not a Business Day, then payment of
the Redemption Price payable on such date will be made on the
next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except
that, if such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day,
in each case with the same force and effect as if made on such
date fixed for redemption. If payment of the Redemption Price in
respect of Series [ ] Securities is improperly withheld or
refused and not paid either by the Property Trustee or, in the
case of the Series [ ] Preferred Securities, pursuant to the
Guarantee, by JPM, Distributions on such Series [ ] Securities
will continue to accrue at the Coupon Rate, from the original
redemption date to the date of payment, in which case the actual
payment date will be considered the date fixed for redemption for
purposes of calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by
the Regular Trustees on behalf of the Trust (x) in the case of
the Series [ ] Preferred Securities, to DTC or its nominee (or
any successor Clearing Agency or its nominee) if the Global
Certificates have been issued or, if Definitive Preferred
Security Certificates have been issued, to the Holders of the
Series [ ] Preferred Securities and (y) in the case of the Series
[ ] Common Securities, to the Holders of the Series [ ] Common
Securities.
(v) Subject to the foregoing and applicable law
(including, without limitation, United States Federal securities
laws), JPM or any of its subsidiaries may at any time and from
time to time purchase outstanding Series [ ] Preferred Securities
by tender, in the open market or by private agreement.
6. Voting Rights. (a) Except as shall be otherwise
established herein and except as otherwise required by the
Business Trust Act, (i) the Holders of the Series [ ] Preferred
Securities shall have, with respect to such Series [ ] Preferred
Securities, no right or power to vote on any question or matter
or in any proceeding or to be represented at, or to receive
notice of, any meeting of Holders and (ii) all voting rights of
the Trust shall be
<PAGE>
vested exclusively in the Holders of the Series [ ] Common
Securities. The Series [ ] Common Securities shall entitle the
Holders of Series [ ] Common Securities to vote in proportion to
their percentage ownership interest in the Trust upon all matters
upon which Series [ ] Common Members have the right to vote. All
Holders of Series [ ] Common Securities shall have the right to
vote separately as a class on any matter on which the Holders of
Series [ ] Common Securities have the right to vote regardless
of the voting rights of any other Holder.
(b) Subject to paragraph 5(e), if (i) the Trust fails to pay
dividends or other distributions in full on the Series [ ] Securities
for 30 days following the date on which such payment was due in
accordance with the terms of the Series [ ] Securities; or (ii) an
Event of Default (as defined in the Series [ ] Note) occurs and is
continuing with respect to such Note, then (x) the Holders holding a
Majority in Principal Amount of the outstanding Series [ ] Preferred
Securities, acting as a single class, will be entitled to cause the
Trust, by written direction to the Property Trustee, (A) to waive any
such Event of Default and its consequences or to enforce the Trust's
rights under the Series [ ] Note against Morgan Guaranty, (B) in the
case of clause (i) above, declare and pay dividends or other
distributions on the Series [ ] Securities; provided that any such
payments or other distributions shall be paid solely from the proceeds
of dividend or other payments made on the Series [ ] Note and received
by the Trust on behalf of the Holders of the Series [ ] Securities and
(C) in the case of clause (ii) above, to waive any such Event of
Default and its consequences or to enforce the Trust's rights under
the Note Guarantee with respect to the Series [ ] Securities and (y)
in the case of clause (ii) above if such Event of Default is
attributable to the failure of Morgan Guaranty to pay principal or
interest on the Series [ ] Note on the date such principal or interest
is otherwise payable (or in the case of a redemption, on the
redemption date) any Holder of the outstanding Series [ ] Preferred
Securities may directly institute a proceeding under the Note
Guarantee with respect to the Series [ ] Preferred Securities against
JPM for enforcement of payment to such Holder of the related Principal
Amount of or dividends or other distributions on, as applicable, the
Series [ ] Preferred Securities of such Holder (a "Direct Action") on
or after the date of the occurrence of such Event of Default. In
connection with such Direct Action, the rights of the Holder of the
Series [ ] Common Securities of such series shall be subrogated to the
rights of such Holder of Series [ ] Preferred Securities to the extent
of any payment made by JPM to such Holder of Series [ ] Preferred
<PAGE>
Securities in such Direct Action. For purposes of determining
whether the Trust has failed to pay dividends in full within 30
days of the applicable payment date, dividends or other
distributions shall be deemed to remain in arrears,
notwithstanding any payments in respect thereof, until full
cumulative dividends or other distributions have been or
contemporaneously are declared and paid with respect to all
dividend or other distribution periods terminating on or prior to
the date of payment of such full cumulative dividends or other
distributions. Not later than 30 days after the right to vote
arises, the Property Trustee will solicit such vote. If the
Property Trustee fails to solicit such vote within such 30-day
period, the Holders holding 10% in Principal Amount of the
outstanding Series [ ] Preferred Securities, acting as a single
class, will be entitled to convene such meeting. Any such voting
rights shall cease immediately if, in the case of clause (i)
above, the Trust shall have paid in full all accumulated and
unpaid dividends or other distributions on the Series [ ]
Securities or if, in the case of clause (ii) above, such default
of Morgan Guaranty shall have been cured or waived. Subject to
paragraph 5(e), Holders of the Series [ ] Preferred Securities
may, by vote of at least a Majority in Principal Amount of the
Series [ ] Preferred Securities direct the time, method and
place of conducting any proceeding for any remedy available to
the Property Trustee, or exercising any trust or power conferred
upon the Property Trustee.
(c) If any resolution is proposed to be adopted by the
Holders providing for, or the Regular Trustees propose to take,
any action to effect:
(i) any variation or abrogation of the powers,
preferences and special rights of the Series [ ] Securities
by way of amendment of this Declaration or otherwise, which
variation or abrogation adversely affects the Holders of
Series [ ] Securities,
(ii) the dissolution of the Trust, or
(iii) the commencement of any bankruptcy, insolvency,
reorganization or other similar proceeding involving the
Trust,
then, in the case of any resolution or action described in
clause (i) above, the Holders holding outstanding Series [ ]
Securities and, in the case of any resolution or action described
in clause (ii) or (iii) above, the Holders holding any
outstanding Series of Securities will be entitled to vote
together as a class on such resolution or action of the Sponsor
(but not any other resolution or
<PAGE>
action) and such resolution or action shall not be effective
except with the approval of the Holders holding a Majority in
Principal Amount of all outstanding Securities or the Series [ ]
Securities, as applicable; provided that no such resolution or
action shall, without the consent of each Holder of Securities of
any series affected thereby, (1) change the terms of the
Securities established pursuant to paragraphs 2, 3, 4, 5 or 14
hereof in a manner adverse to such Holder, (2) reduce the stated
percentage of Principal Amount necessary to approve such
resolution or action or (3) amend the provisions of this
paragraph 5(c); provided further, however, that no such approval
shall be required under clauses (i) and (ii) if the dissolution
of the Trust is proposed or initiated upon the occurrence of any
of the events specified in Section 8.01 of the Declaration. The
powers, preferences or special rights of the Series [ ]
Securities will be deemed not to be varied by the creation or
issuance of, and no vote will be required for the creation or
issuance of, any Securities of any other series.
(d) Notwithstanding that Holders of the Series [ ]
Preferred Securities are entitled to vote or consent under any of
the circumstances described above, any of the Series [ ]
Preferred Securities that are owned by JPM or by any entity
directly or indirectly controlling or controlled by or under
indirect or direct common control with JPM, shall not be entitled
to vote or consent and shall, for the purposes of such vote or
consent, be treated as if they were not outstanding.
(e) The right of any Holder of the Series [ ]
Securities to receive payment of Distributions on the Series [ ]
Securities in accordance with this Declaration Supplement and the
Declaration on or after the respective payment dates therefor, or
to institute suit for the enforcement of any such payment on or
after such payment dates, shall not be impaired without the
consent of such Holder.
(f) A waiver of a Series [ ] Note Event of Default by
the Property Trustee at the written direction of the Holders of
the Series [ ] Securities constitutes a waiver of the
corresponding Event of Default in respect of the Series [ ]
Securities; provided that if the Series [ ] Note Event of Default
is not waivable under the Series [ ] Note, then the Event of
Default in respect of the Series [ ] Securities shall also not be
waivable.
(g)(i) Morgan Guaranty and the Property Trustee may,
without the consent of the Holders of any Preferred
Securities, enter into senior notes
<PAGE>
supplemental to any Note relating to any Series of
Securities for, among others, one or more of the following
purposes: (x) to evidence the succession of another person
to, and the assumption by such successor of, Morgan
Guaranty's obligations under such Note; (y) to add covenants
of Morgan Guaranty, or surrender any rights of Morgan
Guaranty, for the benefit of the Property Trustee; and
(z) to cure any ambiguity, or correct any inconsistency in,
such Note. Morgan Guaranty and the Trust, with the consent
of the Holders of not less than a Majority in Principal
Amount of the outstanding Preferred Securities of any series
may modify the Note relating to such Series of Securities,
provided that no such modification may, without the consent
of the Holders of all outstanding Preferred Securities
affected thereby, (w) reduce the amount of Preferred
Securities of such series the Holders of which must consent
to any amendment, supplement or waiver of such Note;
(x) reduce the rate of or extend the time for the payment of
interest on the Note; (y) alter the method of calculation
of, or reduce, the amount paid at stated maturity or extend
the stated maturity of such Note (other than pursuant to the
terms of such Note) or (z) make such Note payable in money
or property other than that stated in such Note.
(ii) The Note Guarantee with respect to a Series of
Securities may be amended only with the prior approval of
the Property Trustee acting on behalf of the Holders of the
Securities of such Series of Securities; provided that no
such amendment shall adversely affect the Holders of the
Preferred Securities of any Series of Securities without the
consent of a Majority in Principal Amount of the Preferred
Securities of such affected Series of Securities, with
Holders of Preferred Securities of each such affected series
voting as a single and separate class. All guarantees and
agreements contained in the Note Guarantee shall bind the
successors, assignees, receivers, trustees and
representatives of JPM and shall inure to the benefit of the
Property Trustee, for the benefit of Holders of the
Securities of each Series of Securities, as the holder of
each Note then outstanding.
(iii) Except with respect of any changes that do not
adversely affect the rights of Holders of the Preferred
Securities of any series (in which case no vote will be
required), the Preferred Guarantee may be amended only with
the prior approval of the Holders of not less than a
Majority in Principal Amount of the outstanding Preferred
Securities of each affected
<PAGE>
series, with Holders of Preferred Securities of each such
affected series voting as a single and separate class. All
guarantees and agreements contained in any Preferred
Guarantee shall bind the successors, assignees, receivers,
trustees and representatives of JPM and shall inure to the
benefit of the Holders of the Preferred Securities of the
applicable series then outstanding.
(iv) The procedures and mechanisms for implementing any
such modification to any Note, Note Guarantee or Preferred
Guarantee shall be identical to the procedures and
mechanisms set forth in paragraph (b) above and in the
following paragraph.
Any required approval or direction of Holders of any
class of Series [ ] Securities may be given at a separate
meeting of Holders of such class of Series [ ] Securities
convened for such purpose, at a meeting of all of the
Holders of Securities or pursuant to written consent. The
Regular Trustees will cause a notice of any meeting at which
Holders of any class of Series [ ] Securities are entitled
to vote, or of any matter upon which action by written
consent of such Holders is to be taken, to be mailed to each
Holder of record of such class of Series [ ] Preferred
Securities. Each such notice will include a statement
setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any
resolution proposed for adoption at such meeting on which
such Holders are entitled to vote or of such matter upon
which written consent is sought and (iii) instructions for
the delivery of proxies or consents.
No vote or consent of the Holders of Series [ ]
Securities will be required for the Trust to redeem and cancel
Series [ ] Securities in accordance with the Declaration.
(h) A Note Event of Default under a Note associated
with any particular Series of Securities or an Event of Default
under the Declaration in respect of such Series of Securities
shall not constitute a Note Event of Default under a Note
associated with any other Series of Securities or an Event of
Default under the Declaration in respect of any other Series of
Securities and shall not prohibit payments in respect of such
other Series of Securities. Payments in respect of principal of
or interest on a Note, the Note Guarantee or the Guarantee, in
each case associated with a particular Series of Securities shall
be
<PAGE>
for the sole benefit of the Holders of Securities of such Series
of Securities.
Except as provided in this paragraph 6, Holders of the
Series [ ] Preferred Securities will have no rights to increase
or decrease the number of Trustees or to appoint, remove or
replace a Trustee, which voting rights are vested solely in the
Holders of the Series [ ] Common Securities.
