As filed with the Securities and Exchange Commission on February 2, 1998
Registration Nos. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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THE EQUITABLE COMPANIES INCORPORATED DELAWARE 13-3623351
EQ CAPITAL TRUST I DELAWARE Application Pending
EQ CAPITAL TRUST II DELAWARE Application Pending
EQ CAPITAL TRUST III DELAWARE Application Pending
EQ CAPITAL TRUST IV DELAWARE Application Pending
(Exact name of Registrant as (State or other jurisdiction of (I.R.S. employer
specified in its charter) incorporation or organization) identification numbers)
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1290 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10104
(212) 554-1234
(Address, including zip code, and telephone number, including area
code, of registrants' principal executive offices)
ROBERT E. GARBER
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
THE EQUITABLE COMPANIES INCORPORATED
1290 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10104
(212) 554-1234
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
COPIES TO:
MICHAEL W. BLAIR
DEBEVOISE & PLIMPTON
875 THIRD AVENUE
NEW YORK, NEW YORK 10022
(212) 909-6000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. [ ]
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If this Form is a post-effective amendment filed pursuant to rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED PRICE(1) FEE
--------------------------- -------- ---
Senior debt securities, subordinated
debt securities
and junior subordinated
debt securities (collectively,
"Debt Securities") of The Equitable
Companies Incorporated(2)
Preferred Securities of EQ Capital
Trust I, II, III and IV, severally
("Preferred Securities")(2)
Guarantees (the "Guarantees") of
Preferred Securities of EQ Capital
Trust I, II, III and IV by The
Equitable Companies Incorporated(3)
Common Stock(4)
Total $1,000,000,000(5)(6) $295,000
(1) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(o), exclusive of accrued interest and
distributions, if any.
(2) Such indeterminable number or amount of (i) Debt Securities of The
Equitable Companies Incorporated as may from time to time be issued at
indeterminate prices or upon conversion or exchange of securities so
issued; (ii) Preferred Securities of EQ Capital Trust I, II, III and
IV, as may from time to time be issued at indeterminate prices. Junior
Subordinated Debt Securities may be issued and sold to EQ Capital Trust
I, II, III and IV, severally, in which event such Junior Subordinated
Debt Securities may later be distributed to the holders of Preferred
Securities upon a dissolution of EQ Capital Trust I, II, III or IV and
the distribution of the assets thereof.
(3) The Equitable Companies Incorporated is also registering under this
registration statement all other obligations that it may have with
respect to Preferred Securities issued by EQ Capital Trust I, II, III,
and IV. No separate consideration will be received for any Guarantee or
any other such obligations.
(4) Includes such indeterminate number of shares of Common Stock as may be
issued upon conversion or exchange of any Debt Securities that provide
for conversion or exchange into Common Stock. No separate consideration
will be received for the Common Stock issuable on conversion of or in
exchange for Debt Securities.
(5) Such amount in U.S. dollars or the equivalent in foreign denominated
currencies or currency units or, if any Debt Securities are issued at
original issue discount, such greater amount as shall result in an
aggregate initial offering price of $1,000,000,000. The Prospectuses
herein cover $1,000,000,000 of securities.
(6) This Registration Statement also relates to offers and sales of Debt
Securities, Preferred Securities and Guarantees in connection with
market-making transactions by and through affiliates of the
registrants, including Donaldson, Lufkin & Jenrette Securities
Corporation.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(A), MAY DETERMINE.
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EXPLANATORY NOTE
This Registration Statement contains two forms of Prospectuses to be
used in connection with offerings of the following securities: (1) debt
securities (both senior and subordinated) of The Equitable Companies
Incorporated and (2) preferred securities of EQ Capital Trust I, II, III and IV,
severally, junior subordinated debt securities of The Equitable Companies
Incorporated and Guarantees by The Equitable Companies Incorporated of preferred
securities issued by EQ Capital Trust I, II, III and IV. Each offering of
securities made under this Registration Statement will be made pursuant to one
of these Prospectuses, with the specifications of the securities offered thereby
set forth in an accompanying Prospectus Supplement.
In addition, this Registration Statement contains separate prospectus
pages relating to certain market-making transactions in (1) the debt securities
of The Equitable Companies Incorporated and (2) the preferred securities of EQ
Capital Trust I, II, III and IV, the junior subordinated debt securities of The
Equitable Companies Incorporated and Guarantees by The Equitable Companies
Incorporated of preferred securities issued by EQ Capital Trust I, II, III and
IV.
The complete Prospectus for the offering of the debt securities (both
senior and subordinated) of The Equitable Companies Incorporated follows
immediately after this Explanatory Note, which is then immediately followed by
the complete Prospectus for the offering of the preferred securities of EQ
Capital Trust I, II, III and IV, the junior subordinated debt securities of The
Equitable Companies Incorporated and Guarantees by The Equitable Companies
Incorporated of preferred securities issued by EQ Capital Trust I, II, III and
IV. Following such Prospectuses are certain portions of such Prospectuses
relating to market-making transactions, which include an alternate front and
back cover page, an alternate "Use of Proceeds" section and an alternate "Plan
of Distribution" section. All other sections of the respective Prospectus for
the initial sale of the debt securities of The Equitable Companies Incorporated
and the preferred securities of EQ Capital Trust I, II, III and IV, the junior
subordinated debt securities of The Equitable Companies Incorporated and
Guarantees by The Equitable Companies Incorporated of preferred securities
issued by EQ Capital Trust I, II, III and IV, are to be used in the respective
Prospectus relating to market-making transactions.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION DATED FEBRUARY 2, 1998
PROSPECTUS
$1,000,000,000
THE EQUITABLE COMPANIES INCORPORATED
DEBT SECURITIES
The Equitable Companies Incorporated (the "Company") may from time to
time offer senior or subordinated debt securities (the "Senior Debt Securities"
and the "Subordinated Debt Securities" respectively, and collectively, the "Debt
Securities").
The Debt Securities offered pursuant to this Prospectus may be issued
in one or more series or issuances in U.S. dollars or in one or more foreign
currencies or currency units. By separate prospectus, the form of which is
included in the Registration Statement of which this Prospectus forms a part,
four Delaware statutory business trusts (the "Trusts"), which are wholly owned
subsidiaries of the Company, may from time to time severally offer preferred
securities guaranteed by the Company to the extent set forth therein and the
Company may offer from time to time junior subordinated debt securities to a
Trust. The aggregate initial public offering price of the securities to be
offered by this Prospectus and such other prospectus shall not exceed
$1,000,000,000 (or its equivalent in one or more foreign currencies or currency
units).
Specific terms of the particular series of Debt Securities in respect
of which this Prospectus is being delivered (the "Offered Securities") will be
set forth in an accompanying Prospectus Supplement (the "Prospectus
Supplement"), which will describe, without limitation and where applicable, the
following: the ranking as senior or subordinated debt securities, the specific
designation, aggregate principal amount, denominations, maturity, premium, if
any, interest rate (which may be fixed or variable) or method of calculating
interest, if any, place or places where principal, premium, if any, and
interest, if any, will be payable, currency in which principal, premium, if any,
and interest, if any, will be payable, any terms of redemption, any sinking fund
provisions, any listing on a securities exchange, initial public offering or
purchase price, conversion rights, methods of distribution and other specific
terms of the offering.
The Prospectus Supplement will contain information about certain United
States federal income tax considerations relating to the Debt Securities, if
applicable.
The Debt Securities will be unsecured and, because the Company is a
non-operating holding company, will be effectively subordinated to all
liabilities of the Company's subsidiaries, including liabilities under contracts
of insurance and annuities written by the Company's insurance subsidiaries.
Accordingly, holders of the Debt Securities should look only to the assets of
the Company for payments of interest and principal. Unless otherwise specified
in a Prospectus Supplement, the Senior Debt Securities will rank equally with
all other unsecured and unsubordinated indebtedness of the Company. The
Subordinated Debt Securities will be subordinated in right of payment to all
Senior Debt (as defined herein) of the Company to the extent described herein
and in the Prospectus Supplement relating thereto. The Debt Securities may be
issued in registered form or bearer form, or both. If so specified in the
applicable Prospectus Supplement, Debt Securities of a series may be issued in
whole or in part in the form of one or more temporary or permanent global
securities.
The Offered Securities may be offered directly, through agents
designated from time to time, through dealers or through underwriters. Such
agents or underwriters may act alone or with other agents or underwriters. See
"Plan of Distribution." Any such agents, dealers or underwriters will be set
forth in a Prospectus Supplement. If an agent of the Company, or a dealer or
underwriter is involved in the offering of the Offered Securities, the agent's
commission, dealer's purchase price, underwriter's discount and net proceeds to
the Company, as the case may be, will be set forth in, or may be calculated
from, the Prospectus Supplement. Any underwriters, dealers or agents
participating in the offering may be deemed "underwriters" within the meaning of
the Securities Act of 1933, as amended.
This Prospectus may not be used to consummate sales of Offered
Securities unless accompanied by a Prospectus Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is _________, 1998
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). The registration
statement of which this Prospectus forms a part, as well as reports, proxy
statements and other information filed by the Company, may be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549; 7 World
Trade Center, 13th Floor, Suite 1300, New York, New York 10048; and Suite 1400,
Northwestern Atrium Center, 14th Floor, 500 West Madison Street, Chicago,
Illinois 60611. Copies of such material can be obtained at prescribed rates from
the Public Reference Section of the Commission at Room 1024, 450 Fifth Street,
N.W., Judiciary Plaza, Washington, D.C. 20549. Such material may also be
accessed electronically by means of the Commission's home page on the Internet
at http://www.sec.gov. The Company's common stock, par value $0.01 per share
(the "Common Stock"), is listed on the New York Stock Exchange, Inc. and reports
and other information concerning the Company can also be inspected at the office
of the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
This Prospectus constitutes a part of the Registration Statement on
Form S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") filed with the Commission under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Offered Securities. This
Prospectus does not contain all of the information set forth in such
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. Reference is made to such
Registration Statement and to the exhibits relating thereto for further
information with respect to the Company and the Offered Securities. Any
statements contained herein concerning the provisions of any document filed as
an exhibit to the Registration Statement or otherwise filed with the Commission
or incorporated by reference herein are not necessarily complete, and in each
instance reference is made to the copy of such document so filed for a more
complete description of the matter involved. Each such statement is qualified in
its entirety by such reference.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December
31, 1996, Quarterly Reports on Form 10-Q for the quarters ended March 31, 1997,
June 30, 1997 and September 30, 1997, Current Report on Form 8-K dated July 10,
1997 and Registration Statement on Form 8-A, dated May 26, 1992, incorporating
the description of the Company's Common Stock in the Company's Registration
Statement on Form S-1 (Registration No. 33-48115), each previously filed by the
Company with the Commission, are incorporated by reference in this Prospectus.
All documents filed by the Company after the date of this Prospectus
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the termination of the offering of the Offered Securities offered hereby, shall
be deemed to be incorporated herein by reference and to be a part hereof from
the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statements as modified or superseded shall
be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person to whom a copy
of this Prospectus is delivered, upon written or oral request of such person, a
copy of any or all of the documents referred to above which have been or may be
incorporated by reference in this Prospectus (other than certain exhibits to
such documents). Requests for such documents should be directed to The Equitable
Companies Incorporated, 1290 Avenue of the Americas, New York, New York 10104,
Attention: Corporate Secretary (Telephone: (212) 314-3914).
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS, OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY, OR ANY UNDERWRITER, AGENT
OR DEALER. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE
INFORMATION CONTAINED OR INCORPORATED BY REFERENCE HEREIN IS CORRECT AS OF ANY
TIME SUBSEQUENT TO THE DATE OF SUCH INFORMATION. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES
BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT
AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
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THE EQUITABLE
For the purpose of this Prospectus, the term "The Equitable" refers to
The Equitable Companies Incorporated (the "Company") and its subsidiaries.
The Equitable is a diversified financial services organization serving
a broad spectrum of insurance, investment management and investment banking
customers. The Equitable Life Assurance Society of the United States ("Equitable
Life"), a subsidiary of the Company, was established in the State of New York in
1859. For more than 100 years it has been among the largest life insurance
companies in the United States. Equitable Life and its subsidiaries distribute a
variety of insurance, annuity and investment products.
At September 30, 1997, the Company's holdings in its investment
subsidiaries included an approximately 72% interest in Donaldson, Lufkin &
Jenrette, Inc. ("DLJ") and an approximately 58% interest in Alliance Capital
Management L.P. ("Alliance"). The Company's investment subsidiaries provide
investment management and investment banking services to institutional and
individual clients, including the Company's insurance subsidiaries.
AXA is the Company's largest stockholder, beneficially owning at
September 30, 1997 approximately 59% of the outstanding shares of common stock,
par value $.01, of the Company (the "Common Stock"). The Company is a Delaware
corporation with its principal headquarters located at 1290 Avenue of the
Americas, New York, New York 10104 (Telephone: (212) 554-1234).
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement,
proceeds from the sale of the Offered Securities will be used by the Company for
general corporate purposes and initially may be temporarily invested in
short-term securities.
RATIOS OF EARNINGS
TO FIXED CHARGES AND EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the ratios of earnings to fixed charges
and earnings to combined fixed charges and preferred stock dividends for the
Company for the periods indicated.
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NINE MONTHS ENDED
YEARS ENDED DECEMBER 31, SEPTEMBER 30,
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1992 1993 1994 1995 1996 1997
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Ratio of earnings to fixed charges (1).. 1.046 1.287 1.294 1.239 1.174 1.363
Ratio of earnings to combined fixed
charges and preferred stock
dividends (1)........................ 1.029 1.212 1.229 1.222 1.159 1.352
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(1) For purposes of determining the historical ratios of earnings to fixed
charges, and of earnings to combined fixed charges and preferred stock
dividends, earnings consist of earnings from continuing operations before
Federal income taxes, minority interest and cumulative effect of accounting
change adjusted for (i) excess of equity in income of unconsolidated
investees over distributed income and (ii) equity in losses of
unconsolidated investees, plus fixed charges. Fixed charges consist of
interest expense on long and short-term debt, amortization of deferred debt
expenses plus the portion of operating lease rentals, net of income from
subleases, representative of the interest factor. The inclusion of Interest
Credited to Policyholders' Account Balances in the ratios presented above
would not have a material effect on such ratios.
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DESCRIPTION OF DEBT SECURITIES
The Senior Debt Securities offered hereby are to be issued in one or
more series under the Senior Indenture, dated as of December 1, 1993, as
supplemented (as so supplemented, the "Senior Indenture"), between the Company
and The Chase Manhattan Bank, formerly known as Chemical Bank, as trustee (the
"Trustee"). The Subordinated Debt Securities offered hereby are to be issued
under the Subordinated Indenture, dated as of October 22, 1994 (the
"Subordinated Indenture" and, together with the Senior Indenture, the
"Indentures"), between the Company and State Street Bank and Trust Company, as
successor to Shawmut Bank Connecticut, National Association, as trustee (the
"Trustee"), copies of which have been incorporated by reference as exhibits to
the Registration Statement of which this Prospectus forms a part.
The statements herein relating to the Debt Securities and the following
summaries of certain provisions of the Indentures do not purport to be complete
and are subject to, and are qualified in their entirety by reference to, all the
provisions of the Indentures (as they may be amended or supplemented from time
to time) and the Trust Indenture Act of 1939, as amended (the "TIA"). Whenever
particular sections or defined terms of the Indentures (as they may be amended
or supplemented from time to time) are referred to herein or in a Prospectus
Supplement, such sections or defined terms are incorporated herein or therein by
reference.
GENERAL
The Debt Securities will be unsecured obligations of the Company. The
Senior Debt Securities will be unsecured and will rank on a parity with all
other unsecured and unsubordinated obligations of the Company. The Subordinated
Debt Securities will be subordinate and junior in right of payment to the extent
and in the manner set forth in the Subordinated Indenture to all Senior Debt (as
defined below) of the Company. As of September 30, 1997, the Company had $589.0
million aggregate principal amount of Senior Debt outstanding and no
Subordinated Debt Securities were outstanding. As a non-operating holding
company most of the assets of the Company are owned by its subsidiaries.
Accordingly, the Debt Securities will be effectively subordinated to all
existing and future liabilities of the Company's subsidiaries, including
liabilities under contracts of insurance and annuities written by the Company's
insurance subsidiaries, primarily Equitable Life, and holders of Debt Securities
should look only to the assets of the Company for payments of interest and
principal. The Indentures do not limit the aggregate amount of Debt Securities
which may be issued thereunder. Except as otherwise provided in the applicable
Prospectus Supplement, the Indentures, as they apply to any series of Debt
Securities, also do not limit the amount of other secured or unsecured debt
which may be issued or incurred by the Company. See "--Certain Covenants" and
"--Subordination under the Subordinated Indenture" and the Prospectus Supplement
relating to any offering of Subordinated Debt.
The Debt Securities will be issuable in one or more series pursuant to
an indenture supplemental to the Senior Indenture or the Subordinated Indenture,
as the case may be, or a resolution of the Company's Board of Directors or a
committee thereof. (Section 3.1 of each Indenture.)