7. Pro Rata Treatment. A reference in these terms of
the Series [ ] Securities to any payment, distribution or
treatment as being "pro rata" shall mean pro rata to each Holder
of Series [ ] Securities according to the aggregate Principal
Amount of the Series [ ] Preferred Securities or the Series [ ]
Common Securities, as the case may be, held by the relevant
Holder in relation to the aggregate Principal Amount of all
Series [ ] Common Securities and all Series [ ] Preferred
Securities outstanding unless, in relation to a payment, an Event
of Default has occurred and is continuing, in which case any
funds available to make such payment shall be paid first to each
Holder of the Series [ ] Preferred Securities pro rata according
to the aggregate Principal Amount of Series [ ] Preferred
Securities held by the relevant Holder relative to the aggregate
Principal Amount of all Series [ ] Preferred Securities
outstanding, and only after satisfaction of all amounts owed to
the Holders of the Series [ ] Preferred Securities, to each
Holder of Series [ ] Common Securities pro rata according to the
aggregate Principal Amount of Series [ ] Common Securities held
by the relevant Holder relative to the aggregate Principal Amount
of all Series [ ] Common Securities outstanding.
8. Ranking. The Series [ ] Preferred Securities rank
pari passu and payment thereon will be made pro rata with the
Series [ ] Common Securities except that where an Event of
Default occurs and is continuing, the rights of Holders of Series
[ ] Preferred Securities to payment in respect of Distributions
and payments upon liquidation, redemption or otherwise rank prior
to the rights of Holders of the Series [ ] Common Securities to
such payments
9. Mergers, Consolidations or Amalgamations. The Trust
may not consolidate, amalgamate, merge with or into, or be
replaced by, or sell, transfer or lease all or substantially all
its properties and assets to, any Person.
10. Transfer, Exchange, Method of Payments. Payment of
Distributions and payments on redemption of the Series [ ]
Securities will be payable, the transfer of the Series [ ]
Preferred Securities will be registrable, and
<PAGE>
Series [ ] Securities will be exchangeable for Series [ ]
Securities of other denominations of the applicable class and of
a like aggregate Principal Amount at the principal corporate
trust office of the Property Trustee in The City of New York;
provided that payment of Distributions may be made at the option
of the Regular Trustees on behalf of the Trust on behalf of the
Holders of Series [ ] Securities by check mailed to the address
of the Persons entitled thereto and that the payment on
redemption of any Series [ ] Security will be made only upon
surrender of such Series [ ] Security to the Property Trustee.
Notwithstanding anything to the contrary set forth herein, the
Series [ ] Common Securities shall not be transferable or
assignable by the Holders thereof.
11. Acceptance of Agreements. Each Holder of Series [ ]
Securities, by the acceptance thereof, agrees to the provisions
of the Note Guarantee, including the subordination provisions
therein, and the Series [ ] Note and in the case of Holders of
Series [ ] Preferred Securities, the Guarantee, including the
subordination provisions therein.
12. No Preemptive Rights. The Holders of Series [ ]
Securities shall have no preemptive rights to subscribe to any
additional Series [ ] Securities or any Securities of any other
series.
13. Miscellaneous. These terms shall constitute a part
of the Declaration. The Trust will provide a copy of the
Declaration and the Series [ ] Note to a Holder without charge on
written request to the Trust at its principal place of business.
14. Sinking Fund. The Series [ ] Securities [shall]
[shall not] be subject to the operation of a retirement or
sinking fund.
15. Guarantee of Liabilities. It shall be a condition
precedent to the issuance of the Series [ ] Securities that JPM
execute the Guarantee.
16. Authorization of Agreements. The Sponsor, on behalf
of the Trust, may enter into and perform the Underwriting
Agreement without any further act, vote or approval of any
Holder.
17. Registrar and Transfer Agent. The Sponsor hereby
appoints First Trust of New York, National Association as its
initial registrar, transfer agent and Paying Agent for the
Series [ ] Securities.
<PAGE>
18. Governing Law. This Declaration Supplement shall be
governed by and construed in accordance with the laws of the
State of Delaware without giving effect to the principles of
conflict of laws thereof.
IN WITNESS WHEREOF, the undersigned Sponsor of the
Trust has hereto set its hands as of the day and year first above
written.
J.P. MORGAN & CO.
INCORPORATED, as Sponsor,
By:----------------------
Name:
Title:
By:-----------------------
Name:
Title: Regular Trustee
By:------------------------
Name:
Title: Regular Trustee
<PAGE>
ANNEX I
IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE
INSERT--THIS PREFERRED SECURITY IS A GLOBAL CERTIFICATE WITHIN
THE MEANING OF THE DECLARATION HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY ("DTC") OR
A NOMINEE OF DTC. THIS PREFERRED SECURITY IS EXCHANGEABLE FOR
PREFERRED SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE DECLARATION AND NO TRANSFER OF THIS PREFERRED
SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED SECURITY AS A
WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR
ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE TRUST OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
PREFERRED SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC OR ANY SUCCESSOR DEPOSITARY AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC OR ANY SUCCESSOR DEPOSITARY, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A
PERSON IS WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
Preferred Securities _______________
Number ________________
CUSIP NO. _____________
<PAGE>
Certificate Evidencing Preferred Securities
of
J.P. Morgan Index Funding Company I
[ ]% Series [ ] Preferred Securities
J.P. Morgan Index Funding Company I, a statutory
business trust created under the laws of the State of Delaware
(the "Trust"), hereby certifies that [ ] (the "Holder") is
the registered owner of [ ] preferred securities of the
Trust representing undivided beneficial interests in certain
assets of the Trust designated the [ ]% Preferred Securities,
Series [ ] (the "Preferred Securities"). The transfer of
Preferred Securities is registrable on the books and records of
the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form
for registration of transfer. The designations, rights,
privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities are set forth in, and this
certificate and the Preferred Securities represented hereby are
issued and shall in all respects be subject to the terms and
provisions of, the Amended and Restated Declaration of Trust of
the Trust dated as of March 26, 1998, as the same may be amended
from time to time or supplemented by a Declaration Supplement
(the "Declaration"), including the designation of the terms of
Preferred Securities as set forth in a Declaration Supplement.
The Preferred Securities and the related Common Securities issued
by the Trust pursuant to the Declaration represent undivided
beneficial interests in certain assets of the Trust, specifically
(a) the Note associated with the Preferred Securities and the
related Common Securities (the "Note") issued by Morgan Guaranty
Trust Company of New York ("Morgan Guaranty"), a trust company
with full banking powers organized under the laws of the State of
New York and a wholly owned subsidiary of J.P. Morgan & Co.
Incorporated, a Delaware corporation ("JPM"), to the Property
Trustee for the benefit of the Holders of the Preferred
Securities and the related Common Securities and (b) the proceeds
of the Note. The Holder is entitled to the benefits of the
Guarantee Agreement of JPM dated as of [ ], 199_ (the
"Guarantee"), to the extent provided therein and is entitled to
direct the Property Trustee (as defined in the Declaration) to
enforce its rights under the Note to the extent provided therein.
The Trust will furnish a copy of the Declaration, the Guarantee
and the Note Guarantee (as defined below) to the Holder without
charge, upon written
<PAGE>
request to the Trust, at its principal place of business or
registered office.
The Holder of this Certificate, by accepting this
Certificate, is deemed to have agreed to the terms of (i) the
Note related to the Preferred Securities and (ii) the Guarantee
and the Note Guarantee Agreement dated as of [ ], 199_,
executed and delivered by JPM for the benefit of the Property
Trustee for the benefit of the Holders of the Preferred
Securities and the related Common Securities (the "Note
Guarantee"), including that each of the Guarantee and the Note
Guarantee is subordinate and junior in right of payment to all
other indebtedness, liabilities and obligations of JPM and pari
passu with the most senior preferred or preference stock of any
series now or hereafter issued by JPM and pari passu with any
guarantee now or hereafter entered into by JPM in respect of any
preferred or preference stock or interest of any affiliate of
JPM, as and to the extent provided in the Guarantee or the Note
Guarantee, as applicable.
<PAGE>
Upon receipt of this certificate, the Holder is bound
by the Declaration and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Trustees of the Trust have
executed this certificate this day of , 199 .
J.P. MORGAN INDEX FUNDING
COMPANY I,
by
------------------------------
Name:
Title: Trustee
by
------------------------------
Name:
Title: Trustee
Dated:
Countersigned and Registered:
First Trust of New York, National Association, as
Transfer Agent and Registrar
By:
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
- ---------------------------------------------------------------
- ---------------------------------------------------------------
- ---------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- ---------------------------------------------------------------
- ---------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- ---------------------------------------------------------------
- ---------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the
books of the Trust. The agent may substitute another to act for
him or her.
Date:
Signature:
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH
THE NAME(S) AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATEVER.
<PAGE>
Annex II
THIS CERTIFICATE MAY NOT BE TRANSFERRED
Certificate Number of Common Securities
Certificate Evidencing Common Securities
of
J.P. Morgan Index Funding Company I
[ ]% Series [ ] Common Securities
J.P. Morgan Index Funding Company I, a statutory
business trust formed under the laws of the State of Delaware
(the "Trust"), hereby certifies that J.P. Morgan & Co.
Incorporated (the "Holder") is the registered owner of
[ ] common securities of the Trust representing
undivided beneficial interests in certain assets of the Trust
designated the "[ ]% Common Securities" (the "Common
Securities"). The transfer of Common Securities is registrable on
the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for registration of transfer and
satisfaction of the other conditions set forth in the Declaration
(as defined below) including, without limitation, Section 9.01(c)
thereof. The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Common
Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended
and Restated Declaration of Trust of the Trust dated as of March
26, 1998, as the same may be amended from time to time or
supplemented by a Declaration Supplement (the "Declaration"),
including the designation of the terms of Common Securities as
set forth in a Declaration Supplement. The Common Securities and
the related Preferred Securities issued by the Trust pursuant to
the Declaration represent undivided beneficial interests in
certain assets of the Trust, specifically (a) the Note associated
with the Common Securities and the related Preferred Securities
(the "Note") issued by Morgan Guaranty Trust Company of New York
("Morgan Guaranty"), a trust company with full banking powers
organized under the laws of the State of New York and a wholly
owned subsidiary of J.P. Morgan & Co. Incorporated, a
<PAGE>
Delaware corporation ("JPM"), to the Property Trustee for the
benefit of the Holders of the Common Securities and the related
Preferred Securities and (b) the proceeds of the Note. The Trust
will furnish a copy of the Declaration and the Note Guarantee (as
defined below) to the Holder without charge upon written request
to the Trust at its principal place of business or registered
office.
The Holder of this Certificate, by accepting this
Certificate, is deemed to have agreed to the terms of the
(i) Note related to the Common Securities and (ii) the Note
Guarantee Agreement dated as of [ ], 199_, executed and
delivered by JPM for the benefit of the Property Trustee for the
benefit of the Holders of the Common Securities and the related
Preferred Securities (the "Note Guarantee"), including that the
Note Guarantee is subordinate and junior in right of payment of
all other indebtedness, liabilities and obligations of JPM and
pari passu with the most senior preferred or preference stock of
any series now or hereafter issued by JPM and pari passu with any
guarantee now or hereafter entered into by JPM in respect of any
Preferred or preference stock or interest of any affiliate of
JPM, as and to the extent provided in the Note Guarantee.
<PAGE>
Upon receipt of this certificate, the Holder is bound
by the Declaration and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Trustees of the Trust have
executed this certificate this [ ] day of [ ] 199_.
J.P. MORGAN INDEX FUNDING
COMPANY I,
by_________________________,
Name:
Title: Trustee
by_________________________,
Name:
Title: Trustee
Dated:
Countersigned and Registered:
First Trust of New York, National Association
Transfer Agent and Registrar
by_____________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Common Security Certificate to:
- ----------------------------------------------------------------
- ----------------------------------------------------------------
- ----------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- ----------------------------------------------------------------
- ----------------------------------------------------------------
- ----------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- ----------------------------------------------------------------
- ----------------------------------------------------------------
- ----------------------------------------------------------------
agent to transfer this Common Security Certificate on the books
of the Trust. The agent may substitute another to act for him or
her.
Date: _____________________
Signature: _________________________
(Sign exactly as your name appears on the other side of this
Common Security Certificate)
<PAGE>
EXHIBIT 4(B)(1)
[FORM OF] AMENDED AND RESTATED GUARANTEE AGREEMENT
[FORM OF] AMENDED AND RESTATED GUARANTEE AGREEMENT
(this "Guarantee Agreement"), dated as of ,
199[ ], executed and delivered by J.P. Morgan & Co.
Incorporated, a Delaware corporation ("J.P. Morgan") and
First Trust of New York, National Association, as the
initial Guarantee Trustee (as defined below) for the benefit
of the Holders (as defined below) from time to time of the
Preferred Securities (as defined below) of J.P. Morgan Index
Funding Company I, a Delaware statutory business trust (the
"Trust"), successor by merger to J.P. Morgan Index Funding
Company, LLC, a Delaware limited liability company (the
"Company").
WHEREAS, the Company issued its common limited liability company
interests, Series A (the "Common Securities") to and received related
capital contributions from J.P. Morgan and J.P. Morgan Ventures Corporation
("JPM Ventures"), and issued and sold preferred limited liability company
interests, Series A (the "Preferred Securities"; the Preferred Securities
and the Common Securities collectively referred to herein as the "Series A
Securities") with such rights, preferences, privileges, limitations and
restrictions as were set forth in a written resolution or resolutions (a
"Written Action") by the managing members of the Company providing for the
issue of such series;
WHEREAS, the Company purchased a Related Note (as defined below)
from Morgan Guaranty Trust Company of New York, a trust company with full
banking powers organized under the laws of the State of New York ("Morgan
Guaranty") with the proceeds from such issuance and sale of the Preferred
Securities and the Common Securities; and
WHEREAS, J.P. Morgan irrevocably and unconditionally agreed to
the extent set forth in the Guarantee Agreement dated as October 16, 1997
(the "Original Guarantee Agreement") to pay to the Holders of the Preferred
Securities the Guarantee Payments (as defined therein) and to make certain
other payments on the terms and conditions set forth therein.
WHEREAS, pursuant to an Agreement and Plan of Merger dated as of
November 14, 1997, the Company has been merged into the Trust;
<PAGE>
WHEREAS, J.P. Morgan desires to amend and restate the Original
Guarantee Agreement in order to subject it to the provisions of the Trust
Indenture Act (as defined below), including to appoint an indenture trustee
(hereunder, and pursuant to Section 5.02 of the Original Guarantee
Agreement, such amendment may be effectuated without the consent of the
Holders of the Series A Securities;
NOW, THEREFORE, J.P. Morgan executes and delivers this Guarantee
Agreement for the benefit of the Holders.
ARTICLE I
Definitions
(a) Capitalized terms used in this Guarantee Agreement but not
defined in the preamble above have the respective meanings assigned to them
in this Article I.
(b) A term defined anywhere in this Guarantee Agreement has the
same meaning throughout.
(c) All references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified,
supplemented or amended from time to time.
(d) All references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified.
(e) A term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless otherwise defined in
this Guarantee Agreement or unless the context otherwise requires.
(f) A reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in
Rule 405 of the Securities Act of 1933, as amended, or any successor rule
thereunder.
"Commission" means the Securities and Exchange Commission.
"Common Securities" means the securities representing undivided
beneficial interests in the Related Note held by the Property Trustee for
the benefit of the
<PAGE>
Holders of the Series A Securities, and having the terms set forth in the
Written Action.
"Covered Person" means any Holder of Preferred Securities.
"Declaration" means the Amended and Restated Declaration of Trust
dated as of March 26, 1998 among J.P. Morgan, as Sponsor, and the trustees
of the Trust.
"Distributions" means the periodic distributions and other
payments payable to Holders of Preferred Securities in accordance with the
terms of the Preferred Securities set forth in the Written Action.
"Event of Default" means a default by J.P. Morgan on any of its
payment or other obligations under this Guarantee Agreement.
"Guarantee Payments" means, with respect to the Preferred
Securities, the following payments, without duplication, to the extent not
paid by the Trust: (i) any accumulated and unpaid distributions which have
been theretofore declared on the Preferred Securities, to the extent Morgan
Guaranty has made a corresponding payment on the Related Note, out of funds
legally available therefor, (ii) the Preferred Redemption Price (including
all accumulated and unpaid distributions), to the extent Morgan Guaranty
has made a corresponding payment on the Related Note, payable out of funds
legally available therefor with respect to any Preferred Securities called
for redemption upon redemption thereof and (iii) upon the liquidation of
the Trust, the lesser of (a) the Liquidation Distribution (as defined
below) with respect to such series and (b) the amount of the assets of the
Trust consisting of the Related Note and the proceeds thereof, legally
available for distribution to Holders of Preferred Securities of such
series in liquidation.
"Guarantee Trustee" means First Trust of New York, National
Association until a Successor Guarantee Trustee has been appointed and
accepted such appointment pursuant to the terms of this Guarantee Agreement
and thereafter means each such Successor Guarantee Trustee.
"Holder" means any Person from time to time holding any Preferred
Securities; provided, however, that in determining whether the Holders of
the requisite percentage of Preferred Securities have given any request,
notice, consent or waiver hereunder, "Holder" shall not include J.P. Morgan
or any entity directly or indirectly controlling or
<PAGE>
controlled by or under direct or indirect common control with J.P. Morgan.
"Indemnified Person" means the Guarantee Trustee, any Affiliate
of the Guarantee Trustee, and any officers, directors, shareholders,
members, partners, employees, representatives or agents of the Guarantee
Trustee.
"Liquidation Distribution" means, with respect to the Preferred
Securities, the aggregate Principal Amount of the Preferred Securities and
all accumulated and unpaid distributions (whether or not declared) with
respect to the Preferred Securities to but excluding the date of payment.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other
entity of whatever nature.
"Preferred Redemption Price" means, with respect to the Preferred
Securities, the aggregate Principal Amount of all the Preferred Securities
plus accumulated and unpaid distributions (whether or not declared) with
respect to the Preferred Securities to but excluding the date of
redemption.
"Preferred Securities" has the meaning set forth in the first
WHEREAS clause above.
"Principal Amount" means, at any time with respect to any
Preferred Security, the Redemption Value, the applicable Early Redemption
Value or the stated liquidation preference thereof, as applicable, as
determined in accordance with the Written Consent.
"Property Trustee" means the Person acting as Property Trustee
under the Declaration.
"Related Note" means the obligation of Morgan Guaranty in which
the proceeds from the issuance of the Preferred Securities and the related
Common Securities were invested. The Related Note shall be deemed to be
"associated with" the Series A Securities.
"Responsible Officer" means, with respect to the Guarantee
Trustee, the chairman of the board of directors, the president, any
vice-president, any assistant vice- president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or
<PAGE>
assistant trust officer or any other officer of the Guarantee Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Series of Securities" means any series of Preferred Securities
and the related series of Common Securities including the Series A
Securities.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as a Guarantee Trustee under
Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II
Trust Indenture Act
SECTION 2.01. Trust Indenture Act; Application. (a) This
Guarantee Agreement is subject to the provisions of the Trust Indenture Act
that are required to be part of this Guarantee Agreement and shall, to the
extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.
(c) The application of the Trust Indenture Act to this Guarantee
Agreement shall not affect the nature of the Preferred Securities as equity
securities representing undivided beneficial interests in the relevant
Related Note held by the Trust.
SECTION 2.02. Lists of Holders of Preferred Securities. (a) J.P.
Morgan shall provide the Guarantee Trustee with such information as is
required under Section 312(a) of the Trust Indenture Act at the times and
in the manner provided in Section 312(a).
(b) The Guarantee Trustee shall comply with its obligations under
Sections 310(b), 311 and 312(b) of the Trust Indenture Act.
<PAGE>
SECTION 2.03. Reports by the Guarantee Trustee. Within 60 days
after May 15 of each year, the Guarantee Trustee shall provide to the
Holders of the Preferred Securities such reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form, in the manner
and at the times provided by Section 313 of the Trust Indenture Act. The
Guarantee Trustee shall also comply with the requirements of Section 313(d)
of the Trust Indenture Act.
SECTION 2.04. Periodic Reports to the Guarantee Trustee. J.P.
Morgan shall provide to the Guarantee Trustee, the Commission and the
Holders of the Preferred Securities, as applicable, such documents, reports
and information as required by Section 314(a)(1)-(3) (if any) of the Trust
Indenture Act and the compliance certificates required by Section 314(a)(4)
and (c) of the Trust Indenture Act, any such certificates to be provided in
the form, in the manner and at the times required by Section 314(a)(4) and
(c) of the Trust Indenture Act (provided that any certificate to be
provided pursuant to Section 314(a)(4) of the Trust Indenture Act shall be
provided within 120 days of the end of each fiscal year of the Trust).
SECTION 2.05. Evidence of Compliance with Conditions Precedent.
J.P. Morgan shall provide the Guarantee Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Guarantee
Agreement which relate to any of the matters set forth in Section 314(c) of
the Trust Indenture Act. Any certificate or opinion required to be given
pursuant to Section 314(c) shall comply with Section 314(e) of the Trust
Indenture Act.
SECTION 2.06. Events of Default; Waiver. (a) Subject to
Section 2.06(b), Holders of Preferred Securities may by vote of at least a
majority in Principal Amount of the Preferred Securities, (A) direct the
time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee, or exercising any trust or power
conferred upon by the Guarantee Trustee, in either case with respect to the
Series A Securities or (B) on behalf of the Holders of all Preferred
Securities waive any past Event of Default with respect to the Series A
Securities and its consequences. Upon such waiver, any 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 Guarantee Agreement, but no
such waiver shall extend to any subsequent or other default or Event of
Default (with respect to the Series A Securities or any other series of
securities) or impair any right consequent thereon.
<PAGE>
(b) The right of any Holder of Preferred Securities to receive
payment of the Guarantee Payments in accordance with this Guarantee
Agreement, or to institute suit for the enforcement of any such payment,
shall not be impaired without the consent of each such Holder.
SECTION 2.07. Disclosure of Information. The disclosure of
information as to the names and addresses of the Holders of the Preferred
Securities in accordance with Section 312 of the Trust Indenture Act,
regardless of the source from which such information was derived, shall not
be deemed to be a violation of any existing law, or any law hereafter
enacted which does not specifically refer to Section 312 of the Trust
Indenture Act, nor shall the Guarantee Trustee be held accountable by
reason of mailing any material pursuant to a request made under
Section 312(b) of the Trust Indenture Act.
SECTION 2.08. Conflicting Interest. The Declaration shall be
deemed to be specifically described in this Guarantee Agreement for the
purposes of clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.
ARTICLE III
Powers, Duties and Rights of Guarantee Trustee
SECTION 3.01. Powers and Duties of the Guarantee Trustee. (a)
This Guarantee Agreement shall be held by the Guarantee Trustee in trust
for the benefit of the Holders of the Preferred Securities. The Guarantee
Trustee shall not transfer its right, title and interest in this Guarantee
Agreement to any Person except a Successor Guarantee Trustee on acceptance
by such Successor Guarantee Trustee of its appointment to act as Guarantee
Trustee or to a Holder of Preferred Securities exercising his or her rights
pursuant to Section 5.04. The right, title and interest of the Guarantee
Trustee to this Guarantee Agreement shall vest automatically in each Person
who may hereafter be appointed as Guarantee Trustee in accordance with
Article IV. Such vesting and cessation of title shall be effective whether
or not conveyancing documents have been executed and delivered.
(b) If an Event of Default with respect to the Preferred
Securities occurs and is continuing, the Guarantee Trustee shall enforce
this Guarantee Agreement for the benefit of the Holders of the Preferred
Securities.
<PAGE>
(c) This Guarantee Agreement and all moneys received by the
Property Trustee hereunder in respect of the Guarantee Payments will not be
subject to any right, charge, security interest, lien or claim of any kind
in favor of, or for the benefit of the Guarantee Trustee or its agents or
their creditors.
(d) The Guarantee Trustee shall, within 30 days after the
occurrence of an Event of Default with respect to the Preferred Securities,
transmit by mail, first class postage prepaid, to the Holders of the
Preferred Securities, as their names and addresses appear upon the
register, notice of all Events of Default known to the Guarantee Trustee,
unless such defaults shall have been cured before the giving of such
notice; provided, that, the Guarantee 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 Guarantee Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders of the
Preferred Securities. The Guarantee Trustee shall not be deemed to have
knowledge of any default except any default as to which the Guarantee
Trustee shall have received written notice or a Responsible Officer charged
with the administration of the Guarantee Agreement shall have obtained
written notice.
(e) The Guarantee Trustee shall not resign as a Trustee unless a
Successor Guarantee Trustee has been appointed and accepted that
appointment in accordance with Article IV.
SECTION 3.02. Certain Rights and Duties of the Guarantee
Trustee. (a) The Guarantee Trustee, before the occurrence of an Event of
Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically
set forth in this Guarantee Agreement, and no implied covenants shall be
read into this Guarantee Agreement against the Guarantee Trustee. In case
an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.06(a)), the Guarantee Trustee shall exercise such of
the rights and powers vested in it by this Guarantee Agreement, and use the
same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in this conduct of his or her own
affairs.