Reference is made to the applicable Prospectus Supplement which will
accompany this Prospectus for a description of the specific series of Debt
Securities being offered thereby, including: (1) the title of such Debt
Securities; (2) any limit upon the aggregate principal amount of such Debt
Securities; (3) the date or dates on which the principal of and premium, if any,
on such Debt Securities will mature or the method of determining such date or
dates; (4) the rate or rates (which may be fixed or variable) at which such Debt
Securities will bear interest, if any, or the method of calculating such rate or
rates; (5) the date or dates from which interest, if any, will accrue or the
method by which such date or dates will be determined; (6) the date or dates on
which interest, if any, will be payable and the record date or dates therefor;
(7) the place or places where principal of, premium, if any, and interest, if
any, on such Debt Securities will be payable; (8) the period or periods within
which, the price or prices at which, the currency or currencies (including
currency unit or units) in which, and the terms and conditions upon which, such
Debt Securities may be redeemed, in whole or in part, at the option of the
Company; (9) the obligation, if any, of the Company to redeem or purchase such
Debt Securities pursuant to any sinking fund or analogous provisions or upon the
happening of a specified event or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the other terms
and conditions upon which, such Debt Securities shall be redeemed or purchased,
in whole or in part, pursuant to such obligation; (10) the denominations in
which such Debt Securities are authorized to be issued; (11) the currency or
currency unit for which Debt Securities may be purchased or in which Debt
Securities may be denominated and/or the currency or currencies (including
currency unit or units) in which principal of, premium, if any, and interest, if
any, on such Debt Securities will be payable and whether the Company or the
holders of any such Debt Securities may elect to receive payments in respect of
such Debt Securities in a currency or currency unit other than that in which
such Debt Securities are stated to be payable; (12) if the amount of principal
of, or any premium or interest on, any of such Debt Securities may be determined
with reference to an index or pursuant to a formula, the manner in which such
amounts will be determined; (13) if other than the principal amount thereof, the
portion of the principal amount of such Debt Securities which will be payable
upon declaration of the acceleration of the maturity thereof or the method by
which such portion shall be determined; (14) any addition to, or modification or
deletion of, any Event of Default or any covenant of the Company specified in
the Indenture with respect to such Debt Securities; (15) the application, if
any, of such means of defeasance or covenant defeasance as may be specified for
such Debt Securities; (16) whether such Debt Securities are to be issued in
whole or in part in the form of one or more temporary or permanent global
securities and, if so, the identity of the depository for such global security
or securities; (17) in the case of the Subordinated Indenture, the relative
degree to which such Debt Securities of the
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Series shall be senior to or be subordinated to other series of such Debt
Securities in right of payment, whether such other series of Debt Securities are
outstanding or not; (18) in the case of the Subordinated Indenture, the terms,
if any, upon which such Debt Securities may be converted or exchanged, at the
option of the holders thereof, into or for Common Stock of the Company or other
securities or property; and (19) any other terms not inconsistent with the terms
of the Indentures pertaining to such Debt Securities (Section 3.1 of each
Indenture.)
Unless otherwise specified in the applicable Prospectus Supplement,
Debt Securities will be issued in fully-registered form without coupons in
denominations of $1,000 or any integral multiples of $1,000. (Section 3.2 of
each Indenture.) Where Debt Securities of any series are issued in bearer form,
the special restrictions and considerations, including special offering
restrictions and special federal income tax considerations, applicable to any
such Debt Securities and to payment on and transfer and exchange of such Debt
Securities will be described in the applicable Prospectus Supplement. Bearer
Debt Securities will be transferable by delivery. (Section 3.5 of each
Indenture.)
Debt Securities may be sold at a substantial discount below their
stated principal amount, bearing no interest or interest at a rate which at the
time of issuance is below market rates. Certain federal income tax consequences
and special considerations applicable to any such Debt Securities will be
described in the applicable Prospectus Supplement.
If the purchase price of any of the Debt Securities is payable in one
or more foreign currencies or currency units or if any Debt Securities are
denominated in one or more foreign currencies or currency units or if the
principal of, premium, if any, or interest, if any, on any Debt Securities is
payable in one or more foreign currencies or currency units, the restrictions,
elections, certain federal income tax considerations, specific terms and other
information with respect to such issue of Debt Securities and such foreign
currencies or currency units will be set forth in the applicable Prospectus
Supplement.
If any index is used to determine the amount of payments of principal
of, premium, if any, or interest on any series of Debt Securities, special
federal income tax, accounting and other considerations applicable thereto will
be described in the applicable Prospectus Supplement.
The general provisions of the Indentures do not afford holders of the
Debt Securities protection in the event of a highly leveraged or other
transaction involving the Company that may adversely affect holders of the Debt
Securities.
PAYMENT, REGISTRATION, TRANSFER AND EXCHANGE
Unless otherwise provided in the applicable Prospectus Supplement,
payments in respect of the Debt Securities will be made in the designated
currency at the office or agency of the Company maintained for that purpose as
the Company may designate from time to time, except that, at the option of the
Company, interest payments, if any, on Debt Securities in registered form may be
made (i) by checks mailed to the holders of Debt Securities entitled thereto at
their registered addresses or (ii) by wire transfer to an account maintained by
the person entitled thereto as specified in the Register. (Sections 3.7(a) and
9.2 of each Indenture.) Unless otherwise indicated in an applicable Prospectus
Supplement, payment of any installment of interest on Debt Securities in
registered form will be made to the person in whose name such Debt Security is
registered at the close of business on the regular record date for such
interest. (Section 3.7(a) of each Indenture.)
Payment in respect of Debt Securities in bearer form will be made in
the currency and in the manner designated in the Prospectus Supplement, subject
to any applicable laws and regulations, at such paying agencies outside the
United States as the Company may appoint from time to time. The paying agents
outside the United States, if any, initially appointed by the Company for a
series of Debt Securities will be named in the Prospectus Supplement. The
Company may at any time designate additional paying agents or rescind the
designation of any paying agents, except that, if Debt Securities of a series
are issuable as Registered Securities, the Company will be required to maintain
at least one paying agent in each Place of Payment for such series and, if Debt
Securities of a series are issuable as Bearer Securities, the Company will be
required to maintain a paying agent in a Place of Payment outside the United
States where Debt Securities of such series and any coupons appertaining thereto
may be presented and surrendered for payment. (Section 9.2 of each Indenture.)
Unless otherwise provided in the applicable Prospectus Supplement, Debt
Securities in registered form will be transferable or exchangeable at the agency
of the Company maintained for such purpose as designated by the Company from
time to time. (Sections 3.5 and 9.2 of each Indenture.) Debt Securities may be
transferred or exchanged without service charge, other than any tax or other
governmental charge imposed in connection therewith. (Section 3.5 of each
Indenture.)
BOOK-ENTRY SYSTEM
If so specified in the accompanying Prospectus Supplement, Debt
Securities of any series may be issued under a book-entry system in the form of
one or more global Debt Securities (each a "Global Security"). Each Global
Security will be deposited with, or on behalf of a depositary, which, unless
otherwise specified in the accompanying Prospectus Supplement, will be The
Depository Trust Company, New York, New York (the "Depositary"). The Global
Securities will be registered in the name of the Depositary or its nominee.
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The Depositary has advised the Company that the Depositary is a limited
purpose trust company organized under the laws of the State of New York, a
"banking organization" within the meaning of the New York banking law, a member
of the Federal Reserve System, a "clearing corporation" within the meaning of
the New York Uniform Commercial Code, and a "clearing agency" registered
pursuant to the provisions of section 17A of the Exchange Act. The Depositary
was created to hold securities of its participants and to facilitate the
clearance and settlement of securities transactions among its participants
through electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of securities certificates. The
Depositary's participants include securities brokers and dealers, banks, trust
companies, clearing corporations, and certain other organizations, some of whom
(and/or their representatives) own the Depositary. Access to the Depositary's
book-entry system is also available to others, such as banks, brokers, dealers
and trust companies that clear through or maintain a custodial relationship with
a participant, either directly or indirectly.
Upon the issuance of a Global Security in registered form, the
Depositary will credit, on its book-entry registration and transfer system, the
respective principal amounts of the Debt Securities represented by such Global
Security to the accounts of participants. The accounts to be credited will be
designated by the underwriters, dealers or agents. Ownership of beneficial
interests in the Global Security will be limited to participants or persons that
may hold interests through participants. Ownership of beneficial interests by
participants in the Global Security will be shown on, and the transfer of that
ownership interest will be effected only through, records maintained by such
participants. The laws of some jurisdictions may require that certain purchasers
of securities take physical delivery of such securities in definitive form. Such
laws may impair the ability to own, transfer or pledge beneficial interest in a
Global Security.
So long as the Depositary or its nominee is the registered owner of a
Global Security, it will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
applicable Indenture. Except as set forth below, owners of a beneficial interest
in such Global Security will not be entitled to have the Debt Securities
represented thereby registered in their names, will not receive or be entitled
to receive physical delivery of certificates representing the Debt Securities
represented thereby and will not be considered the owners or holders thereof
under the applicable Indenture. Accordingly, each person owning a beneficial
interest in such Global Security must rely on the procedures of the Depositary
and, if such person is not a participant, on the procedures of the participant
through which such person owns its interest, to exercise any rights of a holder
under the applicable Indenture. The Company understands that under existing
practice, in the event that the Company requests any action of a holder or a
beneficial owner desires to take any action a holder is entitled to take, the
Depositary would act upon the instructions of, or authorize, the participant to
take such action.
Payment of principal of, and interest on, the Debt Securities will be
made to the Depositary or its nominee, as the case may be, as the registered
owner and holder of the Global Security representing such Debt Securities. None
of the Company, the Trustee, any paying agent or registrar for the Debt
Securities will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in the Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
The Company has been advised by the Depositary that the Depositary will
credit participants' accounts with payments of principal or interest on the
payment date thereof in amounts proportionate to their respective beneficial
interests in the principal amount of the Global Security as shown on the records
of the Depositary. The Company expects that payments by participants to owners
of beneficial interests in the Global Security held through such participants
will be governed by standing instructions and customary practices, as is now the
case with securities held for the accounts of customers registered in "street
name," and will be the responsibility of such participants.
A Global Security may not be transferred except as a whole by the
Depositary to a nominee or successor of the Depositary or by a nominee of the
Depositary to another nominee of the Depositary. A Global Security representing
all but not part of the Debt Securities being offered pursuant to the applicable
Prospectus Supplement is exchangeable for Debt Securities in definitive form of
like tenor and terms if (i) the Depositary notifies the Company that it is
unwilling or unable to continue as depositary for such Global Security or if at
any time the Depositary is no longer eligible to be, or is not in good standing
as, a clearing agency registered under the Exchange Act, and in either case, a
successor depositary is not appointed by the Company within 90 days of receipt
by the Company of such notice or of the Company becoming aware of such
ineligibility, or (ii) the Company in its sole discretion at any time determines
not to have all of the Debt Securities represented by a Global Security and
notifies the Trustee thereof. A Global Security exchangeable pursuant to the
preceding sentence shall be exchangeable for Debt Securities registered in such
names and in such authorized denominations as the Depositary for such Global
Security shall direct.
The Debt Securities of a series may also be issued in whole or in part
in the form of one or more bearer global securities (a "Bearer Global Security")
that will be deposited with a depository, or with a nominee for such depository,
identified in the applicable Prospectus Supplement. Any such Bearer Global
Securities may be issued in temporary or permanent form. (Section 3.4 of each
Indenture.) The specific terms and procedures, including the specific terms of
the depository arrangement, with respect to any portion of a series of Debt
Securities to be represented by one or more Bearer Global Securities will be
described in the applicable Prospectus Supplement.
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CERTAIN DEFINITIONS APPLICABLE TO COVENANTS AND EVENTS OF DEFAULT
"Consolidated Tangible Net Worth" shall mean, at any date, the total
assets appearing on the most recently prepared consolidated balance sheet of the
Company and its consolidated subsidiaries as at the end of a fiscal quarter of
the Company, prepared in accordance with generally accepted accounting
principles, less (a) the total liabilities appearing on such balance sheets and
(b) intangible assets. "Intangible assets" means the value, as shown on or
reflected in such balance sheet, of (i) all trade names, trademarks, licenses,
patents, copyrights and goodwill, (ii) organizational costs and (iii)
unamortized debt discount and expense, less unamortized premium.
"Designated Subsidiary" shall mean each of Equitable Life, DLJ and
Donaldson, Lufkin & Jenrette Securities Corporation, so long as any such entity
remains a subsidiary, any consolidated subsidiary of the Company the assets of
which constitute 10% or more of the Total Assets, and any subsidiary which is a
successor to all or a principal part of the business or properties of such
subsidiaries.
"Total Assets" shall mean, at any date, the total assets (including
assets held in Separate Accounts) appearing on the most recently prepared
consolidated balance sheet of the Company and its consolidated subsidiaries as
at the end of a fiscal quarter of the Company, prepared in accordance with
generally accepted accounting principles.
CERTAIN COVENANTS
Limitation on Liens. The Senior Indenture provides that for the benefit
of the holders of the Senior Debt Securities issued thereunder, the Company will
not, nor will it permit any Designated Subsidiary to, incur, issue, assume or
guarantee any indebtedness for money borrowed (hereinafter called
"Indebtedness") if such Indebtedness is secured by a pledge, mortgage, deed of
trust or other lien on any shares of stock or Indebtedness of any Designated
Subsidiary (such pledges, mortgages, deeds of trust and other liens being
hereinafter called a "Lien"), without effectively providing that any Senior Debt
Securities (together with, if the Company shall so determine, any other
Indebtedness (or any bonds, debentures, notes or other similar evidences of
indebtedness whether or not for borrowed money) of the Company or such
Designated Subsidiary then existing or thereafter created which is not
subordinate to such Senior Debt Securities) shall be secured equally and ratably
with (or prior to) such secured Indebtedness, so long as such secured
Indebtedness shall be so secured unless, after giving effect thereto, the
aggregate principal amount of all such secured Indebtedness which would
otherwise be prohibited would not exceed 15% of Consolidated Tangible Net Worth;
provided, however, that these restrictions shall not apply to and there shall be
excluded from secured Indebtedness in any computation under these restrictions,
Indebtedness secured by: (i) Liens on any shares of stock or Indebtedness
acquired from a corporation merged with or into the Company or a Designated
Subsidiary, (ii) Liens to secure Indebtedness of a Designated Subsidiary to the
Company or another Designated Subsidiary but only as long as such Indebtedness
is owned or held by the Company or a Designated Subsidiary and (iii) any
extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any Lien referred to in the foregoing
clauses (i) and (ii). (Section 9.8 of the Senior Indenture.)
Consolidation, Merger, Sale, Conveyance and Lease. The Indentures
permit the Company to consolidate or merge with or into any other entity or
entities, or to sell, convey or lease all or substantially all of its property
to any other entity; provided, however, (i) that the person (if other than the
Company) formed by such consolidation, or into which the Company is merged or
which acquires or leases substantially all of the property of the Company, is a
corporation or other entity organized under the laws of the United States, any
state thereof or the District of Columbia and expressly assumes the Company's
obligations on the Debt Securities and under the Indenture and (ii) immediately
after giving effect to such transaction, no Event of Default exists. (Section
7.1 of each Indenture.)
EVENTS OF DEFAULT, NOTICE AND CERTAIN RIGHTS ON DEFAULT
Except as otherwise provided in a Prospectus Supplement relating to the
Debt Securities of a particular series, Events of Default with respect to Debt
Securities of any series are defined in each Indenture as (a) default in the
payment of any interest on any Debt Security of that series, and the continuance
of such default for a period of 30 days; (b) default in the payment of any
installment of the principal of or any premium on any Debt Security of that
series when due, whether at maturity, upon redemption, by declaration or
otherwise; (c) default in any material respect by the Company in the performance
of any other covenant or agreement contained in the Indenture under which the
Debt Securities of that series were issued and the continuance of such default
for a period of 90 days after written notice as provided in such Indenture; (d)
certain events of bankruptcy, insolvency and reorganization of the Company; and
(e) in the case of the Senior Indenture only, default by the Company or any
Designated Subsidiary in the payment of outstanding indebtedness for borrowed
money when due (and after expiration of any applicable grace periods) or default
by the Company or any Designated Subsidiary under any indenture or other
instrument under which any indebtedness for borrowed money has been issued or by
which it is governed as a result of which such indebtedness shall have been
accelerated, and such failure to pay is not cured or such acceleration is not
rescinded, cured or annulled within 30 days after written notice thereof to the
Company by the Trustee for such series or to the Company and the Trustee of such
series by the holders of 25% of the aggregate principal amount of the Debt
Securities of such series then outstanding, provided that such Event of Default
will be cured or waived if the payment of outstanding debt is made or the
default that resulted in the acceleration of such other indebtedness is cured or
waived, as the case may be, and provided further, that the foregoing shall not
apply to (x) any indebtedness for borrowed money under which the obligee has
recourse to the general assets of the Company or a Designated Subsidiary so long
as the aggregate principal amount of such recourse debt (other than with respect
to ancillary matters such as environmental indemnities, misapplication of funds,
costs of enforcement and the like) so due is $25,000,000 or
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less, (y) any secured indebtedness for borrowed money under which the obligee
has recourse (exclusive of recourse for ancillary matters such as environmental
indemnities, misapplication of funds, costs of enforcement and the like) only to
the collateral pledged for repayment so long as the fair market value of such
collateral does not exceed 2% of Total Assets at the time of the default and (z)
any indebtedness for borrowed money under which the obligee has recourse only to
assets held in Separate Accounts. (Section 5.1 of each Indenture.) Events of
Default with respect to a specified series of Debt Securities may be added to
the Indenture and, if so added, will be described in the applicable Prospectus
Supplement. (Sections 3.1 and 5.1 of each Indenture.)
Each Indenture provides that the Trustee will, within 90 days after the
occurrence of a Default with respect to the Debt Securities of any series, give
to the holders of the Debt Securities of that series notice of all Defaults
known to it unless such Default shall have been cured or waived; provided that
except in the case of a Default in payment of principal (and premium, if any) or
interest on the Debt Securities of that series, the Trustee shall be protected
in withholding such notice if it in good faith determines that withholding such
notice is in the interests of all holders of the Debt Securities of that series.
(Section 6.6 of each Indenture.) "Default" means any event which is, or after
notice or passage of time, or both, would be, an Event of Default. (Section 1.1
of each Indenture.)