<PAGE>
(b) No provision of this Guarantee Agreement shall be construed
to relieve the Guarantee Trustee from liability for its own negligent
action, its own negligent failure to act or its own wilful misconduct,
except that:
(i) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred;
(A) the duties and obligations of the Guarantee Trustee
shall be determined solely by the express provisions of this
Guarantee Agreement, and the Guarantee Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this Guarantee
Agreement, and no implied covenants or obligations shall be
read into this Guarantee Agreement against the Guarantee
Trustee; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee 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 Guarantee Trustee and conforming
to the requirements of this Guarantee Agreement; but in the
case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished
to the Guarantee Trustee, the Guarantee Trustee shall be
under a duty to examine the same to determine whether or not
they conform to the requirements of this Guarantee
Agreement;
(ii) the Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the
Guarantee Trustee, unless it shall be proved that the Guarantee
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Guarantee 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 Preferred
Securities as provided herein relating to the time, method and
place of conducting any proceeding for any remedy available to
the Guarantee Trustee, or exercising any trust or power conferred
upon the Guarantee Trustee under this Guarantee Agreement; and
<PAGE>
(iv) no provision of this Guarantee Agreement shall require
the Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance
of its duties or in the exercise of any of its rights or powers,
if it shall have reasonable ground for believing that the
repayment of such funds or liability is not reasonably assured to
it under the terms of this Guarantee Agreement or adequate
indemnity against such risk or liability is not reasonably
assured to it.
(c) Subject to the provisions of Section 3.02(a) and (b):
(i) whenever in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Guarantee Trustee (unless
other evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and rely upon a
certificate, which shall comply with the provisions of
Section 314(e) of the Trust Indenture Act, signed by any
authorized officer of J.P. Morgan;
(ii) the Guarantee Trustee (A) may consult with counsel of
its choice (which may be counsel to J.P. Morgan or any of its
Affiliates and may include any of its employees) selected by it
in good faith and with due care and the written advice or opinion
of such counsel with respect to legal matters 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
reliance thereon and in accordance with such advice and opinion
and (B) shall have the right at any time to seek instructions
concerning the administration of this Guarantee Agreement from
any court of competent jurisdiction;
(iii) the Guarantee 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 Guarantee Trustee
shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed by it in good faith and
with due care;
(iv) the Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Guarantee Agreement at the request or direction of any Holders of
Preferred Securities,
<PAGE>
unless such Holders shall have offered to the Guarantee Trustee
reasonable security and indemnity against the costs, expenses
(including its attorneys' fees and expenses) and liabilities that
might be incurred by it in complying with such request or
direction; provided that nothing contained in this clause (iv)
shall relieve the Guarantee Trustee of the obligation, upon the
occurrence of an Event of Default (which has not been cured or
waived) to exercise such of the rights and powers vested in it by
this Guarantee Agreement, and to use the same degree of care and
skill in this exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs;
and
(v) any action taken by the Guarantee Trustee or its agents
hereunder shall bind the Holders of any affected series of
Preferred Securities and the signature of the Guarantee Trustee
or its agents alone shall be sufficient and effective to perform
any such action; and no third party shall be required to inquire
as to the authority of the Guarantee Trustee to so act, or as to
its compliance with any of the terms and provisions of this
Guarantee Agreement, both of which shall be conclusively
evidenced by the Guarantee Trustee's or its agent's taking such
action.
SECTION 3.03. Not Responsible for Recitals or Issuance of
Guarantee Agreement. The recitals contained in this Guarantee Agreement
shall be taken as the statements of J.P. Morgan and the Guarantee Trustee
does not assume any responsibility for their correctness. The Guarantee
Trustee makes no representations as to the validity or sufficiency of this
Guarantee Agreement.
ARTICLE IV
Guarantee Trustee
SECTION 4.01. Qualifications. (a) There shall at all times be a
Guarantee Trustee which shall:
(i) not be an Affiliate of J.P. Morgan; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or
Person permitted by the Commission to act as an institutional
trustee under the Trust Indenture Act, authorized under such laws
to
<PAGE>
exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000, and 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 supervising or examining authority referred
to above, then for the purposes of this Section 4.01(a)(ii), 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 the Guarantee Trustee shall cease to satisfy the
requirements of clauses (i)-(ii) above, the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section
4.02. If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act,
the Guarantee Trustee and J.P. Morgan shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.02. Appointment, Removal and Resignation of Guarantee
Trustee. (a) Subject to Section 4.02(b), the Guarantee Trustee may be
appointed or removed without cause at any time by J.P. Morgan.
(b) The Guarantee Trustee shall not be removed in accordance
with Section 4.02(a) until a Successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 4.01(a) has been
appointed and has accepted such appointment by written instrument executed
by such Successor Guarantee Trustee and delivered to J.P. Morgan and the
Guarantee Trustee being removed.
(c) The Guarantee Trustee appointed to office shall hold office
until his successor shall have been appointed or until its removal or
resignation.
(d) The Guarantee Trustee may resign from office (without need
for prior or subsequent accounting) by an instrument (a "Resignation
Request") in writing signed by the Guarantee Trustee and delivered to J.P.
Morgan, which resignation shall take effect upon such delivery or upon such
later date as is specified therein; provided, however, that no such
resignation of the Guarantee Trustee shall be effective until a Successor
Guarantee Trustee possessing the qualifications to act as Guarantee Trustee
under Section 4.01(a) has been appointed and has accepted such appointment
by instrument executed by such Successor
<PAGE>
Guarantee Trustee and delivered to J.P. Morgan and the resigning Guarantee
Trustee.
(e) If no Successor Guarantee Trustee shall have been appointed
and accepted appointed as provided in this Section 4.02 within 60 days
after delivery to J.P. Morgan of a Resignation Request, the resigning
Guarantee Trustee may petition any court of competent jurisdiction for
appointment of a Successor Guarantee Trustee. Such court may thereupon
after such notice, if any, as it may deem proper and prescribe, appoint a
Successor Guarantee Trustee.
ARTICLE V
Guarantee
SECTION 5.01. Guarantee. J.P. Morgan irrevocably and
unconditionally agrees, to the extent set forth herein, to pay in full to
the Holders of the Preferred Securities the Guarantee Payments with respect
to the Preferred Securities, as and when due (except to the extent paid by
the Trust), regardless of any defense, right of set-off or counterclaim
which the Trust may have or assert. This Guarantee Agreement is continuing,
irrevocable, unconditional and absolute.
SECTION 5.02. Waiver of Notice. J.P. Morgan hereby waives notice
of acceptance of this Guarantee Agreement and of any liability to which it
applies or may apply, presentment, demand for payment, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices
and demands.
SECTION 5.03. Obligations Not Affected. The obligations,
covenants, agreements and duties of J.P. Morgan under this Guarantee
Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Trust of any express or
implied agreement, covenant, term or condition relating to the
Preferred Securities to be performed or observed by the Trust;
(b) the extension of time for the payment by the Trust of
all or any portion of the distributions, Preferred Redemption
Price, liquidation distributions or any other sums payable under
the terms of the
<PAGE>
Preferred Securities or the extension of time for the performance
of any other obligation under, arising out of, or in connection
with, the Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to
the terms of the Preferred Securities, or any action on the part
of the Trust granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Trust or any of the assets of
the Trust;
(e) any invalidity of, or defect or deficiency in, any of
the Preferred Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstances whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a
guarantor, it being the intent of this Section 5.03 that the
obligations of J.P. Morgan hereunder shall be absolute and
unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
consent of, J.P. Morgan with respect to the happening of any of the
foregoing.
SECTION 5.04. Enforcement of Guarantee Agreement. J.P. Morgan and
the Guarantee Trustee expressly acknowledge that (i) this Guarantee
Agreement will be deposited with the Guarantee Trustee to be held for the
benefit of the Holders; (ii) the Guarantee Trustee has the right to enforce
this Guarantee Agreement on behalf of the Holders; (iii) Holders
representing not less than a majority in Principal Amount of the Preferred
Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available in respect of this
Guarantee Agreement with respect to the Preferred Securities including the
giving of directions to the Guarantee Trustee, or exercising any trust or
other power conferred upon the Guarantee Trustee under this Guarantee
Agreement, and (iv) any Holder of the Preferred Securities may institute a
legal proceeding directly against J.P. Morgan to enforce its rights under
<PAGE>
this Guarantee Agreement, without first instituting a legal proceeding
against the Trust, the Guarantee Trustee, or any other Person.
SECTION 5.05. Guarantee of Payment. This is a guarantee of
payment and not of collection. This Guarantee Agreement will not be
discharged except by payment of the Guarantee Payments in full (without
duplication of amounts theretofore paid by the Trust).
SECTION 5.06. Subrogation. J.P. Morgan shall be subrogated to all
(if any) rights of the Holders against the Trust in respect of any amounts
paid to the Holders by J.P. Morgan under this Guarantee Agreement and the
Trust shall not be required to make payment to the Holders of any amount of
Guarantee Payments in respect of which payment has theretofore been made by
J.P. Morgan pursuant to Section 5.01 hereof; provided, however, that J.P.
Morgan shall not (except to the extent required by mandatory provisions of
law) exercise any rights which it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of a
payment under this Guarantee Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Guarantee Agreement. If
any amount shall be paid to J.P. Morgan in violation of the preceding
sentence, J.P. Morgan agrees to pay over such amount to the Holders for
application to the Guarantee Payments then due hereunder, if any, or to
offset payments due to the Holders by the Trust.
SECTION 5.07. Independent Obligations. J.P. Morgan acknowledges
that its obligations hereunder are independent of the obligations of the
Trust with respect to the Preferred Securities and that J.P. Morgan shall
be liable as principal and sole debtor hereunder to make Guarantee Payments
pursuant to the terms of this Guarantee Agreement notwithstanding the
occurrence of any event referred to in subsections (a) through (g),
inclusive, of Section 5.03 hereof.
ARTICLE VI
Limitation of Transactions; Subordination
SECTION 6.01. Limitation of Transactions. So long as any
Preferred Securities remain outstanding, J.P. Morgan shall: (i) not cause
or permit any Common Securities to be transferred; (ii) maintain 100%
ownership of all outstanding securities of each series of the Trust other
than the Preferred Securities of any series; (iii) not
<PAGE>
voluntarily dissolve, wind up, liquidate or terminate the Trust; (iv) not
incur or permit to exist any indebtedness of the Trust; and (v) not take
any actions inconsistent with the treatment of the Trust as a grantor trust
for United States Federal income tax purposes. So long as any Preferred
Securities remain outstanding, J.P. Morgan will not declare or pay
dividends on, or redeem, purchase, acquire or make a distribution or
liquidation payment with respect to, any of its common stock or preferred
stock or make any Guarantee Payment with respect thereto if at such time
(i) J.P. Morgan shall be in default with respect to its Guarantee Payments
or other payment obligations hereunder or (ii) there shall have occurred
any event of default under the Declaration; provided, however, that the
foregoing restrictions shall not apply to (a) dividends, redemptions,
purchases, acquisitions, distributions or payments made by J.P. Morgan by
way of issuance of shares of its capital stock, (b) payments of accrued
dividends by J.P. Morgan upon the redemption, exchange or conversion of any
preferred stock of J.P. Morgan as may be outstanding from time to time in
accordance with the terms of such preferred stock, (c) cash payments made
by J.P. Morgan in lieu of delivering fractional shares upon the redemption,
exchange or conversion of any preferred stock of J.P. Morgan as may be
outstanding from time to time in accordance with the terms of such
preferred stock, (d) repurchases, redemptions or other acquisitions of
shares of capital stock of J.P. Morgan in connection with any employment
contract, benefit plan or other similar arrangement with or for the benefit
of employees, officers, directors of consultants, or (e) any declaration of
a dividend in connection with the implementation of a stockholders' rights
plan, or the issuance of stock under any such plan in the future, or the
redemption or repurchase of such rights pursuant thereto.
SECTION 6.02. Subordination. This Guarantee Agreement will
constitute an unsecured obligation of J.P. Morgan and will rank
(i) subordinate and junior in right of payment to all other liabilities of
J.P. Morgan, (ii) pari passu with the most senior preferred stock
outstanding as of the date hereof of J.P. Morgan and (iii) senior to J.P.
Morgan's common stock. J.P. Morgan's obligations under this Guarantee
Agreement will rank pari passu with respect to obligations under other
guarantee agreements which it may enter into from time to time to the
extent that such agreements shall be entered into in substantially the form
hereof and provided for comparable guarantees by J.P. Morgan of payment on
other preferred securities issued by the Trust or any similar trust
sponsored by J.P. Morgan.