Each Indenture provides that, if an Event of Default specified therein
occurs with respect to the Debt Securities of any series and is continuing, the
Trustee for such series or the holders of 25% in aggregate principal amount of
all outstanding Debt Securities of that series (calculated as provided for in
each Indenture) may declare the principal of (or, if the Debt Securities of that
series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount specified in the Prospectus Supplement) and
accrued interest, if any, on all the Debt Securities of that series to be due
and payable (provided, with respect to any Debt Securities issued under the
Subordinated Indenture, that the payment of principal and interest on such Debt
Securities shall remain subordinated to the extent provided in Article 12 of the
Subordinated Indenture). (Section 5.2 of each Indenture.)
Each Indenture provides that the holders of a majority in aggregate
principal amount of any series of Debt Securities by written notice to the
Trustee for such series may waive, on behalf of the holders of all Debt
Securities of such series, any past Default or Event of Default with respect to
that series and its consequences except a Default or Event of Default in the
payment of the principal of, premium, if any, or interest, if any, on any Debt
Security or with respect to a covenant or provision that cannot be amended or
modified without consent of the holders of each series of Debt Securities
adversely affected. (Section 5.7 of each Indenture.)
Each Indenture provides that, if a default or an Event of Default shall
have occurred and be continuing, the holders of not less than a majority in
aggregate principal amount of the Debt Securities of each series affected (with
each such series voting as a class) may, subject to certain limited conditions,
direct the time, method and place of conducting any proceeding or any remedy
available to the Trustee for such series, or exercising any trust or power
conferred on such Trustee. (Section 5.8 of each Indenture.)
Each Indenture includes a covenant that the Company will file annually
with the Trustee a certificate as to the presence or absence of certain defaults
under the terms of such Indenture. (Section 9.6 of each Indenture.)
MODIFICATION OF THE INDENTURES
Each Indenture contains provisions permitting the Company and the
Trustee to enter into one or more supplemental indentures without the consent of
the holders of any of the Debt Securities in order (i) to evidence the
succession of another corporation to the Company and the assumption of the
covenants of the Company by a successor to the Company; (ii) to add to the
covenants of the Company or surrender any right or power of the Company; (iii)
to add additional Events of Default with respect to any series of Debt
Securities; (iv) to add to or change any provisions to such extent as necessary
to permit and facilitate the issuance of Debt Securities in bearer form or to
facilitate the issuance of Debt Securities in global form; (v) to change or
eliminate any provision affecting only Debt Securities not yet issued; (vi) to
secure the Debt Securities; (vii) to establish the form or terms of Debt
Securities; (viii) to evidence and provide for successor Trustees or to add or
change any provisions to such extent as necessary to permit and facilitate the
appointment of a separate Trustee or Trustees for specific series of Debt
Securities; (ix) to permit payment in respect of Debt Securities in bearer form
in the United States; (x) to correct any defect or supplement any inconsistent
provisions or to make any other provisions with respect to matters or questions
arising under such Indenture, provided that any such action does not adversely
affect the interests of any holder of Debt Securities of any series then
Outstanding; (xi) to cure any ambiguity or correct any mistake; (xii) in the
case of the Subordinated Indenture, to modify the subordination provisions
thereof in a manner not adverse to the holders of Subordinated Debentures of any
series then Outstanding or (xiii) in the case of the Subordinated Indenture, to
make provision with respect to any conversion or exchange rights of holders not
adverse to the holders of any Subordinated Debt Securities of any series,
including providing for the conversion or exchange of Subordinated Debt
Securities into Equity Securities or property of the Company. (Section 8.1 of
each Indenture.)
Each Indenture also contains provisions permitting the Company and the
Trustee, with the consent of the holders of a majority in aggregate principal
amount of the outstanding Debt Securities affected by such supplemental
indenture (with the Debt Securities of each series voting as a class), to
execute supplemental indentures adding any provisions to or changing or
eliminating any of the provisions of such Indenture or any supplemental
indenture or modifying the rights of the holders of Debt Securities of such
series, except that, without the consent of the holder of each Debt Security so
affected, no such supplemental indenture may: (i) change the time for payment of
principal or premium, if any, or interest on any Debt Security; (ii) reduce the
principal on any Debt Security, or change the manner in which the amount of any
of the foregoing is determined; (iii) reduce the interest rate, or the amount of
premium, if any, payable
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upon the redemption of any Debt Security; (iv) reduce the amount of principal
payable upon acceleration of the maturity of any Original Issue Discount or
Indexed Security; (v) change the currency or currency unit in which any Debt
Security or any premium or interest thereon is payable; (vi) impair the right to
institute suit for the enforcement of any payment on or with respect to any Debt
Security; (vii) reduce the percentage in principal amount of the outstanding
Debt Securities affected thereby, the consent of whose holders is required for
modification or amendment of such Indenture or for waiver of compliance with
certain provisions of the Indenture or for waiver of certain defaults; (viii)
change the obligation of the Company to maintain an office or agency in the
places and for the purposes specified in such Indenture; (ix) in the case of the
Subordinated Indenture, modify the subordination provisions thereof in a manner
adverse to the holders of Subordinated Debentures of any series then
Outstanding; (x) modify the provisions relating to waiver of certain defaults or
any of the foregoing provisions or (xi) in the case of the Subordinated
Indenture, make any change adversely affecting the rights of the holders to
convert or exchange the Debt Securities. (Section 8.2 of each Indenture.)
SUBORDINATION OF SUBORDINATED DEBT
In the Subordinated Indenture, the Company has covenanted and agreed
that any Subordinated Debt Securities issued thereunder are subordinate and
junior in right of payment to all Senior Debt to the extent provided in the
Subordinated Indenture. Upon any payment or distribution of assets to creditors
upon any liquidation, dissolution, winding up, reorganization, assignment for
the benefit of creditors, marshaling of assets or any bankruptcy, insolvency,
debt restructuring or similar proceedings in connection with any insolvency or
bankruptcy proceeding of the Company, the holders of Senior Debt will first be
entitled to receive payment in full of principal of (and premium, if any) and
interest, if any, on such Senior Debt before the holders of Subordinated Debt
Securities will be entitled to receive or retain any payment in respect of the
principal of (and premium, if any) or interest, if any, on the Subordinated Debt
Securities. (Section 12.2 of the Subordinated Indenture.)
In the event of the acceleration of the maturity of any Subordinated
Debt Securities, the holders of all Senior Debt outstanding at the time of such
acceleration will first be entitled to receive payment in full of all amounts
due thereon (including any amounts due upon acceleration) before the holders of
Subordinated Debt Securities will be entitled to receive any payment upon the
principal of (or premium, if any) or interest, if any, on the Subordinated Debt
Securities. (Section 12.3 of the Subordinated Indenture.)
No payments on account of principal (or premium, if any) or interest,
if any, in respect of the Subordinated Debt Securities may be made if there
shall have occurred and be continuing a default in any payment with respect to
Senior Debt, or an event of default with respect to any Senior Debt resulting in
the acceleration of the maturity thereof, or if any judicial proceeding shall be
pending with respect to any such default. For purposes of the subordination
provisions, the payment, issuance and delivery of cash, property or securities
(other than stock and certain subordinated securities of the Company) upon
conversion of any Subordinated Debt Security will be deemed to constitute
payment on account of the principal of such Subordinated Debt Security.
(Sections 12.4 and 12.16 of the Subordinated Indenture.)
"Debt" means with respect to any Person, whether recourse is to all or
a portion of the assets of such Person and whether or not contingent, (i) every
obligation of such Person for money borrowed; (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of such Person; and (vi) every
obligation of the type referred to in clauses (i) through (v) of another Person
and all dividends of another Person the payment of which, in either case, such
Person has guaranteed or is responsible or liable, directly or indirectly, as
obligor or otherwise.
"Senior Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or
not such claim for post-petition interest is allowed in such proceeding), on
Debt, whether incurred on or prior to the date of the Indenture or thereafter
incurred, unless, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such obligations are not
superior in right of payment to the Subordinated Debt Securities or to other
Debt which is pari passu with, or subordinated to, the Subordinated Debt
Securities; provided, however, that Senior Debt shall not be deemed to include
(a) any Debt of the Company which when incurred and without respect to any
election under Section 1111(b) of the Bankruptcy code, was without recourse to
the Company, (b) any Debt of the Company to any of its subsidiaries, (c) Debt to
any employee of the Company, (d) any liability for taxes and (e) indebtedness or
monetary obligations to trade creditors created or assumed by the Company or any
of its subsidiaries in the ordinary course of business in connection with the
obtaining of materials or services.
The Company is a non-operating holding company and most of the assets
of the Company are owned by its subsidiaries. Accordingly, the Subordinated Debt
Securities will be effectively subordinated to all existing and future
liabilities of the Company's subsidiaries, including liabilities under contracts
of insurance and annuities written by the Company's insurance subsidiaries,
primarily Equitable Life, and holders of Subordinated Debt Securities should
look only to the assets of the Company for payments of interest and principal.
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The Subordinated Indenture places no limitation on the amount of
additional Senior Debt that may be incurred by the Company. The Company expects
from time to time to incur additional indebtedness constituting Senior Debt. As
of September 30, 1997, the Company had $589.0 million aggregate principal amount
of Senior Debt outstanding and no Subordinated Debt Securities were outstanding.
The Subordinated Indenture provides that the foregoing subordination
provisions, insofar as they relate to any particular issue of Subordinated Debt
Securities, may be changed prior to such issuance. Any such change would be
described in the Prospectus Supplement relating to such Subordinated Debt
Securities. (Section 3.1 of the Subordinated Indenture.)
DEFEASANCE AND COVENANT DEFEASANCE
Defeasance and Discharge. Each Indenture provides that the Company will
be discharged from any and all obligations in respect of the Debt Securities of
or within any series (except for certain obligations to register the transfer or
exchange of Debt Securities, to replace stolen, lost or mutilated Debt
Securities, to maintain paying agencies and to hold monies for payment in trust
and for obligations in connection with a conversion of Debt Securities) upon the
deposit with the Trustee, in trust, of money and/or U.S. Government Obligations
(as defined in each Indenture) which through the payment of interest and
principal in respect thereof in accordance with their terms will provide money
in an amount sufficient to pay the principal of and each installment of interest
on such Debt Securities on the stated maturity of such payments in accordance
with the terms of such Indenture and such Debt Securities. (Sections 3.1 and 4.4
of each Indenture.) Such a trust may only be established if, among other things,
the Company delivers to the relevant Trustee an Officers' Certificate and
opinion of counsel (who may be counsel to the Company) stating that either (i)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (ii) since the date of the Indenture there has been
a change in the applicable Federal income tax law, to the effect that holders of
such Debt Securities will not recognize income, gain or loss for Federal income
tax purposes as a result of such defeasance and will be subject to Federal
income tax on the same amount and in the same manner and at the same times, as
would have been the case if such defeasance had not occurred. (Section 4.6 of
each Indenture.)
Defeasance of Certain Covenants and Certain Events of Default. Each
Indenture provides that the Company may omit to comply with certain covenants
applicable to the Debt Securities of or within any series and any such
non-compliance shall not constitute an event of default described in clause (c)
under the caption "Events of Default, Notice and Certain Rights on Default"
above, upon the deposit with the relevant Trustee, in trust, of money and/or
U.S. Government Obligations which through the payment of interest and principal
in respect thereof in accordance with their terms will provide money in an
amount sufficient to pay the principal of and each installment of interest on
such Debt Securities on the stated maturity of such payments in accordance with
the terms of such Indenture and such Debt Securities. The obligations of the
Company under such Indenture and such Debt Securities, other than with respect
to the covenants referred to above, and the Events of Default, other than the
Events of Default referred to above, shall remain in full force and effect.
(Sections 3.1 and 4.5 of each Indenture.) Such a trust may only be established
if, among other things, the Company has delivered to the relevant Trustee an
opinion of counsel (who may be counsel to the Company) to the effect that
holders of such Debt Securities will not recognize income, gain, or loss for
Federal income tax purposes as a result of such defeasance of certain covenants
and Events of Default and will be subject to Federal income tax on the same
amounts and in the same manner and at the same times, as would have been the
case if such deposit and defeasance had not occurred. (Section 4.6 of each
Indenture.)
In addition, with respect to the Subordinated Indenture, it is a
condition to defeasance and covenant defeasance that no default in the payment
of principal of (or premium, if any) or interest on any Senior Debt shall have
occurred or be continuing or no other Event of Default with respect to the
Senior Debt shall have occurred or be continuing and shall have resulted in such
Senior Debt becoming or being declared due and payable prior to the date it
would have become due and payable. (Section 4.6 of the Subordinated Indenture.)
In the event the Company exercises its option to omit compliance with
certain covenants of the Indenture with respect to such Debt Securities as
described in the preceding paragraphs and such Debt Securities are declared due
and payable because of the occurrence of any Event of Default other than an
Event of Default described in clause (c) under the caption "Events of Default,
Notice and Certain Rights on Default" above, the amount of money and U.S.
Government Obligations on deposit with the relevant Trustee will be sufficient
to pay amounts due on such Debt Securities at the time of their stated maturity
but may not be sufficient to pay amounts due on such Debt Securities at the time
of the acceleration resulting from such Event of Default. However, the Company
would remain liable for any such deficiency.
NOTICES
Notices to holders of registered Debt Securities will be given by mail
to the addresses of such holders as they may appear in the Register. (Section
1.6 of each Indenture.)
TITLE
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name a Debt Security is registered as the absolute
owner thereof (whether or not such Debt Security may be overdue) for the purpose
of receiving payment and for all other purposes. (Section 3.8 of each
Indenture.)
- 11 -
<PAGE>
GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and
construed in accordance with, the laws of the State of New York. (Section 1.11
of each Indenture.)
THE TRUSTEES
The Chase Manhattan Bank, formerly known as Chemical Bank, is the
Trustee under the Senior Indenture. State Street Bank and Trust Company, as
successor to Shawmut Bank Connecticut, National Association is the Trustee under
the Subordinated Indenture. The Company and its subsidiaries currently conduct
banking and other commercial relationships with The Chase Manhattan Bank and
State Street Bank and Trust Company in the ordinary course of business. The
Indentures contain certain limitations on the right of each Trustee, should it
become a creditor of the Company, to obtain payment of claims in certain cases,
or to realize for its own account on certain property received in respect of any
such claim as security or otherwise. Each Trustee will be permitted to engage in
certain other transactions; however, if it acquires any conflicting interest and
there is a default under the Debt Securities, it must eliminate such conflict or
resign.
PLAN OF DISTRIBUTION
The Company may sell any of the Debt Securities offered hereby in any
one or more of the following ways from time to time: (i) through agents, (ii) to
or through underwriters, (iii) through dealers and (iv) directly by the Company
to purchasers.
The distribution of the Debt Securities may be effected from time to
time in one or more transactions at a fixed price or prices, which may be
changed, at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices.
Offers to purchase Debt Securities may be solicited by agents
designated by the Company from time to time. Any such agent involved in the
offer or sale of the Offered Securities in respect of which this Prospectus is
delivered will be named, and any commissions payable by the Company to such
agent will be set forth, in the applicable Prospectus Supplement. Unless
otherwise indicated in such Prospectus Supplement, any such agent will be acting
on a reasonable best efforts basis for the period of its appointment. Any such
agent may be deemed to be an underwriter, as that term is defined in the
Securities Act, of the Debt Securities so offered and sold.
If Debt Securities are sold by means of an underwritten offering, the
Company will execute an underwriting agreement with an underwriter or
underwriters at the time an agreement for such sale is reached, and the names of
the specific managing underwriter or underwriters, as well as any other
underwriters, and the terms of the transaction, including commissions, discounts
and any other compensation of the underwriters and dealers, if any, will be set
forth in the Prospectus Supplement which will be used by the underwriters to
make resales of the Debt Securities in respect of which this Prospectus is
delivered to the public. If underwriters are utilized in the sale of the Debt
Securities in respect of which this Prospectus is delivered, the Debt Securities
will be acquired by the underwriters for their own account and may be resold
from time to time in one or more transactions, including negotiated
transactions, at fixed public offering prices or at varying prices determined by
the underwriter at the time of sale. Debt Securities may be offered to the
public either through underwriting syndicates represented by managing
underwriters or directly by the managing underwriters. If any underwriter or
underwriters are utilized in the sale of the Debt Securities, unless otherwise
indicated in the Prospectus Supplement, the underwriting agreement will provide
that the obligations of the underwriters are subject to certain conditions
precedent and that the underwriters with respect to a sale of Debt Securities
will be obligated to purchase all such Debt Securities if any are purchased.
If a dealer is utilized in the sale of the Debt Securities in respect
of which this Prospectus is delivered, the Company will sell such Debt
Securities to the dealer as principal. The dealer may then resell such Debt
Securities to the public at varying prices to be determined by such dealer at
the time of resale. Any such dealer may be deemed to be an underwriter, as such
term is defined in the Securities Act, of the Debt Securities so offered and
sold. The name of the dealer and the terms of the transaction will be set forth
in the Prospectus Supplement relating thereto.
Offers to purchase Debt Securities may be solicited directly by the
Company and the sale thereof may be made by the Company directly to
institutional investors or others, who may be deemed to be underwriters within
the meaning of the Securities Act with respect to any resale thereof. The terms
of any such sales will be described in the Prospectus Supplement relating
thereto.
Agents, underwriters and dealers may be entitled under relevant
agreements with the Company to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments which such agents, underwriters and dealers may be
required to make in respect thereof.
Each series of Debt Securities will be a new issue with no established
trading market. The Company may elect to list any series of Debt Securities on
an exchange, but the Company shall not be obligated to do so. It is possible
that one or more underwriters may make a market in a series of Debt Securities,
but will not be obligated to do so and may discontinue any market making at any
time without notice. Therefore, no assurance can be given as to the liquidity of
the trading market for the Debt Securities.
Agents, underwriters and dealers may be customers of, engage in
transactions with, or perform services for, the Company and its subsidiaries in
the ordinary course of business.
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<PAGE>
This Prospectus, together with the Prospectus Supplement, may also be
used by Donaldson, Lufkin and Jenrette Securities Corporation ("DLJSC") in
connection with offers and sales of Offered Securities related to market-making
transactions by and through DLJSC, at negotiated prices related to prevailing
market prices at the time of sale or otherwise. DLJSC may act as principal or
agent in such transactions.
LEGAL MATTERS
Unless otherwise indicated in the applicable Prospectus Supplement, the
validity of the Offered Securities will be passed upon for the Company by
Debevoise & Plimpton, New York, New York. Debevoise & Plimpton from time to time
provides legal services to the Company and its subsidiaries.
EXPERTS
The consolidated financial statements and consolidated financial
statement schedules of the Company as of December 31, 1996 and 1995 and for each
of the years in the three-year period ended December 31, 1996 have been
incorporated by reference herein and in the Registration Statement in reliance
upon the report of Price Waterhouse LLP, independent certified public
accountants, incorporated herein by reference, and upon the authority of said
firm as experts in accounting and auditing.
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<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED FEBRUARY 2, 1998
PROSPECTUS
THE EQUITABLE COMPANIES INCORPORATED
JUNIOR SUBORDINATED DEBT SECURITIES
EQ CAPITAL TRUST I
EQ CAPITAL TRUST II
EQ CAPITAL TRUST III
EQ CAPITAL TRUST IV
PREFERRED SECURITIES GUARANTEED TO THE EXTENT SET FORTH
HEREIN BY THE EQUITABLE COMPANIES INCORPORATED
The Equitable Companies Incorporated (the "Company") may from time to
time offer unsecured junior subordinated debt securities (the "Junior
Subordinated Debt Securities") consisting of debentures, notes or other
evidences of indebtedness in one or more series and in amounts, at prices and on
terms to be determined at or prior to the time of any such offering.
EQ Capital Trust I, EQ Capital Trust II, EQ Capital Trust III and EQ
Capital Trust IV (the "EQ Trusts"), each a statutory business trust formed under
the laws of the State of Delaware, may offer and sell, from time to time,
preferred securities representing undivided beneficial interests in the assets
of the respective EQ Trust ("Preferred Securities"). The payment of periodic
cash distributions ("distributions") with respect to Preferred Securities of
each of the EQ Trusts out of moneys held by the Property Trustee (as defined
herein) of each of the EQ Trusts, and payments on liquidation of each EQ Trust
and on redemption of Preferred Securities of such EQ Trust, will be guaranteed
by the Company as and to the extent described herein (each such guarantee a
"Preferred Securities Guarantee"). See "Description of the Preferred Securities
Guarantees." The Company's obligation under each Preferred Securities Guarantee
is an unsecured obligation of the Company and will rank (i) pari passu with the
Junior Subordinated Debt Securities, and (ii) senior to all capital stock now or
hereafter issued by the Company and to any guarantee now or hereafter entered
into by the Company in respect of any of its capital stock. Junior Subordinated
Debt Securities may be issued and sold from time to time in one or more series
by the Company to an EQ Trust, or a trustee of such trust, in connection with
the investment of the proceeds from the offering of Preferred Securities and
Common Securities (as defined herein) of such EQ Trust. The Junior Subordinated
Debt Securities purchased by an EQ Trust may be subsequently distributed pro
rata to holders of Preferred Securities and Common Securities in connection with
the dissolution of such EQ Trust, upon the occurrence of certain events as may
be described in an accompanying Prospectus Supplement.
Specific terms of the particular series of Junior Subordinated Debt
Securities of any series or the Preferred Securities of any EQ Trust in respect
of which this Prospectus is being delivered (the "Offered Securities") will be
set forth in an accompanying Prospectus Supplement (the "Prospectus Supplement")
with respect to such Offered Securities, which will describe, without limitation
and where applicable, the following: (i) in the case of Junior Subordinated Debt
Securities, the specific designation, aggregate principal amount, denominations,
maturity, premium, if any, interest rate (which may be fixed or variable) or
method of calculating interest, if any, place or places where principal,
premium, if any, and interest, if any, will be payable, any terms of redemption,
any sinking fund provisions, the right of the Company, if any, to defer payment
of interest on the Junior Subordinated Debt Securities and the maximum length of
such deferral period, and any listing on a securities exchange, methods of
distribution and other specific terms of the offering; and (ii) in the case of
Preferred Securities, the specific designation, number of securities,
liquidation amount per security, initial public offering or purchase price, and
any listing on a securities exchange, distribution rate (or method of
calculation thereof), dates on which distributions shall be payable and dates
from which distributions shall accrue, voting rights (if any), any redemption or
sinking fund provisions, any other rights, preferences, privileges, limitations
or restrictions relating to the Preferred Securities and the terms upon which
the proceeds of the sale of the Preferred Securities shall be used to purchase a
specific series of Junior Subordinated Debt Securities of the Company.
The Offered Securities may be offered in amounts, at prices and on
terms to be determined at the time of offering. Any Prospectus Supplement
relating to any series of Offered Securities will contain information concerning
certain United States Federal income tax considerations applicable to the
Offered Securities. By separate prospectus, the form of which is included in the
Registration Statement
- 1 -
<PAGE>
of which this Prospectus is a part, the Company may offer from time to time debt
securities. The aggregate initial public offering price of the securities to be
offered by this Prospectus and such other prospectus shall not exceed
$1,000,000,000.
The Junior Subordinated Debt Securities will be unsecured and, because
the Company is a non-operating holding company, will be effectively subordinated
to all liabilities of the Company's subsidiaries, including liabilities under
contracts of insurance and annuities written by the Company's insurance
subsidiaries. Accordingly, holders of the Junior Subordinated Debt Securities
should look only to the assets of the Company for payments of interest and
principal. The Junior Subordinated Debt Securities will be subordinated in right
of payment to all Senior Debt (as defined herein) of the Company to the extent
described herein and in the Prospectus Supplement relating thereto. If so
specified in the applicable Prospectus Supplement, Junior Subordinated Debt
Securities of a series may be issued in whole or in part in the form of one or
more temporary or permanent global securities.
The Offered Securities may be offered directly through agents
designated from time to time, through dealers or through underwriters. Such
agents or underwriters may act alone or with other agents or underwriters. See
"Plan of Distribution." Any such agents, dealers or underwriters will be set
forth in a Prospectus Supplement. If an agent of the Company and/or any EQ
Trust, or a dealer or underwriter is involved in the offering of the Offered
Securities, the agent's commission, dealer's purchase price, underwriter's
discount and net proceeds to the Company or to the EQ Trust, as the case may be,
will be set forth in, or may be calculated from, the Prospectus Supplement. Any
underwriters, dealers or agents participating in the offering may be deemed
"underwriters" within the meaning of the Securities Act of 1933.
This Prospectus may not be used to consummate sales of Offered
Securities unless accompanied by a Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is _____________, 1998.
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<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). The registration
statement of which this Prospectus forms a part, as well as reports, proxy
statements and other information filed by the Company, may be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549, 7 World
Trade Center, 13th Floor, Suite 1300, New York, New York 10048; and Suite 1400,
Northwestern Atrium Center, 14th Floor, 500 West Madison Street, Chicago,
Illinois 60611. Copies of such material can be obtained at prescribed rates from
the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Judiciary Plaza, Washington, D.C. 20549. Such material may also be accessed
electronically by means of the Commission's home page on the Internet at
http://www.sec.gov. The Company's common stock, par value $0.01 per share (the
"Common Stock") is listed on the New York Stock Exchange, Inc. and reports and
other information concerning the Company can also be inspected at the office of
the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
This Prospectus constitutes a part of the Registration Statement on
Form S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") filed with the Commission under the Securities Act of 1933 (the
"Securities Act") with respect to the Offered Securities. This Prospectus does
not contain all of the information set forth in such Registration Statement,
certain parts of which are omitted in accordance with the rules and regulations
of the Commission. Reference is made to such Registration Statement and to the
exhibits relating thereto for further information with respect to the Company,
the EQ Trusts and the Offered Securities. Any statements contained herein
concerning the provisions of any document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission or incorporated by
reference herein are not necessarily complete, and in each instance reference is
made to the copy of such document so filed for a more complete description of
the matter involved. Each such statement is qualified in its entirety by such
reference.
No separate financial statements of any of the EQ Trusts have been
included or incorporated by reference herein. The Company and the EQ Trusts do
not consider that such financial statements would be material to holders of the
Preferred Securities because (i) all of the voting securities of each EQ Trust
will be owned, directly or indirectly, by the Company, a reporting company under
the Exchange Act, (ii) each of the EQ Trusts is a newly formed special purpose
entity, has no operating history, has no independent operations and is not
engaged in, and does not propose to engage in, any activity other than issuing
Trust Securities (as defined herein) representing undivided beneficial interests
in the assets of such EQ Trust and investing the proceeds thereof in Junior
Subordinated Debt Securities issued by the Company and (iii) the Company's
obligations described herein and in any accompanying Prospectus Supplement under
the Declaration (as defined herein) of an EQ Trust, the Preferred Securities
Guarantee with respect to the Preferred Securities issued by such EQ Trust, the
Junior Subordinated Debt Securities purchased by such EQ Trust and the related
Indenture, taken together, constitute a full and unconditional guarantee of
payments due on the Preferred Securities of such EQ Trust. See "The EQ Trusts,"
"Description of the Preferred Securities," "Description of the Preferred
Securities Guarantees" and "Description of the Junior Subordinated Debt
Securities." The EQ Trusts are statutory business trusts formed under the laws
of the State of Delaware. The Company, as of the date of this Prospectus,
beneficially owns all of the beneficial interests in each EQ Trust.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December
31, 1996, Quarterly Reports on Form 10-Q for the quarters ended March 31, June
30 and September 30, 1997, and the Current Report on Form 8-K dated July 10,
1997 previously filed by the Company with the Commission, are incorporated by
reference in this Prospectus.
All documents filed by the Company after the date of this Prospectus
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the termination of the offering of the Offered Securities offered hereby, shall
be deemed to be incorporated herein by reference and to be a part hereof from
the date of such documents. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statements as modified or superseded shall be deemed, except
as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy
of this Prospectus is delivered, upon written or oral request of such person, a
copy of any or all of the documents referred to above which have been or may be
incorporated by reference in this Prospectus (other than certain exhibits to
such documents). Requests for such documents should be directed to The Equitable
Companies Incorporated, 1290 Avenue of the Americas, New York, New York 10104,
Attention: Corporate Secretary (Telephone: (212) 314-3914).
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<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS, OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT, IN CONNECTION WITH ANY OFFERING
CONTEMPLATED HEREBY, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY, OR THE EQ
TRUSTS, OR ANY UNDERWRITER, AGENT OR DEALER. NEITHER THE DELIVERY OF THIS
PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR
THEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF.
NEITHER THIS PROSPECTUS NOR ANY PROSPECTUS SUPPLEMENT SHALL CONSTITUTE AN OFFER
TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES BY ANYONE IN ANY
JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH
THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANY
PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
- 4 -
<PAGE>
THE EQUITABLE
For the purpose of this Prospectus, the term "The Equitable" refers to
The Equitable Companies Incorporated (the "Company") and its subsidiaries.
The Equitable is a diversified financial services organization serving
a broad spectrum of insurance, investment management and investment banking
customers. The Equitable Life Assurance Society of the United States ("Equitable
Life"), a subsidiary of the Company, was established in the State of New York in
1859. For more than 100 years it has been among the largest life insurance
companies in the United States. Equitable Life and its subsidiaries distribute a
variety of insurance, annuity and investment products.
At September 30, 1997, the Company's holdings in its investment
subsidiaries included an approximately 72% interest in Donaldson, Lufkin &
Jenrette, Inc. ("DLJ") and an approximately 58% interest in Alliance Capital
Management L.P. ("Alliance"). The Company's investment subsidiaries provide
investment management and investment banking services to institutional and
individual clients, including the Company's insurance subsidiaries.
AXA is the Company's largest stockholder, beneficially owning at
September 30, 1997 approximately 59% of the outstanding shares of common stock,
par value $.01, of the Company (the "Common Stock"). The Company is a Delaware
corporation with its principal headquarters located at 1290 Avenue of the
Americas, New York, New York 10104 (Telephone: (212) 554-1234).
USE OF PROCEEDS
Each EQ Trust will use all proceeds received from the sale of its Trust
Securities to purchase Junior Subordinated Debt Securities from the Company.
Unless otherwise set forth in the applicable Prospectus Supplement,
proceeds from the sale of Junior Subordinated Debt Securities will be used by
the Company for general corporate purposes and initially may be temporarily
invested in short-term securities.
RATIOS OF EARNINGS
TO FIXED CHARGES AND EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the ratios of earnings to fixed charges
and earnings to combined fixed charges and preferred stock dividends for the
Company for the periods indicated.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
NINE MONTHS ENDED
YEARS ENDED DECEMBER 31, SEPTEMBER 30,
------------------------ -------------
1992 1993 1994 1995 1996 1997
--------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges (1).. 1.046 1.287 1.294 1.239 1.174 1.363
Ratio of earnings to combined fixed
charges and preferred stock
dividends (1)........................ 1.029 1.212 1.229 1.222 1.159 1.352
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) For purposes of determining the historical ratios of earnings to fixed
charges and of earnings to combined fixed charges and preferred stock
dividends, earnings consist of earnings from continuing operations before
Federal income taxes, minority interest and cumulative effect of accounting
change adjusted for (i) excess of equity in income of unconsolidated
investees over distributed income and (ii) equity in losses of
unconsolidated investees, plus fixed charges. Fixed charges consist of
interest expense on long- and short-term debt, amortization of deferred
debt expenses plus the portion of operating lease rentals, net of income
from subleases, representative of the interest factor. The inclusion of
Interest Credited to Policyholders' Account Balances in the ratios
presented above would not have a material effect on such ratios.
THE EQ TRUSTS
Each of EQ Capital Trust I, EQ Capital Trust II, EQ Capital Trust III
and EQ Capital Trust IV is a statutory business trust formed on January 16, 1998
under the Delaware Business Trust Act (the "Business Trust Act") pursuant to a
separate declaration of trust among the Trustees (as defined herein) of such EQ
Trust and the Company and the filing of a certificate of trust with the
Secretary of State of the State of Delaware. Such declaration will be amended
and restated in its entirety (as so amended and restated, the "Declaration")
substantially in the form filed as an exhibit to the Registration Statement of
which this Prospectus forms a part, as of the date the Preferred Securities of
such EQ Trust are initially issued. Each Declaration will be qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
This description summarizes the material terms of the Declarations and
is qualified in its entirety by reference to the form of Declaration, which has
been filed as an exhibit to the Registration Statement of which this Prospectus
is a part, and the Trust Indenture Act.
- 5 -
<PAGE>
TRUST SECURITIES
Upon issuance of any Preferred Securities by an EQ Trust, the holders
thereof will own all of the issued and outstanding Preferred Securities of such
EQ Trust. The Company will acquire securities representing common undivided
beneficial interests in the assets of each EQ Trust (the "Common Securities"
and, together with the Preferred Securities, the "Trust Securities") in an
amount equal to at least 3% of the total capital of such EQ Trust and will own,
directly or indirectly, all of the issued and outstanding Common Securities of
each EQ Trust. The Preferred Securities and the Common Securities will rank pari
passu with each other and will have equivalent terms; provided that (i) if a
Declaration Event of Default (as defined herein) under the Declaration of an EQ
Trust occurs and is continuing, the holders of Preferred Securities of such EQ
Trust will have a priority over holders of the Common Securities of such EQ
Trust with respect to payments in respect of distributions and payments upon
liquidation, redemption and maturity and (ii) holders of Common Securities have
the exclusive right (subject to the terms of the Declaration) to appoint, remove
or replace the Trustees and to increase or decrease the number of Trustees. Each
EQ Trust exists for the purpose of (a) issuing its Preferred Securities, (b)
issuing its Common Securities to the Company, (c) investing the gross proceeds
from the sale of the Trust Securities in Junior Subordinated Debt Securities of
the Company and (d) engaging in only such other activities as are necessary,
convenient or incidental thereto. The rights of the holders of the Preferred
Securities, including economic rights, rights to information and voting rights,
are set forth in the applicable Declaration, the Business Trust Act and the
Trust Indenture Act.
POWERS AND DUTIES OF TRUSTEES
The number of trustees (the "Trustees") of each EQ Trust shall
initially be five. Three of such Trustees (the "Regular Trustees") are
individuals who are employees or officers of the Company or its subsidiaries.
The fourth such trustee will be The Bank of New York, which is unaffiliated with
the Company and which will serve as the property trustee (the "Property
Trustee") and act as the indenture trustee for purposes of the Trust Indenture
Act. The fifth such trustee is an affiliate of The Bank of New York that has its
principal place of business in the State of Delaware (the "Delaware Trustee").
Pursuant to each Declaration, legal title to the Junior Subordinated Debt
Securities purchased by an EQ Trust will be held by the Property Trustee for the
benefit of the holders of the Trust Securities of such EQ Trust, and the
Property Trustee will have the power to exercise all rights, powers and
privileges under the Indenture (as defined under "Description of the Junior
Subordinated Debt Securities") with respect to the Junior Subordinated Debt
Securities. In addition, the Property Trustee will maintain exclusive control of
a segregated non-interest bearing bank account (the "Property Account") to hold
all payments in respect of the Junior Subordinated Debt Securities purchased by
an EQ Trust for the benefit of the holders of Trust Securities of such EQ Trust.