<PAGE>
ARTICLE VII
Termination
SECTION 7.01. This Guarantee Agreement shall terminate and be of
no further force and effect as to the Preferred Securities upon full
payment of the Preferred Redemption Price of the Preferred Securities, and
shall terminate completely upon full payment of the amounts payable to
Holders upon liquidation of the Trust; provided, however, that this
Guarantee Agreement shall continue to be effective or shall be reinstated,
as the case may be, if at any time any Holder must restore payment of any
sums paid under the Preferred Securities or under this Guarantee Agreement
for any reason whatsoever. J.P. Morgan agrees to indemnify each Holder and
hold it harmless against any loss it may suffer in such circumstances.
ARTICLE VIII
Limitation of Liability; Indemnification
SECTION 8.01. Exculpation. (a) No Indemnified Person shall be
liable, responsible or accountable in damages or otherwise to J.P. Morgan
or any Covered Person for any loss, damage or claim incurred by reason of
any act or omission performed or omitted by such Indemnified Person in good
faith and in a manner such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by
this Guarantee Agreement or by law, except that an Indemnified Person shall
be liable for any such loss, damage or claim incurred by reason of such
Indemnified Person's negligence or wilful misconduct with respect to such
acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of J.P. Morgan and upon such information,
opinions, reports or statements presented to J.P. Morgan by any Person as
to matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of J.P. Morgan, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence
and amounts of assets from which Distributions to Holders of Preferred
Securities might properly be paid.
SECTION 8.02. Indemnification. (a) To the fullest extent
permitted by applicable law, J.P. Morgan
<PAGE>
shall indemnify and hold harmless each Indemnified Person from and against
any loss, damage or claim incurred by such Indemnified Person by reason of
any act or omission performed or omitted by such Indemnified Person in good
faith and in a manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified Person by this
Guarantee Agreement, except that no Indemnified Person shall be entitled to
be indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of negligence or wilful misconduct with
respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by an Indemnified Person in defending any
claim, demand, action, suit or proceeding shall, from time to time, be
advanced by J.P. Morgan prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by J.P. Morgan of an
undertaking by or on behalf of the Indemnified Person to repay such amount
if it shall be determined that the Indemnified Person is not entitled to be
indemnified as authorized in Section 8.02(a).
ARTICLE IX
Miscellaneous
SECTION 9.01. Successors and Assigns. All guarantees and
agreements contained in this Guarantee Agreement shall bind the successors,
assigns, receivers, trustees and representatives of J.P. Morgan and shall
inure to the benefit of the Holders. J.P. Morgan shall not assign its
obligations hereunder without the prior approval of Holders of not less
than a majority in Principal Amount of all Preferred Securities of all
series then outstanding voting as a single class.
SECTION 9.02. Amendments. Except with respect to any changes or
waivers which do not adversely affect the rights of Holders (in which case
no vote will be required), this Guarantee Agreement may only be amended or
waived by instrument in writing signed by J.P. Morgan and the Guarantee
Trustee with the prior approval of the Holders of not less than a majority
in Principal Amount of all Preferred Securities then outstanding. The
provisions of Section 12.02 of the Declaration concerning meetings of
Holders shall apply to the giving of such approval.
SECTION 9.03. Notices. Any notice, request or other communication
required or permitted to be given
<PAGE>
hereunder to J.P. Morgan shall be given in writing by mail or by facsimile
transmission (followed by mail), addressed to J.P. Morgan, as follows:
(a) if given to J.P. Morgan, to the address set
forth below or such other address as J.P. Morgan may
give notice of to the Holders:
J.P. Morgan & Co. Incorporated
60 Wall Street
New York, New York 10260-0060
Facsimile No.: (212) 648-5175
Attention: Assistant Secretary
(b) if given to the Guarantee Trustee, to the address set
forth below or such other address as the Guarantee Trustee may
give notice to the Holders:
First Trust of New York, National Association 100
Wall Street Suite 1600 New York, New York 10005
Facsimile No.: (212) 809-5459 Attention: Corporate
Trust Administration
(c) if given to any Holder of Preferred Securities, at the
address set forth on the books and records of the Trust relating
to such series.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first
class mail, postage prepaid except that if a notice or other document is
refused delivery or cannot be delivered because of a changed address of
which no notice was given, such notice or other document shall be deemed to
have been delivered on the date of such refusal or inability to deliver.
SECTION 9.04. Genders. The masculine, feminine and neuter genders
used herein shall include the masculine, feminine and neuter genders.
SECTION 9.05. Benefit. This Guarantee Agreement is solely for the
benefit of the Holders and, subject to Section 3.01(a), is not separately
transferable from the Preferred Securities.
<PAGE>
SECTION 9.06. Governing Law. THIS GUARANTEE AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS).
SECTION 9.07. Counterparts. This Guarantee Agreement may be
executed in counterparts, each of which shall be an original; but such
counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, this Guarantee Agreement is executed as of
the day and year first above written.
J.P. MORGAN & CO. INCORPORATED,
By _________________________ Name:
Title:
FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION, as Guarantee Trustee,
By _________________________ Name:
Title:
<PAGE>
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this [ ] day of [ ],
199_, personally appeared of J.P. Morgan & Co.
Incorporated, known to me (or proved to me by introduction upon the oath of
a person known to me) to be the person and officer whose name is subscribed
to the foregoing instrument, and acknowledged to me that he/she executed
the same as the act of such trust for the purposes and consideration herein
expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS [ ] DAY OF [ ], 199_.
{SEAL}
--------------------------------
NOTARY PUBLIC, STATE OF NEW YORK
Print Name: ____________________
Commission Expires: ____________
<PAGE>
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this [ ] day of
[ ], 199_ , personally appeared [ ] of First Trust of
New York, National Association, known to me (or proved to me by
introduction upon the oath of a person known to me) to be the person and
officer whose name is subscribed to the foregoing instrument, and
acknowledged to me that he/she executed the same as the act of such trust
for the purposes and consideration herein expressed and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL THIS [ ] DAY OF [ ], 199_.
{SEAL}
--------------------------------
NOTARY PUBLIC, STATE OF NEW YORK
Print Name: ____________________
Commission Expires: ____________
<PAGE>
EXHIBIT 4(b)(2)
[FORM OF] GUARANTEE AGREEMENT
[FORM OF] GUARANTEE AGREEMENT (this
"Guarantee Agreement"), dated as of
[ ], 199[ ], executed and
delivered by J.P. Morgan & Co. Incorporated,
a Delaware corporation ("J.P. Morgan") and
First Trust of New York, National
Association, as the initial Guarantee Trustee
(as defined below) for the benefit of the
Holders (as defined below) from time to time
of the Preferred Securities (as defined
below) of J.P. Morgan Index Funding
Company I, a Delaware statutory business
trust (the "Trust").
WHEREAS, pursuant to an Amended and Restated
Declaration of Trust (as amended from time to time, the
"Declaration") dated as of March 26, 1998 among the trustees of
the Trust, J.P. Morgan, as sponsor (the "Sponsor"), and the
Holders from time to time of undivided beneficial interests in
certain assets of the Trust, the Trust intends to issue and sell
from time to time, in one or more series, up to $650,000,000
aggregate principal amount of its Commodity-Indexed Preferred
Securities (the "Preferred Securities") and related common
securities (the "Common Securities"), in each case representing
undivided beneficial interests in a Related Note (as defined
below) associated with such series and having such rights,
preferences, privileges, limitations and restrictions as are set
forth in a declaration supplement (a "Declaration Supplement") by
the Sponsor in the form of Exhibit B to the Declaration providing
for the issue of such series;
WHEREAS, the Trust, on behalf of each Series of
Securities (as defined below), will purchase Related Notes (as
defined below) from Morgan Guaranty Trust Company of New York, a
trust company with full banking powers organized under the laws
of the State of New York ("Morgan Guaranty"), with the proceeds
from the issuance and sale of each series of Preferred Securities
and related Common Securities; and
WHEREAS, J.P. Morgan desires hereby to irrevocably and
unconditionally agree to the extent set forth herein to pay to
the Holders the Guarantee Payments (as defined below) and to make
certain other payments on the terms and conditions set forth
herein.
<PAGE>
NOW, THEREFORE, in consideration of the purchase by
each Holder of the Preferred Securities, which purchase J.P.
Morgan hereby agrees shall benefit J.P. Morgan and which purchase
J.P. Morgan acknowledges will be made in reliance upon the
execution and delivery of this guarantee, J.P. Morgan executes
and delivers this Guarantee Agreement for the benefit of the
Holders.
ARTICLE I
Definitions
(a) Capitalized terms used in this Guarantee Agreement
but not defined in the preamble above have the respective
meanings assigned to them in this Article I.
(b) A term defined anywhere in this Guarantee Agreement
has the same meaning throughout.
(c) All references to "the Guarantee Agreement" or
"this Guarantee Agreement" are to this Guarantee Agreement as
modified, supplemented or amended from time to time.
(d) All references in this Guarantee Agreement to
Articles and Sections are to Articles and Sections of this
Guarantee Agreement unless otherwise specified.
(e) A term defined in the Trust Indenture Act has the
same meaning when used in this Guarantee Agreement unless
otherwise defined in this Guarantee Agreement or unless the
context otherwise requires.
(f) A reference to the singular includes the plural and
vice versa.
"Affiliate" has the same meaning as given to that term
in Rule 405 of the Securities Act of 1933, as amended, or any
successor rule thereunder.
"Commission" means the Securities and Exchange
Commission.
"Common Securities" means, with respect to a Series of
Securities, the securities representing undivided beneficial
interests in a Related Note associated with such Series of
Securities and held by the Property Trustee for the benefit of
the Holders of such Series of Securities, and
<PAGE>
having the terms set forth in a Declaration Supplement in the
form of Exhibit B to the Declaration.
"Covered Person" means any Holder of Preferred
Securities.
"Distributions" means the periodic distributions and
other payments payable to Holders of Preferred Securities in
accordance with the terms of the Preferred Securities set forth
in a Declaration Supplement in the form of Exhibit B to the
Declaration.
"Event of Default" means a default by J.P. Morgan on
any of its payment or other obligations under this Guarantee
Agreement.
"Guarantee Payments" means, with respect to Preferred
Securities of any series, the following payments, without
duplication, to the extent not paid by the Trust: (i) any
accumulated and unpaid distributions which have been theretofore
declared on the Preferred Securities of such series, to the
extent Morgan Guaranty has made a corresponding payment on the
relevant Related Note, out of funds legally available therefor,
(ii) the Preferred Redemption Price (including all accumulated
and unpaid distributions), to the extent Morgan Guaranty has made
a corresponding payment on the relevant Related Note, payable out
of funds legally available therefor with respect to any Preferred
Securities of such series called for redemption upon redemption
thereof and (iii) upon the liquidation of the Trust, the lesser
of (a) the Liquidation Distribution (as defined below) with
respect to such series and (b) the amount of the assets of the
Trust consisting of the relevant Related Note and the proceeds
thereof, legally available for distribution to Holders of
Preferred Securities of such series in liquidation.
"Guarantee Trustee" means First Trust of New York,
National Association until a Successor Guarantee Trustee has been
appointed and accepted such appointment pursuant to the terms of
this Guarantee Agreement and thereafter means each such Successor
Guarantee Trustee.
"Holder" means any Person from time to time holding any
Preferred Securities of any series; provided, however, that in
determining whether the Holders of the requisite percentage of
Preferred Securities have given any request, notice, consent or
waiver hereunder, "Holder" shall not include J.P. Morgan or any
entity directly or indirectly
<PAGE>
controlling or controlled by or under direct or indirect common
control with J.P. Morgan.
"Indemnified Person" means the Guarantee Trustee, any
Affiliate of the Guarantee Trustee, and any officers, directors,
shareholders, members, partners, employees, representatives or
agents of the Guarantee Trustee.
"Liquidation Distribution" means, with respect to
Preferred Securities of any series, the aggregate Principal
Amount of Preferred Securities of such series and all accumulated
and unpaid distributions (whether or not declared) with respect
to such Preferred Securities to but excluding the date of
payment.
"Person" means a legal person, including any
individual, corporation, estate, partnership, joint venture,
association, joint stock company, limited liability company,
trust, unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
"Preferred Redemption Price" means, with respect to
Preferred Securities of any series, the aggregate Principal
Amount of all Preferred Securities of such series plus
accumulated and unpaid distributions (whether or not declared)
with respect to such series to but excluding the date of
redemption.
"Preferred Securities" has the meaning set forth in the
first WHEREAS clause above.
"Principal Amount" means, at any time with respect to
any Preferred Security of any series, the Redemption Value, the
applicable Early Redemption Value or the stated liquidation
preference thereof, as applicable, as determined in accordance
with the Declaration Supplement creating such Preferred
Securities.
"Property Trustee" means the Person acting as Property
Trustee under the Declaration.