The Property Trustee will promptly make distributions to the holders of the
Trust Securities out of funds from the Property Account. The Preferred
Securities Guarantees are separately qualified under the Trust Indenture Act and
will be held by The Bank of New York, acting in its capacity as indenture
trustee with respect thereto, for the benefit of the holders of the applicable
Preferred Securities. As used in this Prospectus and any accompanying Prospectus
Supplement, the term "Property Trustee" with respect to an EQ Trust refers to
The Bank of New York acting either in its capacity as a Trustee under the
relevant Declaration and the holder of legal title to the Junior Subordinated
Debt Securities purchased by that Trust or in its capacity as indenture trustee
under, and the holder of, the applicable Preferred Securities Guarantee, as the
context may require. The Company, as the direct or indirect owner of all of the
Common Securities of each EQ Trust, will have the exclusive right (subject to
the terms of the related Declaration) to appoint, remove or replace Trustees and
to increase or decrease the number of Trustees, provided that the number of
Trustees shall be at least five and the majority of Trustees shall be Regular
Trustees. The term of an EQ Trust will be set forth in the Prospectus
Supplement, but may terminate earlier as provided in such Declaration.
The duties and obligations of the Trustees of an EQ Trust shall be
governed by the Declaration of such EQ Trust. Under its Declaration, each EQ
Trust shall not, and the Trustees shall cause such EQ Trust not to, engage in
any activity other than in connection with the purposes of such EQ Trust or
other than as required or authorized by the related Declaration. In particular,
each EQ Trust shall not and the Trustees shall not (a) invest any proceeds
received by such EQ Trust from holding the Junior Subordinated Debt Securities
purchased by such EQ Trust but shall promptly distribute from the Property
Account all such proceeds to holders of Trust Securities pursuant to the terms
of the related Declaration and of the Trust Securities; (b) acquire any assets
other than as expressly provided in the related Declaration; (c) possess Trust
property for other than a Trust purpose; (d) make any loans, other than loans
represented by the Junior Subordinated Debt Securities; (e) possess any power or
otherwise act in such a way as to vary the assets of such EQ Trust or the terms
of its Trust Securities in any way whatsoever; (f) issue any securities or other
evidences of beneficial ownership of, or beneficial interests in, such EQ Trust
other than its Trust 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 Indenture Trustee (as defined under "Description of the
Junior Subordinated Debt Securities") with respect to the Junior Subordinated
Debt Securities deposited in that EQ Trust as trust assets or upon the Property
Trustee of that EQ Trust with respect to its Preferred Securities, (ii) waive
any past default that is waivable under the Indenture or the Declaration, (iii)
exercise any right to rescind or annul any declaration that the principal of all
of the Junior Subordinated Debt Securities deposited in that EQ Trust as trust
assets shall be due and payable or (iv) consent to any amendment, modification
or termination of the Indenture or such Junior Subordinated Debt Securities or
the Declaration, in each case where such consent shall be required, unless in
the case of this clause (h) the Property Trustee shall have received a written
opinion of nationally recognized independent tax counsel recognized as expert in
such matters to the effect that such action will not cause such EQ Trust to fail
to be classified as a grantor trust for United States Federal income tax
purposes.
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BOOKS AND RECORDS
The books and records of each EQ Trust will be maintained at the
principal office of such EQ Trust and will be open for inspection by a holder of
Preferred Securities of such EQ Trust or his representative for any purpose
reasonably related to his interest in such EQ Trust during normal business
hours. Each holder of Preferred Securities will be furnished annually with
unaudited financial statements of the applicable EQ Trust as soon as available
after the end of such EQ Trust's fiscal year.
VOTING
Except as provided under the Business Trust Act, the Declaration and
the Trust Indenture Act, holders of Preferred Securities will have no voting
rights.
THE PROPERTY TRUSTEE
The Property Trustee, for the benefit of the holders of the Trust
Securities of an EQ Trust, is authorized under each Declaration to exercise all
rights under the Indenture with respect to the Junior Subordinated Debt
Securities deposited in such EQ Trust as trust assets, including its rights as
the holder of such Junior Subordinated Debt Securities to enforce the Company's
obligations under such Junior Subordinated Debt Securities upon the occurrence
of an Event of Default under the Indenture (as such terms are defined under
"Description of the Junior Subordinated Debt Securities," and such an Event of
Default, an "Indenture Event of Default"). The Property Trustee shall also be
authorized to enforce the rights of holders of Preferred Securities of an EQ
Trust under the related Preferred Securities Guarantee. If any EQ Trust's
failure to make distributions on the Preferred Securities of an EQ Trust is a
consequence of the Company's exercise of any right under the terms of the Junior
Subordinated Debt Securities deposited in such EQ Trust as trust assets to
extend the interest payment period for such Junior Subordinated Debt Securities,
the Property Trustee will have no right to enforce the payment of distributions
on such Preferred Securities until a Declaration Event of Default shall have
occurred. Holders of at least a majority in liquidation amount of the Preferred
Securities held by an EQ Trust will have the right to direct the Property
Trustee for that EQ Trust with respect to certain matters under the Declaration
for that EQ Trust and the related Preferred Securities Guarantee. If the
Property Trustee fails to enforce its rights under the Indenture or fails to
enforce the Preferred Securities Guarantee, to the extent permitted by
applicable law, any holder of Preferred Securities may institute a legal
proceeding against the Company to enforce such rights or the Preferred
Securities Guarantee, as the case may be. In addition, the holders of at least
25% in aggregate liquidation preference of the outstanding Preferred Securities
would have the right to directly institute proceedings for enforcement of
payment to such holders of principal of, or premium, if any, or interest on the
Junior Subordinated Debentures having a principal amount equal to the aggregate
liquidation preference of the Preferred Securities of such holders.
DISTRIBUTIONS
Pursuant to each Declaration, distributions on the Preferred Securities
of an EQ Trust must be paid on the dates payable to the extent that the Property
Trustee for that EQ Trust has cash on hand in the applicable Property Account to
permit such payment. The funds available for distribution to the holders of the
Preferred Securities of an EQ Trust will be limited to payments received by the
Property Trustee in respect of the Junior Subordinated Debt Securities that are
deposited in the EQ Trust as trust assets. If the Company does not make interest
payments on the Junior Subordinated Debt Securities deposited in an EQ Trust as
trust assets, the Property Trustee will not make distributions on the Preferred
Securities of such EQ Trust. Under the Declaration, if and to the extent the
Company does make interest payments on the Junior Subordinated Debt Securities
deposited in an EQ Trust as trust assets, the Property Trustee is obligated to
make distributions on the Trust Securities of such EQ Trust on a Pro Rata Basis
(as defined below). The payment of distributions on the Preferred Securities of
an EQ Trust is guaranteed by the Company on a subordinated basis as and to the
extent set forth under "Description of the Preferred Securities Guarantee." A
Preferred Securities Guarantee is a full and unconditional guarantee from the
time of issuance of the applicable Preferred Securities, but the Preferred
Securities Guarantee covers distributions and other payments on the applicable
Preferred Securities only if and to the extent that the Company has made a
payment to the Property Trustee of interest or principal on the Junior
Subordinated Debt Securities deposited in the EQ Trust as trust assets. As used
in this Prospectus, the term "Pro Rata Basis" shall mean pro rata to each holder
of Trust Securities of an EQ Trust according to the aggregate liquidation amount
of the Trust Securities of such EQ Trust held by the relevant holder in relation
to the aggregate liquidation amount of all Trust Securities of such EQ Trust
outstanding unless, in relation to a payment, a Declaration Event of Default
under the Declaration has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each holder of the
Preferred Securities of such EQ Trust pro rata according to the aggregate
liquidation amount of the Preferred Securities held by the relevant holder in
relation to the aggregate liquidation amount of all the Preferred Securities of
such EQ Trust outstanding, and only after satisfaction of all amounts owed to
the holders of such Preferred Securities, to each holder of Common Securities of
such EQ Trust pro rata according to the aggregate liquidation amount of such
Common Securities held by the relevant holder in relation to the aggregate
liquidation amount of all Common Securities of such EQ Trust outstanding.
DECLARATION EVENTS OF DEFAULT
If an Indenture Event of Default occurs and is continuing with respect
to Junior Subordinated Debt Securities deposited in an EQ Trust as trust assets,
an Event of Default under the Declaration (a "Declaration Event of Default") of
such EQ Trust will occur and be continuing with respect to any outstanding Trust
Securities of such EQ Trust. In such event, each Declaration provides that the
holders of
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Common Securities of such EQ Trust will be deemed to have waived any such
Declaration Event of Default with respect to the Common Securities until all
Declaration Events of Default with respect to the Preferred Securities of such
EQ Trust have been cured or waived. Until all such Declaration Events of Default
with respect to the Preferred Securities of such EQ Trust have been so cured or
waived, the Property Trustee will be deemed to be acting solely on behalf of the
holders of the Preferred Securities of such EQ Trust and only the holders of
such Preferred Securities will have the right to direct the Property Trustee
with respect to certain matters under such Declaration and consequently under
the Indenture. In the event that any Declaration Event of Default with respect
to the Preferred Securities of such EQ Trust is waived by the holders of the
Preferred Securities of such EQ Trust as provided in the Declaration, the
holders of Common Securities pursuant to such Declaration have agreed that such
waiver also constitutes a waiver of such Declaration Event of Default with
respect to the Common Securities for all purposes under the Declaration without
any further act, vote or consent of the holders of the Common Securities.
RECORD HOLDERS
Each Declaration provides that the Trustees of such EQ Trust may treat
the person in whose name a certificate representing its Preferred Securities is
registered on the books and records of such EQ Trust as the sole holder thereof
and of the Preferred Securities represented thereby for purposes of receiving
distributions and for all other purposes and, accordingly, shall not be bound to
recognize any equitable or other claim to or interest in such certificate or in
the Preferred Securities represented thereby on the part of any person, whether
or not such EQ Trust shall have actual or other notice thereof. Preferred
Securities will be issued in fully registered form. Unless otherwise specified
in a Prospectus Supplement, Preferred Securities will be represented by a global
certificate registered on the books and records of such EQ Trust in the name of
a depositary (the "Depositary") named in an accompanying Prospectus Supplement
or its nominee. Under each Declaration:
(i) such EQ Trust and the Trustees thereof shall be entitled to deal with
the Depositary (or any successor depositary) for all purposes, including
the payment of distributions and receiving approvals, votes or consents
under the related Declaration, and except as set forth in the related
Declaration with respect to the Property Trustee, shall have no obligation
to persons owning a beneficial interest in Preferred Securities ("Preferred
Security Beneficial Owners") registered in the name of and held by the
Depositary or its nominee; and
(ii) the rights of Preferred Security Beneficial Owners shall be exercised
only through the Depositary (or any successor depositary) and shall be
limited to those established by law and agreements between such Preferred
Security Beneficial Owners and the Depositary and/or its participants. With
respect to Preferred Securities registered in the name of and held by the
Depositary or its nominee, all notices and other communications required
under each Declaration shall be given to, and all distributions on such
Preferred Securities shall be given or made to, the Depositary (or its
successor).
The specific terms of the depositary arrangement with respect to the
Preferred Securities will be disclosed in the applicable Prospectus Supplement.
DEBTS AND OBLIGATIONS OF AN EQ TRUST
In the Indenture, the Company, in its capacity as issuer of the Junior
Subordinated Debt Securities, has agreed to pay for all debts and obligations
(other than with respect to the Trust Securities) and all costs and expenses of
the applicable EQ Trust, including the fees and expenses of its Trustees and any
taxes and all costs and expenses with respect thereto, to which such EQ Trust
may become subject, except for United States withholding taxes.
The business address of each EQ Trust is c/o The Equitable Companies
Incorporated, 1290 Avenue of the Americas, New York, New York 10104, telephone
number (212) 554-1234.
DESCRIPTION OF THE PREFERRED SECURITIES
Each EQ Trust may issue, from time to time, only one series of
Preferred Securities having terms described in the Prospectus Supplement
relating thereto. The Declaration of each EQ Trust authorizes the Regular
Trustees of such EQ Trust to issue on behalf of such EQ Trust one series of
Preferred Securities. Each Declaration will be qualified as an indenture under
the Trust Indenture Act. The Preferred Securities will have such terms,
including distributions, redemption, voting, liquidation rights and such other
preferred, deferred or other special rights or such restrictions as shall be set
forth in the related Declaration or made part of such Declaration by the Trust
Indenture Act. Reference is made to the Prospectus Supplement relating to the
Preferred Securities of an EQ Trust for specific terms, including (i) the
specific designation of such Preferred Securities, (ii) the number of Preferred
Securities issued by such EQ Trust, (iii) the annual distribution rate (or
method of calculation thereof) for Preferred Securities issued by such EQ Trust,
the date or dates upon which such distributions shall be payable and the record
date or dates for the payment of such distributions, (iv) whether distributions
on Preferred Securities issued by such EQ Trust shall be cumulative, and, in the
case of Preferred Securities having such cumulative distribution rights, the
date or dates or method of determining the date or dates from which
distributions on Preferred Securities issued by such EQ Trust shall be
cumulative, (v) the amount or amounts which shall be paid out of the assets of
such EQ Trust to the holders of Preferred Securities of such EQ Trust upon
voluntary or involuntary dissolution, winding-up or termination of such EQ
Trust, (vi) the obligation or right, if any, of such EQ Trust to purchase or
redeem Preferred Securities issued by such EQ Trust and the price or prices at
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which, the period or periods within which and the terms and conditions upon
which Preferred Securities issued by such EQ Trust shall or may be purchased or
redeemed, in whole or in part, pursuant to such obligation or right, (vii) the
voting rights, if any, of Preferred Securities issued by such EQ Trust in
addition to those required by law, including the number of votes per Preferred
Security and any requirement for the approval by the holders of Preferred
Securities, or of Preferred Securities issued by one or more EQ Trusts, or of
both, as a condition to specified actions or amendments to the Declaration of
such EQ Trust, and (viii) any other relevant rights, preferences, privileges,
limitations or restrictions of Preferred Securities issued by such EQ Trust
consistent with the Declaration of such EQ Trust or with applicable law. All
Preferred Securities offered hereby will be guaranteed by the Company as and to
the extent set forth below under "Description of the Preferred Securities
Guarantees." Certain United States Federal income tax considerations applicable
to any offering of Preferred Securities will be described in the Prospectus
Supplement relating thereto.
In connection with the issuance of Preferred Securities, each EQ Trust
will issue one series of Common Securities. The Declaration of each EQ Trust
authorizes the Regular Trustees of such trust to issue on behalf of such EQ
Trust one series of Common Securities having such terms including distributions,
redemption, voting, liquidation rights or such restrictions as shall be set
forth therein. The terms of the Common Securities issued by an EQ Trust will be
substantially identical to the terms of the Preferred Securities issued by such
EQ Trust and the Common Securities will rank pari passu, and payments will be
made thereon on a Pro Rata Basis with the Preferred Securities except that if a
Declaration Event of Default occurs and is continuing, the rights of the holders
of such Common Securities to payment in respect of distributions and payments
upon liquidation, redemption and maturity will be subordinated to the rights of
the holders of such Preferred Securities. Except in certain limited
circumstances, the Common Securities issued by an EQ Trust will also carry the
right to vote and to appoint, remove or replace any of the Trustees of that EQ
Trust. All of the Common Securities of an EQ Trust will be directly or
indirectly owned by the Company.
DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEES
Set forth below is a summary of information concerning the Preferred
Securities Guarantees that will be executed and delivered by the Company for the
benefit of the holders from time to time of Preferred Securities. Each Preferred
Security Guarantee will be separately qualified under the Trust Indenture Act
and will be held by The Bank of New York, acting in its capacity as indenture
trustee with respect thereto, for the benefit of holders of the Preferred
Securities of the applicable EQ Trust. The terms of each Preferred Securities
Guarantee will be those set forth in such Preferred Securities Guarantee and
those made part of such Guarantee by the Trust Indenture Act. This description
summarizes the material terms of the Preferred Securities Guarantees and is
qualified in its entirety by reference to the form of Preferred Securities
Guarantee, which is filed as an exhibit to the Registration Statement of which
this Prospectus forms a part, and the Trust Indenture Act. Section and Article
references used herein are references to the provisions of the form of Preferred
Securities Guarantee.
GENERAL
Pursuant to each Preferred Securities Guarantee, the Company will
irrevocably and unconditionally agree, to the extent set forth therein, to pay
in full, to the holders of the Preferred Securities issued by an EQ Trust, the
Guarantee Payments (as defined herein) (without duplication of amounts
theretofore paid by such EQ Trust), regardless of any defense, right of set-off
or counterclaim that such EQ Trust may have or assert. The following payments or
distributions with respect to Preferred Securities issued by an EQ Trust to the
extent not paid or made by such EQ Trust (the "Guarantee Payments"), will be
subject to the Preferred Securities Guarantee (without duplication): (i) any
accrued and unpaid distributions on such Preferred Securities, and the
redemption price, including all accrued and unpaid distributions to the date of
redemption, with respect to any Preferred Securities called for redemption by
such EQ Trust but if and only to the extent that in each case the Company has
made a payment to the related Property Trustee of interest or principal on the
Junior Subordinated Debt Securities deposited in such EQ Trust as trust assets
and (ii) upon a voluntary or involuntary dissolution, winding-up or termination
of such EQ Trust (other than in connection with the distribution of such Junior
Subordinated Debt Securities to the holders of Preferred Securities or the
redemption of all of the Preferred Securities upon the maturity or redemption of
such Junior Subordinated Debt Securities) the lesser of (a) the aggregate of the
liquidation amount and all accrued and unpaid distributions on such Preferred
Securities to the date of payment, to the extent such EQ Trust has funds
available therefor or (b) the amount of assets of such EQ Trust remaining
available for distribution to holders of such Preferred Securities in
liquidation of such EQ Trust. The Company's obligation to make a Guarantee
Payment may be satisfied by direct payment of the required amounts by the
Company to the holders of Preferred Securities or by causing the applicable EQ
Trust to pay such amounts to such holders.
The Preferred Securities Guarantee is a full and unconditional
guarantee from the time of issuance of the applicable Preferred Securities, but
the Preferred Securities Guarantee covers distributions and other payments on
such Preferred Securities only if and to the extent that the Company has made a
payment to the Property Trustee of interest or principal on the Junior
Subordinated Debt Securities deposited in the applicable EQ Trust as trust
assets. If the Company does not make interest or principal payments on the
Junior Subordinated Debt Securities deposited in the applicable EQ Trust as
trust assets, the Property Trustee will not make distributions of the Preferred
Securities of such EQ Trust and the EQ Trust will not have funds available
therefor.
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<PAGE>
The Company's obligations under the Declaration for each Trust, the
Preferred Securities Guarantee issued with respect to Preferred Securities
issued by that Trust, the Junior Subordinated Debt Securities purchased by that
Trust and the related Indenture (as defined below) in the aggregate will provide
a full and unconditional guarantee on a subordinated basis by the Company of
payments due on the Preferred Securities issued by that Trust.
CERTAIN COVENANTS OF THE COMPANY
Unless otherwise provided in the applicable Prospectus Supplement, in
each Preferred Securities Guarantee, the Company will covenant and agree that,
so long as any Preferred Securities issued by the applicable EQ Trust remain
outstanding, the Company will not declare or pay any dividends on, or redeem,
purchase, acquire or make any distribution, liquidation or guarantee payment
with respect to its capital stock, if at any time, (i) the Company shall have
failed to make any payment of interest, principal or premium on the related
Junior Subordinated Debt Securities when due (after giving effect to any grace
period for payment thereof as provided in Section 5.1 of the Indenture), (ii)
the Company shall have given notice of its election to defer payments of
interest on such Junior Subordinated Debt Securities held by such EQ Trust as
trust assets by extending the interest payment period as provided in the terms
of the Junior Subordinated Debt Securities and such period, or any extension
thereof, is continuing, or (iii) the Company shall be in default with respect to
its Guarantee Payments under the related Preferred Securities Guarantee;
provided, that the Company may (a) make redemptions, purchases, retirements,
acquisitions or distributions in shares of capital stock of the Company or
redemptions, purchases or acquisitions of shares of Common Stock of the Company
for purposes of any employee benefit plan or program of the Company or any
subsidiary and (b) pay accrued dividends (and cash in lieu of fractional shares)
upon the conversion of any preferred stock of the Company as may be outstanding
from time to time, in accordance with the terms of such stock. The term "capital
stock" shall include the Company's Common Stock and any issue of preferred stock
from time to time outstanding but shall not include any indebtedness of any
kind, whether or not convertible or exchangeable for shares of Common Stock or
preferred stock. In addition, so long as any Preferred Securities remain
outstanding, the Company has agreed (i) to remain the sole direct or indirect
owner of all of the outstanding Common Securities issued by the applicable EQ
Trust and shall not cause or permit the Common Securities to be transferred
except to the extent permitted by the related Declaration; provided that any
permitted successor of the Company under the Indenture may succeed to the
Company's ownership of the Common Securities issued by the applicable EQ Trust
and (ii) to use reasonable efforts to cause such EQ Trust to continue to be
treated as a grantor trust for United States Federal income tax purposes except
in connection with a distribution of Junior Subordinated Debt Securities.
(Section 6.1 of the Indenture.)
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes that do not adversely affect the
rights of holders of Preferred Securities (in which case no consent will be
required), each Preferred Securities Guarantee may be amended only with the
prior approval of the holders of not less than 66 2/3% in liquidation amount of
the outstanding Preferred Securities issued by the applicable EQ Trust. (Section
9.2 of the Indenture.) The manner of obtaining any such approval of holders of
such Preferred Securities will be set forth in an accompanying Prospectus
Supplement. All guarantees and agreements contained in a Preferred Securities
Guarantee shall bind the successors, assignees, receivers, trustees and
representatives of the Company and shall inure to the benefit of the holders of
the Preferred Securities of the applicable EQ Trust then outstanding. Except in
connection with a consolidation, merger or sale involving the Company that is
permitted under the Indenture, the Company may not assign its obligations under
any Preferred Securities Guarantee. (Section 9.1 of the Indenture.)
TERMINATION OF THE PREFERRED SECURITIES GUARANTEES
Each Preferred Securities Guarantee will terminate and be of no further
force and effect as to the Preferred Securities issued by the applicable EQ
Trust (a) upon full payment of the redemption price of all Preferred Securities
of such EQ Trust, (b) upon distribution of the Junior Subordinated Debt
Securities to the holders of the Preferred Securities of such EQ Trust in
exchange for all of the Preferred Securities issued by such EQ Trust, or (c)
upon full payment of the amounts payable upon liquidation of such EQ Trust.
Notwithstanding the foregoing, each Preferred Securities Guarantee will continue
to be effective or will be reinstated, as the case may be, if at any time any
holder of Preferred Securities issued by the applicable EQ Trust must restore
payment of any sums paid under such Preferred Securities or such Guarantee.
(Section 7.1 of the Indenture.)
STATUS OF THE PREFERRED SECURITIES GUARANTEES
The Company's obligations under each Preferred Securities Guarantee to
make the Guarantee Payments will constitute an unsecured obligation of the
Company and will rank (i) pari passu with the Junior Subordinated Debt
Securities, and (ii) senior to all capital stock now or hereafter issued by the
Company and to any guarantee now or hereafter entered into by the Company in
respect of any of its capital stock. The Company's obligations under each
Preferred Securities Guarantee will rank pari passu with each other Preferred
Securities Guarantee. (Section 6.2) The Preferred Securities Guarantee will be
unsecured and, because the Company is a non-operating holding company, will be
effectively subordinated to all liabilities of the Company's subsidiaries,
including liabilities under contracts of insurance and annuities written by the
Company's insurance subsidiaries. Accordingly, holders of the Preferred
Securities Guarantees should look only to the assets of the Company for payment
of the Guarantee Payments. Each Declaration provides that each holder of
Preferred Securities issued by the applicable EQ Trust by acceptance thereof
agrees to the subordination provisions and other terms of the related Preferred
Securities Guarantee.
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Each Preferred Securities Guarantee will constitute a guarantee of
payment and not of collection (that is, the guaranteed party may institute a
legal proceeding directly against the guarantor to enforce its rights under the
guarantee without first instituting a legal proceeding against any other person
or entity). Each Preferred Securities Guarantee will be deposited with The Bank
of New York, as indenture trustee, to be held for the benefit of the holders of
the Preferred Securities issued by the applicable EQ Trust. The Bank of New York
shall enforce the Preferred Securities Guarantee on behalf of the holders of the
Preferred Securities issued by the applicable EQ Trust. The holders of not less
than a majority in aggregate liquidation amount of the Preferred Securities
issued by the applicable EQ Trust have the right to direct the time, method and
place of conducting any proceeding for any remedy available in respect of the
related Preferred Securities Guarantee, including the giving of directions to
The Bank of New York. If The Bank of New York fails to enforce such Preferred
Securities Guarantee as above provided, any holder of Preferred Securities
issued by the applicable EQ Trust may institute a legal proceeding directly
against the Company to enforce its rights under such Preferred Securities
Guarantee, without first instituting a legal proceeding against the applicable
EQ Trust or any other person or entity.
MISCELLANEOUS
The Company will be required to provide annually to The Bank of New
York a statement as to the performance by the Company of certain of its
obligations under the Preferred Securities Guarantees and as to any default in
such performance. The Company is required to file annually with The Bank of New
York an officer's certificate as to the Company's compliance with all conditions
under Preferred Securities Guarantees. (Section 2.4 of the Indenture.)
The Bank of New York, prior to the occurrence of a default, undertakes
to perform only such duties as are specifically set forth in the applicable
Preferred Securities Guarantee and, after default with respect to a Preferred
Securities Guarantee, shall exercise the same degree of care as a prudent
individual would exercise in the conduct of his or her own affairs. Subject to
such provision, The Bank of New York is under no obligation to exercise any of
the powers vested in it by a Preferred Securities Guarantee at the request of
any holder of Preferred Securities unless it is offered reasonable indemnity
against the costs, expenses and liabilities that might be incurred thereby.
(Section 3.2 of the Indenture.)
GOVERNING LAW
The Preferred Securities Guarantees will be governed by, and construed
in accordance with, the laws of the State of New York.
DESCRIPTION OF THE JUNIOR SUBORDINATED DEBT SECURITIES
The Junior Subordinated Debt Securities offered hereby are to be issued
in one or more series under the Junior Subordinated Indenture (the "Indenture")
to be entered into between the Company and The Bank of New York, as trustee (the
"Trustee"), the form of which has been filed as an exhibit to the Registration
Statement of which this Prospectus forms a part.
The statements herein relating to the Junior Subordinated Debt
Securities and the following summaries of certain provisions of the Indenture do
not purport to be complete and are subject to, and are qualified in their
entirety by reference to, all the provisions of the Indenture (as it may be
amended or supplemented from time to time), and the Trust Indenture Act.
Whenever particular sections or defined terms of the Indenture (as it may be
amended or supplemented from time to time) are referred to herein or in a
Prospectus Supplement, such sections or defined terms are incorporated herein or
therein by reference.
GENERAL
The Junior Subordinated Debt Securities will be unsecured obligations
of the Company and will be subordinate and junior in right of payment to the
extent and in the manner set forth in the Indenture to all Senior Debt (as
defined below) of the Company. As of September 30, 1997, the Company had $589.0
million aggregate principal amount of Senior Debt outstanding, and no Junior
Subordinated Debt Securities were outstanding. As a non-operating holding
company most of the assets of the Company are owned by its subsidiaries.
Accordingly, the Junior Subordinated Debt Securities will be effectively
subordinated to all existing and future liabilities of the Company's
subsidiaries, including liabilities under contracts of insurance and annuities
written by the Company's insurance subsidiaries, and holders of Junior
Subordinated Debt Securities should look only to the assets of the Company for
payments of interest and principal. The Indenture does not limit the aggregate
amount of Junior Subordinated Debt Securities which may be issued thereunder.
Except as otherwise provided in the applicable Prospectus Supplement, the
Indenture, as it applies to any series of Junior Subordinated Debt Securities,
also does not limit the amount of other secured or unsecured debt which may be
issued or incurred by the Company. See "--Subordination under the Junior
Subordinated Indenture" and the Prospectus Supplement relating to any offering
of Junior Subordinated Debt Securities.
The Junior Subordinated Debt Securities will be issuable in one or more
series pursuant to an indenture supplemental to the Indenture, or a resolution
of the Company's Board of Directors or a committee thereof. (Section 3.1 of the
Indenture.)
Reference is made to the applicable Prospectus Supplement which will
accompany this Prospectus for a description of the specific series of Junior
Subordinated Debt Securities being offered thereby, including: (1) the title of
such Junior Subordinated Debt Securities; (2) any limit upon the aggregate
principal amount of such Junior Subordinated Debt Securities; (3) the date or
dates on which the principal of and premium, if any, on such Junior Subordinated
Debt Securities will mature or the
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method of determining such date or dates; (4) the rate or rates (which may be
fixed or variable) at which such Junior Subordinated Debt Securities will bear
interest, if any, or the method of calculating such rate or rates; (5) the date
or dates from which interest, if any, will accrue or the method by which such
date or dates will be determined; (6) the date or dates on which interest, if
any, will be payable, the right, if any, of the Company to defer or extend an
interest payment date and the duration of such deferral or extension and the
record date or dates therefor; (7) the place or places where principal of,
premium, if any, and interest, if any, on such Junior Subordinated Debt
Securities will be payable; (8) the period or periods within which, the price or
prices at which, and the terms and conditions upon which, such Junior
Subordinated Debt Securities may be redeemed, in whole or in part, at the option
of the Company; (9) the obligation, if any, of the Company to redeem or purchase
such Junior Subordinated Debt Securities pursuant to any sinking fund or
analogous provisions or upon the happening of a specified event or at the option
of a Holder thereof and the period or periods within which, the price or prices
at which and the other terms and conditions upon which, such Junior Subordinated
Debt Securities shall be redeemed or purchased, in whole or in part, pursuant to
such obligation; (10) the denominations in which such Junior Subordinated Debt
Securities are authorized to be issued; (11) if the amount of principal of, or
any premium or interest on, any of such Junior Subordinated Debt Securities may
be determined with reference to an index or pursuant to a formula, the manner in
which such amounts will be determined; (12) if other than the principal amount
thereof, the portion of the principal amount of such Junior Subordinated Debt
Securities which will be payable upon declaration of the acceleration of the
maturity thereof or the method by which such portion shall be determined; (13)
any addition to, or modification or deletion of, any Event of Default or any
covenant of the Company specified in the Indenture; (14) the application, if
any, of such means of defeasance or covenant defeasance as may be specified for
such Junior Subordinated Debt Securities; (15) whether such Junior Subordinated
Debt Securities are to be issued in whole or in part in the form of one or more
temporary or permanent global securities and, if so, the identity of the
depository for such global security or securities; (16) the relative degree to
which such Junior Subordinated Debt Securities of the series shall be senior to
or be subordinated to other series of such Junior Subordinated Debt Securities
in right of payment, whether such other series of Junior Subordinated Debt
Securities are outstanding or not; and (17) any other terms not inconsistent
with the terms of the Indenture. (Section 3.1 of the Indenture.) Unless
otherwise specified in the applicable Prospectus Supplement, the Junior
Subordinated Debt Securities will not be listed on any securities exchange.
Unless otherwise specified in the applicable Prospectus Supplement,
Junior Subordinated Debt Securities will be issued in fully registered form
without coupons in denominations of $25 or any integral multiples of $25.
(Section 3.2 of the Indenture.)
Junior Subordinated Debt Securities may be sold at a substantial
discount below their stated principal amount, bearing no interest or interest at
a rate which at the time of issuance is below market rates. Certain Federal
income tax consequences and special considerations applicable to any such Junior
Subordinated Debt Securities will be described in the applicable Prospectus
Supplement.
If any index is used to determine the amount of payments of principal
of, premium, if any, or interest on any series of Junior Subordinated Debt
Securities, special Federal income tax, accounting and other considerations
applicable thereto will be described in the applicable Prospectus Supplement.
The general provisions of the Indenture do not afford holders of the
Junior Subordinated Debt Securities protection in the event of a highly
leveraged or other transaction involving the Company that may adversely affect
holders of the Junior Subordinated Debt Securities.
PAYMENT, REGISTRATION, TRANSFER AND EXCHANGE
Unless otherwise provided in the applicable Prospectus Supplement,
payments in respect of the Junior Subordinated Debt Securities will be made at
the office or agency of the Company maintained for that purpose as the Company
may designate from time to time, except that, at the option of the Company,
interest payments, if any, on Junior Subordinated Debt Securities in registered
form may be made (i) by checks mailed to the holders of Junior Subordinated Debt
Securities entitled thereto at their registered addresses or (ii) by wire
transfer to an account maintained by the person entitled thereto as specified in
the Register. (Sections 3.7(a) and 9.2 of the Indenture.) Unless otherwise
indicated in an applicable Prospectus Supplement, payment of any installment of
interest on Junior Subordinated Debt Securities in registered form will be made
to the person in whose name such Junior Subordinated Debt Security is registered
at the close of business on the regular record date for such interest. (Section
3.7(a) of the Indenture.) Notwithstanding the foregoing, so long as the Property
Trustee is the legal owner and record holder of the Junior Subordinated Debt
Securities, the payment of the principal of and interest (including Compounded
Interest, if any) on the Junior Subordinated Debt Securities held by the
Property Trustee will be made by the Company in immediately available funds on
the payment date therefor to the Property Account (as defined in the Declaration
of Trust) established and maintained by the Property Trustee pursuant to the
Declaration of Trust. Interest payable on any Junior Subordinated Debt Security
that is not punctually paid or duly provided for on any Interest Payment Date
will forthwith cease to be payable to the person in whose name such Junior
Subordinated Debt Security is registered on the relevant Record Date, and such
defaulted interest will instead be payable to the person in whose name such
Junior Subordinated Debt Security is registered on the special record date or
other specified date determined in accordance with the Indenture; provided,
however, that interest shall not be considered payable by the Company on any
Interest Payment Date falling within an Extension Period unless the Company has
elected to make a full or partial payment of interest accrued on the Junior
Subordinated Debt Securities on such Interest Payment Date.
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Unless otherwise provided in the applicable Prospectus Supplement,
Junior Subordinated Debt Securities in registered form will be transferable or
exchangeable at the agency of the Company maintained for such purpose as
designated by the Company from time to time. (Sections 3.5 and 9.2 of the
Indenture.) Junior Subordinated Debt Securities may be transferred or exchanged
without service charge, other than any tax or other governmental charge imposed
in connection therewith. (Section 3.5 of the Indenture.)