"Related Note" means any obligation or obligations of
Morgan Guaranty in which the proceeds from the issuance of
Preferred Securities of any series and related Common Securities
of such series are invested.
"Responsible Officer" means, with respect to the
Guarantee Trustee, the chairman of the board of directors, the
president, any vice-president, any assistant vice-
<PAGE>
president, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, any trust officer or assistant trust
officer or any other officer of the Guarantee Trustee customarily
performing functions similar to those performed by any of the
above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such
matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"Series of Securities" means any series of Preferred
Securities and related Common Securities issued under the
Declaration or a Declaration Supplement.
"Successor Guarantee Trustee" means a successor
Guarantee Trustee possessing the qualifications to act as a
Guarantee Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended.
ARTICLE II
Trust Indenture Act
SECTION 2.01. Trust Indenture Act; Application. (a)
This Guarantee Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this
Guarantee Agreement and shall, to the extent applicable, be
governed by such provisions.
(b) If and to the extent that any provision of this
Guarantee Agreement limits, qualifies or conflicts with the
duties imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
(c) The application of the Trust Indenture Act to this
Guarantee Agreement shall not affect the nature of the Preferred
Securities as equity securities representing undivided beneficial
interests in the relevant Related Note held by the Trust.
SECTION 2.02. Lists of Holders of Preferred Securities.
(a) J.P. Morgan shall provide the Guarantee Trustee with such
information as is required under Section 312(a) of the Trust
Indenture Act at the times and in the manner provided in
Section 312(a).
<PAGE>
(b) The Guarantee Trustee shall comply with its
obligations under Sections 310(b), 311 and 312(b) of the Trust
Indenture Act.
SECTION 2.03. Reports by the Guarantee Trustee. Within
60 days after May 15 of each year, the Guarantee Trustee shall
provide to the Holders of the Preferred Securities such reports
as are required by Section 313 of the Trust Indenture Act, if
any, in the form, in the manner and at the times provided by
Section 313 of the Trust Indenture Act. The Guarantee Trustee
shall also comply with the requirements of Section 313(d) of the
Trust Indenture Act.
SECTION 2.04. Periodic Reports to the Guarantee
Trustee. J.P. Morgan shall provide to the Guarantee Trustee, the
Commission and the Holders of the Preferred Securities, as
applicable, such documents, reports and information as required
by Section 314(a)(1)-(3) (if any) of the Trust Indenture Act and
the compliance certificates required by Section 314(a)(4) and (c)
of the Trust Indenture Act, any such certificates to be provided
in the form, in the manner and at the times required by
Section 314(a)(4) and (c) of the Trust Indenture Act (provided
that any certificate to be provided pursuant to Section 314(a)(4)
of the Trust Indenture Act shall be provided within 120 days of
the end of each fiscal year of the Trust).
SECTION 2.05. Evidence of Compliance with Conditions
Precedent. J.P. Morgan shall provide the Guarantee Trustee such
evidence of compliance with any conditions precedent, if any,
provided for in this Guarantee Agreement which relate to any of
the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given pursuant to
Section 314(c) shall comply with Section 314(e) of the Trust
Indenture Act.
SECTION 2.06. Events of Default; Waiver. (a) Subject
to Section 2.06(b), Holders of Preferred Securities of any series
may by vote of at least a majority in Principal Amount of the
Preferred Securities of such series, (A) direct the time, method
and place of conducting any proceeding for any remedy available
to the Guarantee Trustee, or exercising any trust or power
conferred upon by the Guarantee Trustee, in either case with
respect to such series or (B) on behalf of the Holders of all
Preferred Securities of such series waive any past Event of
Default with respect to such series and its consequences. Upon
such waiver, any such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been
<PAGE>
cured, for every purpose of this Guarantee Agreement, but no such
waiver shall extend to any subsequent or other default or Event
of Default (with respect to such series or any other series) or
impair any right consequent thereon.
(b) The right of any Holder of Preferred Securities to
receive payment of the Guarantee Payments in accordance with this
Guarantee Agreement, or to institute suit for the enforcement of
any such payment, shall not be impaired without the consent of
each such Holder.
SECTION 2.07. Disclosure of Information. The disclosure
of information as to the names and addresses of the Holders of
the Preferred Securities in accordance with Section 312 of the
Trust Indenture Act, regardless of the source from which such
information was derived, shall not be deemed to be a violation of
any existing law, or any law hereafter enacted which does not
specifically refer to Section 312 of the Trust Indenture Act, nor
shall the Guarantee Trustee be held accountable by reason of
mailing any material pursuant to a request made under
Section 312(b) of the Trust Indenture Act.
SECTION 2.08. Conflicting Interest. The Declaration
shall be deemed to be specifically described in this Guarantee
Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
Powers, Duties and Rights of Guarantee Trustee
SECTION 3.01. Powers and Duties of the Guarantee
Trustee. (a) This Guarantee Agreement shall be held by the
Guarantee Trustee in trust for the benefit of the Holders of the
Preferred Securities. The Guarantee Trustee shall not transfer
its right, title and interest in this Guarantee Agreement to any
Person except a Successor Guarantee Trustee on acceptance by such
Successor Guarantee Trustee of its appointment to act as
Guarantee Trustee or to a Holder of Preferred Securities
exercising his or her rights pursuant to Section 5.04. The right,
title and interest of the Guarantee Trustee to this Guarantee
Agreement shall vest automatically in each Person who may
hereafter be appointed as Guarantee Trustee in accordance with
Article IV. Such vesting and cessation of title shall be
effective whether or not conveyancing documents have been
executed and delivered.
<PAGE>
(b) If an Event of Default with respect to Preferred
Securities of any series occurs and is continuing, the Guarantee
Trustee shall enforce this Guarantee Agreement for the benefit of
the Holders of such Preferred Securities.
(c) This Guarantee Agreement and all moneys received
by the Property Trustee hereunder in respect of the Guarantee
Payments will not be subject to any right, charge, security
interest, lien or claim of any kind in favor of, or for the
benefit of the Guarantee Trustee or its agents or their
creditors.
(d) The Guarantee Trustee shall, within 30 days after
the occurrence of an Event of Default with respect to Preferred
Securities of any series, transmit by mail, first class postage
prepaid, to the holders of such Preferred Securities, as their
names and addresses appear upon the register, notice of all
Events of Default known to the Guarantee Trustee, unless such
defaults shall have been cured before the giving of such notice;
provided, that, the Guarantee 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 Guarantee Trustee in good faith
determine that the withholding of such notice is in the interests
of the Holders of such Preferred Securities. The Guarantee
Trustee shall not be deemed to have knowledge of any default
except any default as to which the Guarantee Trustee shall have
received written notice or a Responsible Officer charged with the
administration of the Guarantee Agreement shall have obtained
written notice.
(e) The Guarantee Trustee shall not resign as a
Trustee unless a Successor Guarantee Trustee has been appointed
and accepted that appointment in accordance with Article IV.
SECTION 3.02. Certain Rights and Duties of the
Guarantee Trustee. (a) The Guarantee Trustee, before the
occurrence of an Event of Default and after the curing of all
Events of Default that may have occurred, shall undertake to
perform only such duties as are specifically set forth in this
Guarantee Agreement, and no implied covenants shall be read into
this Guarantee Agreement against the Guarantee Trustee. In case
an Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.06(a)), the Guarantee Trustee shall
exercise such of the rights and powers vested in it by this
Guarantee Agreement, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use
<PAGE>
under the circumstances in this conduct of his or her own
affairs.
(b) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for its
own negligent action, its own negligent failure to act or its own
wilful misconduct, except that:
(i) prior to the occurrence of an Event of Default and
after the curing or waiving of all such Events of Default
that may have occurred;
(A) the duties and obligations of the Guarantee
Trustee shall be determined solely by the express
provisions of this Guarantee Agreement, and the
Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are
specifically set forth in this Guarantee Agreement, and
no implied covenants or obligations shall be read into
this Guarantee Agreement against the Guarantee Trustee;
and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee 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
Guarantee Trustee and conforming to the requirements of
this Guarantee Agreement; but in the case of any such
certificates or opinions that by any provision hereof
are specifically required to be furnished to the
Guarantee Trustee, the Guarantee Trustee shall be under
a duty to examine the same to determine whether or not
they conform to the requirements of this Guarantee
Agreement;
(ii) the Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer of the Guarantee Trustee, unless it shall be proved
that the Guarantee Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Guarantee 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 Preferred Securities as provided herein relating to the
time, method and place of conducting any proceeding for any
remedy available to the Guarantee Trustee, or exercising any
trust or power
<PAGE>
conferred upon the Guarantee Trustee under this Guarantee
Agreement; and
(iv) no provision of this Guarantee Agreement shall
require the Guarantee Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the
performance of its duties or in the exercise of any of its
rights or powers, if it shall have reasonable ground for
believing that the repayment of such funds or liability is
not reasonably assured to it under the terms of this
Guarantee Agreement or adequate indemnity against such risk
or liability is not reasonably assured to it.
(c) Subject to the provisions of Section 3.02(a) and
(b):
(i) whenever in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable
that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Guarantee
Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part,
request and rely upon a certificate, which shall comply with
the provisions of Section 314(e) of the Trust Indenture Act,
signed by any authorized officer of J.P. Morgan;
(ii) the Guarantee Trustee (A) may consult with counsel
of its choice (which may be counsel to J.P. Morgan or any of
its Affiliates and may include any of its employees)
selected by it in good faith and with due care and the
written advice or opinion of such counsel with respect to
legal matters 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 reliance
thereon and in accordance with such advice and opinion and
(B) shall have the right at any time to seek instructions
concerning the administration of this Guarantee Agreement
from any court of competent jurisdiction;
(iii) the Guarantee 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
Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or
attorney appointed by it in good faith and with due care;
<PAGE>
(iv) the Guarantee Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this
Guarantee Agreement at the request or direction of any
Holders of Preferred Securities, unless such Holders shall
have offered to the Guarantee Trustee reasonable security
and indemnity against the costs, expenses (including its
attorneys' fees and expenses) and liabilities that might be
incurred by it in complying with such request or direction;
provided that nothing contained in this clause (iv) shall
relieve the Guarantee Trustee of the obligation, upon the
occurrence of an Event of Default (which has not been cured
or waived) to exercise such of the rights and powers vested
in it by this Guarantee Agreement, and to use the same
degree of care and skill in this exercise, as a prudent
person would exercise or use under the circumstances in the
conduct of his or her own affairs; and
(v) any action taken by the Guarantee Trustee or its
agents hereunder shall bind the Holders of any affected
series of Preferred Securities and the signature of the
Guarantee Trustee or its agents alone shall be sufficient
and effective to perform any such action; and no third party
shall be required to inquire as to the authority of the
Guarantee Trustee to so act, or as to its compliance with
any of the terms and provisions of this Guarantee Agreement,
both of which shall be conclusively evidenced by the
Guarantee Trustee's or its agent's taking such action.
SECTION 3.03. Not Responsible for Recitals or Issuance
of Guarantee Agreement. The recitals contained in this Guarantee
Agreement shall be taken as the statements of J.P. Morgan and the
Guarantee Trustee does not assume any responsibility for their
correctness. The Guarantee Trustee makes no representations as to
the validity or sufficiency of this Guarantee Agreement.
ARTICLE IV
Guarantee Trustee
SECTION 4.01. Qualifications. (a) There shall at all
times be a Guarantee Trustee which shall:
(i) not be an Affiliate of J.P. Morgan; and
<PAGE>
(ii) be a corporation organized and doing business
under the laws of the United States of America or any State
or Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Commission to act as
an institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least
$50,000,000, and 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 supervising or examining authority
referred to above, then for the purposes of this
Section 4.01(a)(ii), 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 the Guarantee Trustee shall cease to
satisfy the requirements of clauses (i)-(ii) above, the Guarantee
Trustee shall immediately resign in the manner and with the
effect set out in Section 4.02. If the Guarantee Trustee has or
shall acquire any "conflicting interest" within the meaning of
Section 310(b) of the Trust Indenture Act, the Guarantee Trustee
and J.P. Morgan shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
SECTION 4.02. Appointment, Removal and Resignation of
Guarantee Trustee. (a) Subject to Section 4.02(b), the Guarantee
Trustee may be appointed or removed without cause at any time by
J.P. Morgan.
(b) The Guarantee Trustee shall not be removed in
accordance with Section 4.02(a) until a Successor Guarantee
Trustee possessing the qualifications to act as Guarantee Trustee
under Section 4.01(a) has been appointed and has accepted such
appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to J.P. Morgan and the Guarantee
Trustee being removed.
(c) The Guarantee Trustee appointed to office shall
hold office until his successor shall have been appointed or
until its removal or resignation.