CERTAIN COVENANTS OF THE COMPANY APPLICABLE TO THE JUNIOR SUBORDINATED DEBT
SECURITIES
Limitation on Certain Transactions. Unless otherwise provided in the
applicable Prospectus Supplement, if Junior Subordinated Debt Securities are
issued to an EQ Trust in connection with the issuance of Trust Securities by
such EQ Trust, in the Indenture, the Company will covenant and agree that, so
long as any of such Junior Subordinated Debt Securities remain outstanding, the
Company will not declare or pay any dividends on, or redeem, purchase, acquire
or make any distribution, liquidation or guarantee payment with respect to its
capital stock, if at any time, (i) the Company shall have failed to make any
payment of interest, principal or premium on the related Junior Subordinated
Debt Securities when due (after giving effect to any grace period for payment
thereof as provided in Section 5.1 of the Indenture), (ii) the Company shall
have given notice of its election to defer payments of interest on such Junior
Subordinated Debt Securities held by such EQ Trust as trust assets by extending
the interest payment period as provided in the terms of the Junior Subordinated
Debt Securities and such period, or any extension thereof, is continuing, or
(iii) the Company shall be in default with respect to its Guarantee Payments
under the related Preferred Securities Guarantee; provided, that the Company may
(a) make redemptions, purchases, retirements, acquisitions or distributions in
shares of capital stock of the Company or redemptions, purchases or acquisitions
of shares of Common Stock of the Company, for purposes of any employee benefit
plan or program of the Company or any subsidiary and (b) pay accrued dividends
(and cash in lieu of fractional shares) upon the conversion of any preferred
stock of the Company as may be outstanding from time to time, in accordance with
the terms of such stock. The term "capital stock" shall include the Company's
Common Stock and any issue of preferred stock from time to time outstanding but
shall not include any indebtedness of any kind, whether or not convertible or
exchangeable for shares of Common Stock or preferred stock.
Consolidation, Merger or Sale by the Company. The Indenture permits the
Company to consolidate or merge with or into any other entity or entities, or to
sell, convey or lease all or substantially all of its property to any other
entity; provided, however, (i) the person (if other than the Company) formed by
such consolidation, or into which the Company is merged or which acquires or
leases substantially all of the property of the Company is a corporation or
other entity organized under the laws of the United States, any state thereof,
or the District of Columbia and expressly assumes the Company's obligations on
the Junior Subordinated Debt Securities and under the Indenture and (ii)
immediately after giving effect to such transaction, no Event of Default exists.
(Section 7.1 of the Indenture.)
SUBORDINATION UNDER THE JUNIOR SUBORDINATED INDENTURE
In the Indenture, the Company has covenanted and agreed that any Junior
Subordinated Debt Securities issued thereunder are subordinate and junior in
right of payment to all Senior Debt to the extent provided in the Indenture.
Upon any payment or distribution of assets to creditors upon any liquidation,
dissolution, winding up, reorganization, assignment for the benefit of
creditors, marshaling of assets or any bankruptcy, insolvency, debt
restructuring or similar proceedings in connection with any insolvency or
bankruptcy proceeding of the Company, the holders of Senior Debt will first be
entitled to receive payment in full of principal of (and premium, if any) and
interest, if any, on such Senior Debt before the holders of Junior Subordinated
Debt Securities will be entitled to receive or retain any payment in respect of
the principal of (and premium, if any) or interest, if any, on the Junior
Subordinated Debt Securities. (Section 12.2 of the Indenture.)
In the event of the acceleration of the maturity of any Junior
Subordinated Debt Securities, the holders of all Senior Debt outstanding at the
time of such acceleration will first be entitled to receive payment in full of
all amounts due thereon (including any amounts due upon acceleration) before the
holders of the Junior Subordinated Debt Securities will be entitled to receive
any payment in respect of the principal of (or premium, if any) or interest on
the Junior Subordinated Debt Securities. (Section 12.3 of the Indenture.)
No payments on account of principal (or premium, if any) or interest in
respect of the Junior Subordinated Debt Securities may be made if there shall
have occurred and be continuing a default in any payment with respect to Senior
Debt, or an event of default with respect to any Senior Debt resulting in the
acceleration of the maturity thereof, or if any judicial proceeding shall be
pending with respect to any such default. (Section 12.4 of the Indenture.)
"Debt" means with respect to any Person, whether recourse is to all or
a portion of the assets of such Person and whether or not contingent, (i) every
obligation of such Person for money borrowed; (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of such Person; and (vi) every
obligation of the type referred to in clauses (i) through (v) of another Person
and all dividends of another Person the payment of which, in either case, such
Person has guaranteed or for which such Person is responsible or liable,
directly or indirectly, as obligor or otherwise.
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"Senior Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or
not such claim for post-petition interest is allowed in such proceeding), on
Debt, whether incurred on or prior to the date of the Indenture or thereafter
incurred, unless, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such obligations are not
superior in right of payment to the Junior Subordinated Debt Securities or to
other Debt which is pari passu with, or subordinated to, the Junior Subordinated
Debt Securities; provided, however, that Senior Debt shall not be deemed to
include (a) any Debt of the Company which when incurred and without respect to
any election under Section 1111(b) of the Bankruptcy code, was without recourse
to the Company, (b) any Debt of the Company to any of its subsidiaries, (c) Debt
to any employee of the Company, (d) any liability for taxes, (e) Debt or other
monetary obligations to trade creditors created or assumed by the Company or any
of its subsidiaries in the ordinary course of business in connection with the
obtaining of materials or services and (f) the Junior Subordinated Debt
Securities. Indebtedness issued under the Company's Subordinated Indenture dated
October 22, 1994 between the Company and State Street Bank and Trust Company
constitutes Senior Debt for the purposes of the Indenture.
The Company is a non-operating holding company and most of the assets
of the Company are owned by its subsidiaries. Accordingly, the Junior
Subordinated Debt Securities will be effectively subordinated to all existing
and future liabilities of the Company's subsidiaries, including liabilities
under contracts of insurance and annuities written by the Company's insurance
subsidiaries, and holders of Junior Subordinated Debt Securities should look
only to the assets of the Company for payments of interest and principal.
The Indenture places no limitation on the amount of additional Senior
Debt that may be incurred by the Company. The Company expects from time to time
to incur additional indebtedness constituting Senior Debt. As of September 30,
1997, the Company had $589.0 million aggregate principal amount of Senior Debt
outstanding and no Junior Subordinated Debt Securities were outstanding.
The Indenture provides that the foregoing subordination provisions,
insofar as they relate to any particular issue of Junior Subordinated Debt
Securities, may be changed prior to such issuance. Any such change would be
described in the Prospectus Supplement relating to such Junior Subordinated Debt
Securities. (Section 3.1 of the Indenture.)
VOTING RIGHTS
The holders of the Junior Subordinated Debt Securities will have no
voting rights.
EVENTS OF DEFAULT, NOTICE AND CERTAIN RIGHTS ON DEFAULT
Except as otherwise provided in a Prospectus Supplement relating to the
Junior Subordinated Debt Securities of a particular series, Events of Default
with respect to Junior Subordinated Debt Securities of any series are defined in
the Indenture as (a) default in the payment of any interest on any Junior
Subordinated Debt Security of that series, and the continuance of such default
for a period of 30 days; (b) default in the payment of any installment of the
principal of or any premium on any Junior Subordinated Debt Security of that
series when due, whether at maturity, upon redemption, by declaration or
otherwise; (c) default in any material respect by the Company in the performance
of any other covenant or agreement contained in the Indenture under which the
Junior Subordinated Debt Securities of that series were issued and the
continuance of such default for a period of 90 days after written notice as
provided in such Indenture; and (d) certain events of bankruptcy, insolvency and
reorganization of the Company. (Section 5.1 of the Indenture.)
The Indenture provides that the Trustee will, within 90 days after the
occurrence of a Default with respect to the Junior Subordinated Debt Securities
of any series, give to the holders of the Junior Subordinated Debt Securities of
that series notice of all Defaults known to it unless such Default shall have
been cured or waived; provided that except in the case of a Default in payment
of principal (and premium, if any) or interest on the Junior Subordinated Debt
Securities of that series, the Trustee shall be protected in withholding such
notice if it in good faith determines that withholding such notice is in the
interests of all holders of the Junior Subordinated Debt Securities of that
series. (Section 6.6 of the Indenture.) "Default" means any event which is, or
after notice or passage of time, or both, would be, an Event of Default.
(Section 1.1 of the Indenture.)
The Indenture provides that, if an Event of Default specified therein
occurs with respect to the Junior Subordinated Debt Securities of any series and
is continuing, the Trustee for such series or the holders of 25% in aggregate
principal amount of all outstanding Junior Subordinated Debt Securities of that
series (calculated as provided for in the Indenture) may declare the principal
of (or, if the Junior Subordinated Debt Securities of that series are Original
Issue Discount Securities or Indexed Securities, such portion of the principal
amount specified in the Prospectus Supplement) and accrued interest, if any, on
all the Junior Subordinated Debt Securities of that series to be due and payable
(provided, with respect to any Junior Subordinated Debt Securities issued under
the Indenture, that the payment of principal and interest on such Junior
Subordinated Debt Securities shall remain subordinated to the extent provided in
Article 12 of the Indenture). (Section 5.2 of the Indenture.)
The Indenture provides that the holders of a majority in aggregate
principal amount of any series of Junior Subordinated Debt Securities by written
notice to the Trustee for such series may waive, on behalf of the holders of all
Junior Subordinated Debt Securities of such series, any past Default or Event of
Default with respect to that series and its consequences except a Default or
Event of Default in the payment of the principal of, premium, if any, or
interest, if any, on any Junior Subordinated Debt Security or with respect to a
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<PAGE>
covenant or provision that cannot be amended or modified without consent of the
holders of each series of Junior Subordinated Debt Securities adversely
affected. (Section 5.7 of the Indenture.)
The Indenture provides that, if a default or an Event of Default shall
have occurred and be continuing, the holders of not less than a majority in
aggregate principal amount of the Junior Subordinated Debt Securities of each
series affected (with each such series voting as a class) may, subject to
certain limited conditions, direct the time, method and place of conducting any
proceeding or any remedy available to the Trustee for such series, or exercising
any trust or power conferred on such Trustee. (Section 5.8 of the Indenture.)
The Indenture includes a covenant that the Company will file annually
with the Trustee a certificate as to the presence or absence of certain defaults
under the terms of the Indenture. (Section 9.6 of the Indenture.)
DEFEASANCE AND COVENANT DEFEASANCE
Defeasance and Discharge. The Indenture provides that the Company will
be discharged from any and all obligations in respect of the Junior Subordinated
Debt Securities of or within any series (except for certain obligations to
register the transfer or exchange of Junior Subordinated Debt Securities, to
replace stolen, lost or mutilated Junior Subordinated Debt Securities, to
maintain paying agencies and to hold monies for payment in trust) upon the
deposit with the Trustee, in trust, of money and/or U.S. Government Obligations
(as defined in the Indenture) which through the payment of interest and
principal in respect thereof in accordance with their terms will provide money
in an amount sufficient to pay the principal of and each installment of interest
(including interest accruing during any Extension Period specified at the time
of the establishment of the trust) on the Junior Subordinated Debt Securities on
the stated maturity of such payments in accordance with the terms of the
Indenture and Junior Subordinated Debt Securities. Such a trust may only be
established if, among other things, the Company delivers to the Trustee an
opinion of counsel (who may be counsel to the Company) stating that either (i)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (ii) since the date of the Indenture there has been
a change in the applicable Federal income tax law, to the effect that holders of
the Junior Subordinated Debt Securities will not recognize income, gain or loss
for Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amount and in the same manner and at
the same times, as would have been the case if such defeasance had not occurred.
If the Company establishes such a trust, it shall be permitted at the date of
establishment to extend the interest payment period for only one Extension
Period (including any Extension Period outstanding at the date of such
establishment).
Defeasance of Certain Covenants and Certain Events of Default. The
Indenture provides that the Company may omit to comply with certain covenants
applicable to the Junior Subordinated Debt Securities of or within any series
and any such noncompliance shall not constitute an event of default described in
clause (c) under the caption "Events of Default, Notice and Certain Rights on
Default" above, upon the deposit with the Trustee, in trust, of money and/or
U.S. Government Obligations which through the payment of interest and principal
in respect thereof in accordance with their terms will provide money in an
amount sufficient to pay the principal of and each installment of interest
(including interest accruing during any Extension Period specified at the time
of the establishment of the trust) on the Junior Subordinated Debt Securities on
the stated maturity of such payments in accordance with the terms of the
Indenture and the Junior Subordinated Debt Securities. The obligations of the
Company under the Indenture and the Junior Subordinated Debt Securities, other
than with respect to the covenants referred to above, and the Events of Default,
other than the Events of Default referred to above, shall remain in full force
and effect. Such a trust may only be established if, among other things, the
Company has delivered to the Trustee an opinion of counsel (who may be counsel
to the Company) to the effect that holders of the Junior Subordinated Debt
Securities will not recognize income, gain, or loss for Federal income tax
purposes as a result of such defeasance of certain covenants and Events of
Default and will be subject to Federal income tax on the same amounts and in the
same manner and at the same times, as would have been the case if such deposit
and defeasance had not occurred. If the Company establishes such a trust, it
shall be permitted at the date of establishment to extend the interest payment
period for only one Extension Period (including any Extension Period outstanding
at the date of such establishment).
In addition, with respect to the Indenture, it is a condition to
defeasance and covenant defeasance that no default in the payment of principal
of (or premium, if any) or interest on any Senior Debt shall have occurred or be
continuing or no other Event of Default with respect to the Senior Debt shall
have occurred or be continuing and shall have resulted in such Senior Debt
becoming or being declared due and payable prior to the date it would have
become due and payable. (Section 4.6 of the Indenture.)
In the event the Company exercises its option to omit compliance with
certain covenants of the Indenture with respect to the Junior Subordinated Debt
Securities as described in the preceding paragraphs and such Junior Subordinated
Debt Securities are declared due and payable because of the occurrence of any
Event of Default other than an Event of Default described in clause (c) under
the caption "Events of Default, Notice and Certain Rights on Default" above, the
amount of money and U.S. Government Obligations on deposit with the Trustee will
be sufficient to pay amounts due on the Junior Subordinated Debt Securities at
the time of their stated maturity but may not be sufficient to pay amounts due
on the Junior Subordinated Debt Securities at the time of the acceleration
resulting from such Event of Default.
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<PAGE>
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the
Trustee to enter into one or more supplemental indentures without the consent of
the holders of any of the Junior Subordinated Debt Securities in order (i) to
evidence the succession of another corporation to the Company and the assumption
of the covenants of the Company by a successor to the Company; (ii) to add to
the covenants of the Company or surrender any right or power of the Company;
(iii) to add additional Events of Default with respect to any series of Junior
Subordinated Debt Securities; (iv) to add to or change any provisions to such
extent as necessary to permit and facilitate the issuance of Junior Subordinated
Debt Securities in bearer form or to facilitate the issuance of Junior
Subordinated Debt Securities in global form; (v) to change or eliminate any
provision affecting only Junior Subordinated Debt Securities not yet issued;
(vi) to secure the Junior Subordinated Debt Securities; (vii) to establish the
form or terms of Junior Subordinated Debt Securities; (viii) to evidence and
provide for successor Trustees or to add or change any provisions to such extent
as necessary to permit and facilitate the appointment of a separate Trustee or
Trustees for specific series of Junior Subordinated Debt Securities; (ix) to
correct any defect or supplement any inconsistent provisions or to make any
other provisions with respect to matters or questions arising under such
Indenture, provided that any such action does not adversely affect the interests
of any holder of Junior Subordinated Debt Securities of any series then
Outstanding; (x) to cure any ambiguity or correct any mistake; or (xi) to modify
the subordination provisions thereof in a manner not adverse to the holders of
Junior Subordinated Debt Securities of any series then Outstanding. (Section 8.1
of the Indenture.)
The Indenture also contains provisions permitting the Company and the
Trustee, with the consent of the holders of a majority in aggregate principal
amount of the outstanding Junior Subordinated Debt Securities affected by such
supplemental indenture (with the Junior Subordinated Debt Securities of each
series voting as a class), to execute supplemental indentures adding any
provisions to or changing or eliminating any of the provisions of such Indenture
or any supplemental indenture or modifying the rights of the holders of Junior
Subordinated Debt Securities of such series, except that, without the consent of
the holder of each Junior Subordinated Debt Security so affected, no such
supplemental indenture may: (i) change the time for payment of principal or
premium, if any, or interest on any Junior Subordinated Debt Security; (ii)
reduce the principal on any Junior Subordinated Debt Security, or change the
manner in which the amount of any of the foregoing is determined; (iii) reduce
the interest rate, or the amount of premium, if any, payable upon the redemption
of any Junior Subordinated Debt Security; (iv) reduce the amount of principal
payable upon acceleration of the maturity of any Original Issue Discount or
Indexed Security; (v) change the currency or currency unit in which any Junior
Subordinated Debt Security or any premium or interest thereon is payable; (vi)
impair the right to institute suit for the enforcement of any payment on or with
respect to any Junior Subordinated Debt Security; (vii) reduce the percentage in
principal amount of the outstanding Junior Subordinated Debt Securities affected
thereby, the consent of whose holders is required for modification or amendment
of such Indenture or for waiver of compliance with certain provisions of the
Indenture or for waiver of certain defaults; (viii) change the obligation of the
Company to maintain an office or agency in the places and for the purposes
specified in such Indenture; (ix) modify the subordination provisions thereof in
a manner adverse to the holders of Junior Subordinated Debt Securities of any
series then Outstanding; or (x) modify the provisions relating to waiver of
certain defaults or any of the foregoing provisions. (Section 8.2 of the
Indenture.)
BOOK-ENTRY AND SETTLEMENT
If any Junior Subordinated Debt Securities of a series are represented
by one or more global securities (each, a "Global Security"), the applicable
Prospectus Supplement will describe the circumstances, if any, under which
beneficial owners of interests in any such Global Security may exchange such
interests for Junior Subordinated Debt Securities of such series and of like
tenor and principal amount in any authorized form and denomination. Principal of
and any premium and interest on a Global Security will be payable in the manner
described in the applicable Prospectus Supplement.
The specific terms of the depositary arrangement with respect to any
portion of a series of Junior Subordinated Debt Securities to be represented by
a Global Security will be described in the applicable Prospectus Supplement.
NOTICES
Notices to holders of registered Junior Subordinated Debt Securities
will be given by mail to the addresses of such holders as they may appear in the
Register. (Section 1.6 of the Indenture.)
TITLE
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name a Junior Subordinated Debt Security is
registered as the absolute owner thereof (whether or not such Junior
Subordinated Debt Security may be overdue) for the purpose of receiving payment
and for all other purposes. (Section 3.8 of the Indenture.)
GOVERNING LAW
The Indenture and the Junior Subordinated Debt Securities will be
governed by, and construed in accordance with, the laws of the State of New
York. (Section 1.11 of the Indenture.)
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THE TRUSTEE
The Bank of New York is the Trustee under the Indenture. The Company
and its subsidiaries currently conduct banking and other commercial
relationships with The Bank of New York in the ordinary course of business. The
Indenture contains certain limitations on the right of the Trustee, should it
become a creditor of the Company, to obtain payment of claims in certain cases,
or to realize for its own account on certain property received in respect of any
such claim as security or otherwise. The Trustee will be permitted to engage in
certain other transactions; however, if it acquires any conflicting interest and
there is a default under the Junior Subordinated Debt Securities, it must
eliminate such conflict or resign.
PLAN OF DISTRIBUTION
The Company may sell any of the Junior Subordinated Debt Securities,
and the EQ Trusts may sell the Preferred Securities offered hereby in any one or
more of the following ways from time to time: (i) through agents; (ii) to or
through underwriters; (iii) through dealers; and (iv) directly to purchasers.
The distribution of the Offered Securities may be effected from time to
time in one or more transactions at a fixed price or prices, which may be
changed, at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices.
Offers to purchase Offered Securities may be solicited by agents
designated by the Company and the EQ Trusts from time to time. Any such agent
involved in the offer or sale of the Offered Securities in respect of which this
Prospectus is delivered will be named, and any commissions payable by the
Company to such agent will be set forth, in the applicable Prospectus
Supplement. Unless otherwise indicated in such Prospectus Supplement, any such
agent will be acting on a reasonable best efforts basis for the period of its
appointment. Any such agent may be deemed to be an underwriter, as that term is
defined in the Securities Act, of the Offered Securities so offered and sold.
If Offered Securities are sold by means of an underwritten offering,
the Company and the issuing EQ Trust will execute an underwriting agreement with
an underwriter or underwriters at the time an agreement for such sale is
reached, and the names of the specific managing underwriter or underwriters, as
well as any other underwriters, and the terms of the transaction, including
commissions, discounts and any other compensation of the underwriters and
dealers, if any, will be set forth in the Prospectus Supplement which will be
used by the underwriters to make resales of the Offered Securities in respect of
which this Prospectus is delivered to the public. If underwriters are utilized
in the sale of the Offered Securities in respect of which this Prospectus is
delivered, the Offered Securities will be acquired by the underwriters for their
own account and may be resold from time to time on one or more transactions,
including negotiated transactions, at fixed public offering prices or at varying
prices determined by the underwriters at the time of sale. Offered Securities
may be offered to the public either through underwriting syndicates represented
by managing underwriters or directly by the managing underwriters. If any
underwriter or underwriters are utilized in the sale of the Offered Securities,
unless otherwise indicated in the Prospectus Supplement, the underwriting
agreement will provide that the obligations of the underwriters are subject to
certain conditions precedent and that the underwriters with respect to a sale of
Offered Securities will be obligated to purchase all such Offered Securities if
any are purchased.
If a dealer is utilized in the sale of the Offered Securities in
respect of which the Prospectus is delivered, the Company and the issuing EQ
Trust will sell such Offered Securities to the dealer as principal. The dealer
may then resell such Offered Securities to the public at varying prices to be
determined by such dealer at the time of resale. Any such dealer may be deemed
to be an underwriter, as such term is defined in the Securities Act, of the
Offered Securities so offered and sold. The name of the dealer and the terms of
the transaction will be set forth in the Prospectus Supplement relating thereto.
Offers to purchase Offered Securities may be solicited directly by the
Company and the issuing EQ Trust and the sale thereof may be made by the Company
and the issuing EQ Trust directly to institutional investors or others, who may
be deemed to be underwriters within the meaning of the Securities Act with
respect to any resale thereof. The terms of any such sales will be described in
the Prospectus Supplement relating thereto.
Agents, underwriters and dealers may be entitled under relevant
agreements with the Company and the issuing EQ Trust to indemnification by the
Company against certain liabilities, including liabilities under the Securities
Act, or to contribution with respect to payments which such agents, underwriters
and dealers may be required to make in respect thereof.
Each series of Offered Securities will be a new issue with no
established trading market. The Company and the issuing EQ Trust may elect to
list any series of Offered Securities on an exchange, but the Company and the
issuing EQ Trust shall not be obligated to do so. It is possible that one or
more underwriters may make a market in a series of Offered Securities, but will
not be obligated to do so and may discontinue any market making at any time
without notice. Therefore, no assurance can be given as to the liquidity of the
trading market for the Offered Securities.
Agents, underwriters and dealers may be customers of, engage in
transactions with, or perform services for, the Company and its subsidiaries in
the ordinary course of business.
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This Prospectus, together with the Prospectus Supplement, may also be
used by Donaldson, Lufkin & Jenrette Securities Corporation ("DLJSC") in
connection with offers and sales of Offered Securities related to market-making
transactions by and through DLJSC, at negotiated prices related to prevailing
market prices at the time of sale or otherwise. DLJSC may act as principal or
agent in such transactions.
LEGAL MATTERS
Unless otherwise indicated in the applicable Prospectus Supplement,
certain matters of Delaware law relating to the validity of the Preferred
Securities will be passed upon for the EQ Trusts and the Company by Richards,
Layton & Finger, P.A., Wilmington, Delaware, special Delaware counsel to the EQ
Trusts and the Company. The validity of the Preferred Securities Guarantees and
the Junior Subordinated Debt Securities and certain other matters will be passed
upon for the EQ Trusts and the Company by Debevoise & Plimpton, New York, New
York. Richards, Layton & Finger, P.A. and Debevoise & Plimpton from time to time
provide legal services to the Company and its subsidiaries.
EXPERTS
The consolidated financial statements and consolidated financial
statement schedules of the Company as of December 31, 1996 and 1995 and for each
of the years in the three-year period ended December 31, 1996 have been
incorporated by reference herein and in the Registration Statement in reliance
upon the report of Price Waterhouse LLP, independent certified public
accountants, incorporated herein by reference, and upon the authority of said
firm as experts in accounting and auditing.
- 18 -
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
ALTERNATE TO DEBT SECURITIES PROSPECTUS
SUBJECT TO COMPLETION, DATED FEBRUARY 2, 1998
PROSPECTUS
$1,000,000,000
THE EQUITABLE COMPANIES INCORPORATED
DEBT SECURITIES
The Equitable Companies Incorporated (the "Company") may from time to
time offer senior or subordinated debt securities (the "Senior Debt Securities"
and the "Subordinated Debt Securities" respectively, and collectively, the "Debt
Securities").
The Debt Securities offered pursuant to this Prospectus may be issued
in one or more series or issuances in U.S. dollars or in one or more foreign
currencies or currency units. By separate prospectus, the form of which is
included in the Registration Statement of which this Prospectus forms a part,
four Delaware statutory business trusts (the "Trusts"), which are wholly owned
subsidiaries of the Company, may from time to time severally offer preferred
securities guaranteed by the Company to the extent set forth therein and the
Company may offer from time to time junior subordinated debt securities to a
Trust. The aggregate initial public offering price of the securities to be
offered by this Prospectus and such other prospectus shall not exceed
$1,000,000,000 (or its equivalent in one or more foreign currencies, or currency
units).
Specific terms of the particular Debt Securities in respect of which
this Prospectus is being delivered (the "Offered Securities") will be set forth
in an accompanying Prospectus Supplement (the "Prospectus Supplement"), which
will describe, without limitation and where applicable, the following: the
ranking as senior or subordinated debt securities, the specific designation,
aggregate principal amount, denominations, maturity, premium, if any, interest
rate (which may be fixed or variable) or method of calculating interest, if any,
place or places where principal, premium, if any, and interest, if any, will be
payable, currency in which principal, premium, if any, and interest, if any,
will be payable, any terms of redemption, any sinking fund provisions, any
listing on a securities exchange, initial public offering or purchase price,
conversion rights, methods of distribution and other specific terms of the
offering.
The Debt Securities will be unsecured and, because the Company is a
non-operating holding company, will be effectively subordinated to all
liabilities of the Company's subsidiaries, including liabilities under contracts
of insurance and annuities written by the Company's insurance subsidiaries.
Accordingly, holders of the Debt Securities should look only to the assets of
the Company for payments of interest and principal. Unless otherwise specified
in a Prospectus Supplement, the Senior Debt Securities will rank equally with
all other unsecured and unsubordinated indebtedness of the Company. The
Subordinated Debt Securities will be subordinated in right of payment to all
Senior Debt (as defined herein) of the Company to the extent described herein
and in the Prospectus Supplement relating thereto.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
This Prospectus has been prepared for use by Donaldson, Lufkin &
Jenrette Securities Corporation ("DLJSC") in connection with offers and sales of
the Offered Securities which may be made by it from time to time in
market-making transactions at negotiated prices relating to prevailing market
prices at the time of sale. The Company has been advised by DLJSC that it
currently intends to make a market in the Offered Securities; however, it is not
obligated to do so. Any such market-making may be discontinued at any time, and
there is no assurance as to the liquidity of, or trading market for, the Offered
Securities. DLJSC may act as principal or agent in such
- 19 -
<PAGE>
transactions. See "Plan of Distribution." This Prospectus may not be used to
consummate sales of Offered Securities unless accompanied by a Prospectus
Supplement.
The date of this Prospectus is _________, 1998
- 20 -
<PAGE>
ALTERNATE TO DEBT SECURITIES PROSPECTUS
USE OF PROCEEDS
The Equitable Companies Incorporated will not receive any proceeds from
the sale of the Offered Securities in any market-making transaction with which
this Prospectus may be delivered.
Alt-2
- 21 -
<PAGE>
ALTERNATE TO DEBT SECURITIES PROSPECTUS
PLAN OF DISTRIBUTION
This Prospectus has been prepared for use by DLJSC in connection with
offers and sales of the Offered Securities in market-making transactions at
negotiated prices related to prevailing market prices at the time of the sale.
DLJSC may act as principal or agent in such transactions. DLJSC has advised the
Company that it currently intends to make a market in the Offered Securities,
but it is not obligated to do so and may discontinue any such market-making at
any time without notice. Accordingly, no assurance can be given as to the
liquidity of, or the trading market for, the Offered Securities.
Alt-3
- 22 -
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT IS
DECLARED EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
ALTERNATE TO JUNIOR SUBORDINATED DEBT SECURITIES, PREFERRED SECURITIES
AND RELATED GUARANTEES PROSPECTUS
SUBJECT TO COMPLETION, DATED FEBRUARY 2, 1998
PROSPECTUS
THE EQUITABLE COMPANIES INCORPORATED
JUNIOR SUBORDINATED DEBT SECURITIES
EQ CAPITAL TRUST I
EQ CAPITAL TRUST II
EQ CAPITAL TRUST III
EQ CAPITAL TRUST IV
PREFERRED SECURITIES GUARANTEED TO THE EXTENT SET FORTH
HEREIN BY THE EQUITABLE COMPANIES INCORPORATED
The Equitable Companies Incorporated (the "Company") may from time to
time offer unsecured junior subordinated debt securities (the "Junior
Subordinated Debt Securities") consisting of debentures, notes or other
evidences of indebtedness in one or more series and in amounts, at prices and on
terms to be determined at or prior to the time of any such offering.
EQ Capital Trust I, EQ Capital Trust II, EQ Capital Trust III and EQ
Capital Trust IV (the "EQ Trusts"), each a statutory business trust formed under
the laws of the State of Delaware, may offer and sell, from time to time,
preferred securities representing undivided beneficial interests in the assets
of the respective EQ Trust ("Preferred Securities"). The payment of periodic
cash distributions ("distributions") with respect to Preferred Securities of
each of the EQ Trusts out of moneys held by the Property Trustee (as defined
herein) of each of the EQ Trusts, and payments on liquidation of each EQ Trust
and on redemption of Preferred Securities of such EQ Trust, will be guaranteed
by the Company as and to the extent described herein (each such guarantee a
"Preferred Securities Guarantee"). See "Description of the Preferred Securities
Guarantees." The Company's obligation under each Preferred Securities Guarantee
is an unsecured obligation of the Company and will rank (i) pari passu with the
Junior Subordinated Debt Securities, and (ii) senior to all capital stock now or
hereafter issued by the Company and to any guarantee now or hereafter entered
into by the Company in respect of any of its capital stock. Junior Subordinated
Debt Securities may be issued and sold from time to time in one or more series
by the Company to an EQ Trust, or a trustee of such trust, in connection with
the investment of the proceeds from the offering of Preferred Securities and
Common Securities (as defined herein) of such EQ Trust. The Junior Subordinated
Debt Securities purchased by an EQ Trust may be subsequently distributed pro
rata to holders of Preferred Securities and Common Securities in connection with
the dissolution of such EQ Trust, upon the occurrence of certain events as may
be described in an accompanying Prospectus Supplement.
Specific terms of the Junior Subordinated Debt Securities of any series
or the Preferred Securities of any EQ Trust in respect of which this Prospectus
is being delivered (the "Offered Securities") will be set forth in an
accompanying Prospectus Supplement (the "Prospectus Supplement") with respect to
such Offered Securities, which will describe, without limitation and where
applicable, the following: (i) in the case of Junior Subordinated Debt
Securities, the specific designation, aggregate principal amount, denominations,
maturity, premium, if any, interest rate (which may be fixed or variable), or
method of calculating interest, if any, place or places where principal,
premium, if any, and interest, if any, will be payable, any terms of redemption,
any sinking fund provisions, initial public offering or purchase price,
conversion rights, the right of the Company, if any, to defer payment of
interest on the Junior Subordinated Debt Securities and the maximum length of
such deferral period, and any listing on a securities exchange, methods of
distribution and other specific terms of the offering; and (ii) in the case of
Preferred Securities, the specific designation, number of securities,
liquidation amount per security, initial public offering price, and any listing
on a securities exchange, distribution rate (or method of calculation thereof),
dates on which distributions shall be payable and dates from which distributions
shall accrue, voting rights (if any), any redemption or sinking fund provisions,
any other rights, preferences, privileges, limitations or restrictions relating
to the Preferred
- 23 -
<PAGE>
Securities and the terms upon which the proceeds of the sale of the Preferred
Securities shall be used to purchase a specific series of Junior Subordinated
Debt Securities of the Company.
The Junior Subordinated Debt Securities will be unsecured and, because
the Company is a non-operating holding company, will be effectively subordinated
to all liabilities of the Company's subsidiaries, including liabilities under
contracts of insurance and annuities written by the Company's insurance
subsidiaries. Accordingly, holders of the Junior Subordinated Debt Securities
should look only to the assets of the Company for payments of interest and
principal. The Junior Subordinated Debt Securities will be subordinated in right
of payment to all Senior Debt (as defined herein) of the Company to the extent
described herein and in the Prospectus Supplement relating thereto.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
This Prospectus has been prepared for use by Donaldson, Lufkin &
Jenrette Securities Corporation ("DLJSC") in connection with offers and sales of
the Offered Securities which may be made by it from time to time in
market-making transactions at negotiated prices relating to prevailing market
prices at the time of sale. The Company has been advised by DLJSC that it
currently intends to make a market in the Offered Securities; however, it is not
obligated to do so. Any such market making may be discontinued at any time, and
there is no assurance as to the liquidity of, or trading market for, the Offered
Securities. DLJSC may act as principal or agent in such transactions. See "Plan
of Distribution." This Prospectus may not be used to consummate sales of Offered
Securities unless accompanied by a Prospectus Supplement.
The date of this Prospectus is _________, 1998
Alt-5
- 24 -
<PAGE>
ALTERNATE TO JUNIOR SUBORDINATED DEBT SECURITIES, PREFERRED SECURITIES
AND RELATED GUARANTEES PROSPECTUS
USE OF PROCEEDS
Neither The Equitable Companies Incorporated nor the EQ Trusts will
receive any proceeds from the sale of the Offered Securities in any
market-making transaction with which this Prospectus may be delivered.
Alt-6
- 25 -
<PAGE>
ALTERNATE TO JUNIOR SUBORDINATED DEBT SECURITIES, PREFERRED SECURITIES
AND RELATED GUARANTEES PROSPECTUS
PLAN OF DISTRIBUTION
This Prospectus has been prepared for use by DLJSC in connection with
offers and sales of the Offered Securities in market-making transactions at
negotiated prices related to prevailing market prices at the time of the sale.
DLJSC may act as principal or agent in such transactions. DLJSC has advised the
Company that it currently intends to make a market in the Offered Securities,
but it is not obligated to do so and may discontinue any such market-making at
any time without notice. Accordingly, no assurance can be given as to the
liquidity of, or the trading market for, the Offered Securities.
Alt-7
- 26 -
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCES AND DISTRIBUTION
The following table sets forth the fees and expenses payable by the Company in
connection with the issuance and distribution of the securities other than
underwriting discounts and commissions. All of such expenses except the
Securities and Exchange Commission registration fee are estimated:
Securities and Exchange Commission registration fee............ $295,000
Blue Sky fees and expenses..................................... 30,000
Printing expense............................................... 55,000
Accounting fees and expenses................................... 45,000
Legal fees and expenses........................................ 100,000
Rating agency fees............................................. 350,000
Trustee's fees and expenses.................................... 31,000
Miscellaneous.................................................. 10,000
--------
Total $916,000
========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Reference is made to Section 102(b)(7) of the Delaware General Corporation Law