(d) The Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an
instrument (a "Resignation Request") in writing signed by the
Guarantee Trustee and delivered to J.P. Morgan, which
<PAGE>
resignation shall take effect upon such delivery or upon such
later date as is specified therein; provided, however, that no
such resignation of the Guarantee Trustee shall be effective
until a Successor Guarantee Trustee possessing the qualifications
to act as Guarantee Trustee under Section 4.01(a) has been
appointed and has accepted such appointment by instrument
executed by such Successor Guarantee Trustee and delivered to
J.P. Morgan and the resigning Guarantee Trustee.
(e) If no Successor Guarantee Trustee shall have been
appointed and accepted appointed as provided in this Section 4.02
within 60 days after delivery to J.P. Morgan of a Resignation
Request, the resigning Guarantee Trustee may petition any court
of competent jurisdiction for appointment of a Successor
Guarantee Trustee. Such court may thereupon after such notice, if
any, as it may deem proper and prescribe, appoint a Successor
Guarantee Trustee.
ARTICLE V
Guarantee
SECTION 5.01. Guarantee. J.P. Morgan irrevocably and
unconditionally agrees, to the extent set forth herein, to pay in
full to the Holders of Preferred Securities of each series the
Guarantee Payments with respect to such Preferred Securities, as
and when due (except to the extent paid by the Trust), regardless
of any defense, right of set- off or counterclaim which the Trust
may have or assert. This Guarantee Agreement is continuing,
irrevocable, unconditional and absolute.
SECTION 5.02. Waiver of Notice. J.P. Morgan hereby
waives notice of acceptance of this Guarantee Agreement and of
any liability to which it applies or may apply, presentment,
demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 5.03. Obligations Not Affected. The
obligations, covenants, agreements and duties of J.P. Morgan
under this Guarantee Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of
the following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the
<PAGE>
Trust of any express or implied agreement, covenant, term or
condition relating to the Preferred Securities of any series
to be performed or observed by the Trust;
(b) the extension of time for the payment by the Trust
of all or any portion of the distributions, Preferred
Redemption Price, liquidation distributions or any other
sums payable under the terms of the Preferred Securities of
any series or the extension of time for the performance of
any other obligation under, arising out of, or in connection
with, the Preferred Securities of any series;
(c) any failure, omission, delay or lack of diligence
on the part of the Holders to enforce, assert or exercise
any right, privilege, power or remedy conferred on the
Holders pursuant to the terms of the Preferred Securities of
any series, or any action on the part of the Trust granting
indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership,
insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings
affecting, the Trust or any of the assets of the Trust;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities of any series;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstances whatsoever that might
otherwise constitute a legal or equitable discharge or
defense of a guarantor, it being the intent of this
Section 5.03 that the obligations of J.P. Morgan hereunder
shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, J.P. Morgan with respect to the happening of
any of the foregoing.
SECTION 5.04. Enforcement of Guarantee Agreement. J.P.
Morgan and the Guarantee Trustee expressly acknowledge that
(i) this Guarantee Agreement will be deposited with the Guarantee
Trustee to be held for the benefit of the Holders; (ii) the
Guarantee Trustee has the right to enforce this
<PAGE>
Guarantee Agreement on behalf of the Holders; (iii) Holders
representing not less than a majority in Principal Amount of the
Preferred Securities of any series have the right to direct the
time, method and place of conducting any proceeding for any
remedy available in respect of this Guarantee Agreement with
respect to such Preferred Securities including the giving of
directions to the Guarantee Trustee, or exercising any trust or
other power conferred upon the Guarantee Trustee under this
Guarantee Agreement, and (iv) any Holder of Preferred Securities
of any series may institute a legal proceeding directly against
J.P. Morgan to enforce its rights under this Guarantee Agreement,
without first instituting a legal proceeding against the Trust,
the Guarantee Trustee, or any other Person.
SECTION 5.05. Guarantee of Payment. This is a guarantee
of payment and not merely of collection. This Guarantee Agreement
will not be discharged except by payment of the Guarantee
Payments in full (without duplication of amounts theretofore paid
by the Trust).
SECTION 5.06. Subrogation. J.P. Morgan shall be
subrogated to all (if any) rights of the Holders against the
Trust in respect of any amounts paid to the Holders by J.P.
Morgan under this Guarantee Agreement and the Trust shall not be
required to make payment to the Holders of any amount of
Guarantee Payments in respect of which payment has theretofore
been made by J.P. Morgan pursuant to Section 5.01 hereof;
provided, however, that J.P. Morgan shall not (except to the
extent required by mandatory provisions of law) exercise any
rights which it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a
result of a payment under this Guarantee Agreement, if, at the
time of any such payment, any amounts are due and unpaid under
this Guarantee Agreement. If any amount shall be paid to J.P.
Morgan in violation of the preceding sentence, J.P. Morgan agrees
to pay over such amount to the Holders for application to the
Guarantee Payments then due hereunder, if any, or to offset
payments due to the Holders by the Trust.
SECTION 5.07. Independent Obligations. J.P. Morgan
acknowledges that its obligations hereunder are independent of
the obligations of the Trust with respect to the Preferred
Securities and that J.P. Morgan shall be liable as principal and
sole debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee Agreement notwithstanding the occurrence
of any event
<PAGE>
referred to in subsections (a) through (g), inclusive, of Section
5.03 hereof.
ARTICLE VI
Limitation of Transactions; Subordination
SECTION 6.01. Limitation of Transactions. So long as
any Preferred Securities of any series remain outstanding, J.P.
Morgan shall: (i) not cause or permit any Common Securities to be
transferred; (ii) maintain 100% ownership of all outstanding
securities of each series of the Trust other than the Preferred
Securities of any series; (iii) not voluntarily dissolve, wind
up, liquidate or terminate the Trust; (iv) not incur or permit to
exist any indebtedness of the Trust; and (v) not take any actions
inconsistent with the treatment of the Trust as a grantor trust
for United States Federal income tax purposes. So long as any
Preferred Securities remain outstanding, J.P. Morgan will not
declare or pay dividends on, or redeem, purchase, acquire or make
a distribution or liquidation payment with respect to, any of its
common stock or preferred stock or make any Guarantee Payment
with respect thereto if at such time (i) J.P. Morgan shall be in
default with respect to its Guarantee Payments or other payment
obligations hereunder or (ii) there shall have occurred any event
of default under the Declaration; provided, however, that the
foregoing restrictions shall not apply to (a) dividends,
redemptions, purchases, acquisitions, distributions or payments
made by J.P. Morgan by way of issuance of shares of its capital
stock, (b) payments of accrued dividends by J.P. Morgan upon the
redemption, exchange or conversion of any preferred stock of J.P.
Morgan as may be outstanding from time to time in accordance with
the terms of such preferred stock, (c) cash payments made by J.P.
Morgan in lieu of delivering fractional shares upon the
redemption, exchange or conversion of any preferred stock of J.P.
Morgan as may be outstanding from time to time in accordance with
the terms of such preferred stock, (d) repurchases, redemptions
or other acquisitions of shares of capital stock of J.P. Morgan
in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of employees,
officers, directors of consultants, or (e) any declaration of a
dividend in connection with the implementation of a stockholders'
rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of such rights pursuant
thereto.
<PAGE>
SECTION 6.02. Subordination. This Guarantee Agreement
will constitute an unsecured obligation of J.P. Morgan and will
rank (i) subordinate and junior in right of payment to all other
liabilities of J.P. Morgan, (ii) pari passu with the most senior
preferred stock outstanding as of the date hereof of J.P. Morgan
and (iii) senior to J.P. Morgan's common stock. J.P. Morgan's
obligations under this Guarantee Agreement will rank pari passu
with respect to obligations under other guarantee agreements
which it may enter into from time to time to the extent that such
agreements shall be entered into in substantially the form hereof
and provided for comparable guarantees by J.P. Morgan of payment
on other preferred securities issued by the Trust or any similar
trust sponsored by J.P. Morgan.
ARTICLE VII
Termination
SECTION 7.01. This Guarantee Agreement shall terminate
and be of no further force and effect as to Preferred Securities
of any series upon full payment of the Preferred Redemption Price
of such series, and shall terminate completely upon full payment
of the amounts payable to Holders upon liquidation of the Trust;
provided, however, that this Guarantee Agreement shall continue
to be effective or shall be reinstated, as the case may be, if at
any time any Holder must restore payment of any sums paid under
the Preferred Securities of such series or under this Guarantee
Agreement for any reason whatsoever. J.P. Morgan agrees to
indemnify each Holder and hold it harmless against any loss it
may suffer in such circumstances.
ARTICLE VIII
Limitation of Liability; Indemnification
SECTION 8.01. Exculpation. (a) No Indemnified Person
shall be liable, responsible or accountable in damages or
otherwise to J.P. Morgan or any Covered Person for any loss,
damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith and
in a manner such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified
Person by this Guarantee Agreement or by law, except that an
Indemnified Person shall be liable for any such loss, damage or
claim incurred by
<PAGE>
reason of such Indemnified Person's negligence or wilful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of J.P. Morgan and upon
such information, opinions, reports or statements presented to
J.P. Morgan by any Person as to matters the Indemnified Person
reasonably believes are within such other Person's professional
or expert competence and who has been selected with reasonable
care by or on behalf of J.P. Morgan, including information,
opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amounts of assets from which
Distributions to Holders of Preferred Securities might properly
be paid.
SECTION 8.02. Indemnification. (a) To the fullest
extent permitted by applicable law, J.P. Morgan shall indemnify
and hold harmless each Indemnified Person from and against any
loss, damage or claim incurred by such Indemnified Person by
reason of any act or omission performed or omitted by such
Indemnified Person in good faith and in a manner such Indemnified
Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by this Guarantee Agreement,
except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by
such Indemnified Person by reason of negligence or wilful
misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law,
expenses (including legal fees) incurred by an Indemnified Person
in defending any claim, demand, action, suit or proceeding shall,
from time to time, be advanced by J.P. Morgan prior to the final
disposition of such claim, demand, action, suit or proceeding
upon receipt by J.P. Morgan of an undertaking by or on behalf of
the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be
indemnified as authorized in Section 8.02(a).
ARTICLE IX
Miscellaneous
SECTION 9.01. Successors and Assigns. All guarantees
and agreements contained in this Guarantee
<PAGE>
Agreement shall bind the successors, assigns, receivers, trustees
and representatives of J.P. Morgan and shall inure to the benefit
of the Holders of the Preferred Securities then outstanding. J.P.
Morgan shall not assign its obligations hereunder without the
prior approval of Holders of not less than a majority in
Principal Amount of all Preferred Securities of all series then
outstanding voting as a single class.
SECTION 9.02. Amendments. Except with respect to any
changes or waivers which do not adversely affect the rights of
Holders (in which case no vote will be required), this Guarantee
Agreement may only be amended or waived by instrument in writing
signed by J.P. Morgan and the Guarantee Trustee with the prior
approval of the Holders of not less than a majority in Principal
Amount of all Preferred Securities of each affected series then
outstanding voting as a single class. The provisions of
Section 12.02 of the Declaration concerning meetings of Holders
shall apply to the giving of such approval.
SECTION 9.03. Notices. Any notice, request or other
communication required or permitted to be given hereunder to J.P.
Morgan shall be given in writing by mail or by facsimile
transmission (followed by mail), addressed to J.P. Morgan, as
follows:
(a) if given to J.P. Morgan, to the address set forth
below or such other address as J.P. Morgan may give notice
of to the Holders:
J.P. Morgan & Co. Incorporated
60 Wall Street
New York, New York 10260-0060
Facsimile No.: (212) 648-5175
Attention: Assistant Secretary
<PAGE>
(b) if given to the Guarantee Trustee, to the address
set forth below or such other address as the Guarantee
Trustee may give notice to the Holders:
First Trust of New York, National Association
100 Wall Street
Suite 1600
New York, New York 10005
Facsimile No.: (212) 809-5459
Attention: Corporate Trust Administration
(c) if given to any Holder of Preferred Securities of
any series, at the address set forth on the books and
records of the Trust relating to such series.
All notices hereunder shall be deemed to have been
given when received in person, telecopied with receipt confirmed,
or mailed by first class mail, postage prepaid except that if a
notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
SECTION 9.04. Genders. The masculine, feminine and
neuter genders used herein shall include the masculine, feminine
and neuter genders.
SECTION 9.05. Benefit. This Guarantee Agreement is
solely for the benefit of the Holders and, subject to
Section 3.01(a), is not separately transferable from the
Preferred Securities.
<PAGE>
SECTION 9.06. Governing Law. THIS GUARANTEE AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS).
SECTION 9.07. Counterparts. This Guarantee Agreement
may be executed in counterparts, each of which shall be an
original; but such counterparts shall together constitute one and
the same instrument.
[SECTION 9.08. Exercise of Overallotment Option. If and
to the extent that any Preferred Securities are issued by the
Trust upon exercise of the overallotment option referred to the
third WHEREAS clause, J.P. Morgan agrees to give prompt notice
thereof to the Guarantee Trustee but the failure to give such
notice shall not relieve J.P. Morgan of any of its obligations
hereunder.]
IN WITNESS WHEREOF, this Guarantee Agreement is
executed as of the day and year first above written.
J.P. MORGAN & CO.
INCORPORATED,
By_________________________
Name:
Title:
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION, as
Guarantee Trustee,
By_________________________
Name:
Title:
<PAGE>
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this [ ] day
of [ ], 199_, personally appeared of J.P. Morgan
& Co. Incorporated, known to me (or proved to me by introduction
upon the oath of a person known to me) to be the person and
officer whose name is subscribed to the foregoing instrument, and
acknowledged to me that he/she executed the same as the act of
such trust for the purposes and consideration herein expressed
and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS DAY OF
[ ], 199_.
{SEAL}
--------------------------------
NOTARY PUBLIC, STATE OF NEW YORK
Print Name: ____________________
Commission Expires: ____________
<PAGE>
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this [ ] day
of [ ], 199_ , personally appeared [ ] of First
Trust of New York, National Association, known to me (or proved
to me by introduction upon the oath of a person known to me) to
be the person and officer whose name is subscribed to the
foregoing instrument, and acknowledged to me that he/she executed
the same as the act of such trust for the purposes and
consideration herein expressed and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL THIS 31st DAY OF
[ ], 199_.
{SEAL}
--------------------------------
NOTARY PUBLIC, STATE OF NEW YORK
Print Name: ____________________
Commission Expires: ____________
<PAGE>
EXHIBIT 4(c)
[FORM OF] RELATED NOTE GUARANTEE
AGREEMENT (the "Related Note Guarantee"),
dated as of , 199[ ], executed and delivered
by J.P. MORGAN & CO. INCORPORATED, a Delaware
corporation ("J.P. Morgan"), for the benefit
of FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION, as Property Trustee (the
"Property Trustee") of J.P. MORGAN INDEX
FUNDING COMPANY I, a Delaware statutory
business trust (the "Trust") and as the
holder from time to time of the Related Notes
(as defined below).
WHEREAS, the Trust intends to issue from time to time,
in one or more series, its common trust securities (the "Common
Securities") to and receive related capital contributions from
J.P. Morgan, and to issue and sell from time to time, in one or
more series, related preferred trust securities (the "Preferred
Securities") with such rights, preferences, privileges,
limitations and restrictions as are set forth in a declaration
supplement or supplements (each, a "Declaration Supplement") to
the Declaration (as defined below) providing for the issuance of
such series;
WHEREAS, the Trust, on behalf of the holders from time
to time of each series of Preferred Securities and related Common
Securities, will purchase from Morgan Guaranty Trust Company of
New York, a trust company with full banking powers organized
under the laws of the State of New York and a wholly-owned
subsidiary of J.P. Morgan ("Morgan Guaranty"), one or more
related notes (the "Related Notes") with the proceeds from the
issuance and sale of each series of Preferred Securities and
related Common Securities, the distribution and principal
repayment terms of which Related Note shall mirror the related
series of securities; and
WHEREAS, J.P. Morgan desires hereby to irrevocably and
unconditionally agree to the extent set forth herein to pay to
the Property Trustee the Related Note Guarantee Payments (as
defined below) and to make certain other payments on the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by the
Trust of the Related Notes, which purchase J.P. Morgan hereby
agrees shall benefit J.P. Morgan and which purchase J.P. Morgan
acknowledges will be made in reliance upon the execution and
delivery of this Related Note Guarantee, J.P. Morgan executes and
delivers this Related Note Guarantee for the benefit of the
Property Trustee for
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the benefit of the holders from time to time of the Preferred
Securities and the related Common Securities.
ARTICLE I
As used in this Related Note Guarantee, the terms
set forth below shall have the following meanings:
"Related Note Guarantee Payments" shall mean, with
respect to any Related Note, the following payments, without
duplication, to the extent not paid by Morgan Guaranty: (i) any
accrued and unpaid interest on such Related Note and (ii) the
Related Note Redemption Price (including all accrued and unpaid
interest) payable with respect to such Related Note to be
redeemed, in whole or in part, upon redemption thereof.
"Declaration" shall mean the Trust's Amended and
Restated Declaration of Trust dated as of March 26, 1998, among
the Sponsor, the Regular Trustees, the Property Trustee, the
Delaware Trustee (each as defined therein) and the holders from
time to time of securities of the Trust, as amended from time to
time.
"Principal Amount" shall mean, at any time with respect
to any Preferred Security of any series and, if applicable, the
related Common Securities, the Redemption Value, the applicable
Early Redemption Value or stated liquidation preference thereof,
as applicable, determined in accordance with the Declaration
Supplement creating such series of Preferred Securities.
"Related Note Redemption Price" shall mean, with
respect to any Related Note at any time, an amount equal to the
aggregate Principal Amount of all Preferred Securities of the
related series and related Common Securities to be redeemed at
such time, plus accrued and unpaid interest with respect to such
Related Note to but excluding the date of redemption.
ARTICLE II
SECTION 2.01. J.P. Morgan irrevocably and
unconditionally agrees, to the extent set forth herein, to pay in
full, to the Property Trustee, for the benefit of the holders
from time to time of the Preferred Securities and related Common
Securities associated with any Related Note, the Related Note
Guarantee Payments with respect to such Related Note, as and when
due (except to the extent paid by
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Morgan Guaranty), regardless of any defense, right of set- off or
counterclaim which the Morgan Guaranty may have or assert. This
Related Note Guarantee is continuing, irrevocable, unconditional
and absolute.
SECTION 2.02. J.P. Morgan hereby waives notice of
acceptance of this Related Note Guarantee and of any liability to
which it applies or may apply, presentment, demand for payment,
protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 2.03. The obligations, covenants, agreements
and duties of J.P. Morgan under this Related Note Guarantee shall
in no way be affected or impaired by reason of the happening from
time to time of any of the following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by Morgan
Guaranty of any express or implied agreement, covenant, term
or condition relating to the Related Notes to be performed
or observed by Morgan Guaranty;
(b) the extension of time for the payment by Morgan
Guaranty of all or any portion of the interest payments, the
Related Note Redemption Price or any other sums payable
under the terms of the Related Notes or the extension of
time for the performance of any other obligation under,
arising out of, or in connection with, the Related Notes;
(c) any failure, omission, delay or lack of diligence
on the part of the Property Trustee or the Trust to enforce,
assert or exercise any right, privilege, power or remedy
conferred on the Property Trustee or the Trust pursuant to
the terms of the Related Notes, or any action on the part of
Morgan Guaranty granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership,
insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings
affecting, Morgan Guaranty or any of the assets of Morgan
Guaranty;
(e) any invalidity of, or defect or deficiency in, any
of the Related Notes; or
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(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred.
There shall be no obligation of the Property Trustee or the Trust
to give notice to, or obtain consent of, J.P. Morgan with respect
to the happening of any of the foregoing.
SECTION 2.04. This is a guarantee of payment and not of
collection. The Property Trustee may enforce this Guarantee
directly against J.P. Morgan, and J.P. Morgan waives any right or
remedy to require that any action be brought against Morgan
Guaranty or any other person or entity before proceeding against
J.P. Morgan. If an Event of Default (as defined in the Related
Note issued in connection with the issuance of Preferred
Securities of any series and the related Common Securites of such
series) has occurred and is continuing and is attributable to the
failure of Morgan Guaranty to pay principal or interest on such
Related Note on the date such principal or interest is otherwise
payable (or in the case of a redemption, on the redemption date)
any Holder of the outstanding Preferred Securities of such series
may directly institute a proceeding under the Related Note
Guarantee with respect to the Preferred Securities of such series
against JPM for enforcement of payment to such Holder of the related
Principal Amount of or dividends or other distributions on, as
applicable, the Preferred Securities of such series of such
Holder (a "Direct Action") on or after the date of the occurrence
of such Event of Default. In connection with such Direct Action,
the rights of the Holder of the Common Securities of such series
shall be subrogated to the rights of such Holder of Preferred
Securities of such series to the extent of any payment made by
JPM to such Holder of Preferred Securities of such series in such
Direct Action. Subject to Section 2.05 hereof, all waivers herein
contained shall be without prejudice to the Property Trustee's or
any Holder's right to proceed against Morgan Guaranty, whether by
separate action or by joinder.
SECTION 2.05 J.P. Morgan shall be subrogated to all (if
any) rights of the Property Trustee or any Holder against Morgan
Guaranty in respect of any amounts paid to the Property Trustee
or any Holder by J.P. Morgan under this Related Note Guarantee
and Morgan Guaranty shall not be required to make payment to the
Property Trustee or any Holder of any amount of Related Note
Guarantee Payments in respect of which payment has theretofore
been made by J.P. Morgan pursuant to Section 2.01 hereof;
provided, however, that J.P. Morgan shall not (except to the
extent required by mandatory provisions of law) exercise any
rights which it may acquire by way of subrogation or any
indemnity,
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reimbursement or other agreement, in all cases as a result of a
payment under this Related Note Guarantee, if, at the time of any
such payment, any amounts are due and unpaid under this Related
Note Guarantee. If any amount shall be paid to J.P. Morgan in
violation of the preceding sentence, J.P. Morgan agrees to pay
over such amount to the Property Trustee for application to the
Related Note Guarantee Payments then due hereunder, if any, or to
amounts due the Trust from Morgan Guaranty under the relevant
Related Note.
SECTION 2.06. J.P. Morgan acknowledges that its
obligations hereunder are independent of the obligations of
Morgan Guaranty with respect to the Related Notes and that J.P.
Morgan shall be liable as principal and sole debtor hereunder to
make Related Note Guarantee Payments pursuant to the terms of
this Related Note Guarantee notwithstanding the occurrence of any
event referred to in subsections (a) through (f), inclusive, of
Section 2.03 hereof.
ARTICLE III
The Related Note Guarantee will constitute an unsecured
obligation of J.P. Morgan and will rank (i) subordinate and
junior in right of payment to all other liabilities of J.P.
Morgan, (ii) pari passu with the most senior preferred stock
outstanding as of the date hereof of J.P. Morgan and (iii) senior
to J.P. Morgan's common stock.
ARTICLE IV
This Related Note Guarantee shall terminate and be of
no further force and effect as to any Related Note upon full
payment of the Related Note Redemption Price with respect to such
Related Note; provided, however, that this Related Note Guarantee
shall continue to be effective or shall be reinstated, as the
case may be, if at any time the Property Trustee must restore
payment of any sums paid under such Related Note or under this
Related Note Guarantee for any reason whatsoever. J.P. Morgan
agrees to indemnify the Property Trustee and hold it harmless
against any loss it may suffer in such circumstances.
ARTICLE V
SECTION 5.01. All guarantees and agreements contained
in this Related Note Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of J.P. Morgan
and shall inure to the benefit of the
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Property Trustee and its successors. J.P. Morgan shall not assign
its obligations hereunder without the prior approval of the
Property Trustee.
SECTION 5.02. This Related Note Guarantee may be
amended or waived only with the prior approval of the Property
Trustee; provided that no such amendment or waiver shall
adversely affect the holders of the Preferred Securities without
the consent of at least a majority in Principal Amount of all
Preferred Securities of each affected series then outstanding,
voting as a single class.
SECTION 5.03. Any notice, request or other
communication required or permitted to be given hereunder to J.P.
Morgan shall be given in writing by mail or by facsimile
transmission (followed by mail), addressed to J.P. Morgan, as
follows:
J.P. Morgan & Co. Incorporated
60 Wall Street
New York, NY 10260-0060
Facsimile No.: (212) 648-5175
Attention: Assistant Secretary
Any notice, request or other communication required or
permitted to be given hereunder to the Property Trustee shall be
given by J.P. Morgan in the same manner as set forth in Section
14.01 of the Declaration.
SECTION 5.04. This Related Note Guarantee is solely for
the benefit of the Property Trustee and is not separately
transferable from the Related Notes.
SECTION 5.05. Pursuant to the Declaration, under
certain circumstances, holders of not less than a majority in
Principal Amount of Preferred Securities of any series voting as
a separate class shall have the right to direct the Property
Trustee to enforce its rights under this Related Note Guarantee.
SECTION 5.06. THIS RELATED NOTE GUARANTEE SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, this Related Note Guarantee is
executed as of the day and year first above written.
<PAGE>
J.P. MORGAN & CO.
INCORPORATED,
By
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Name:
Title:
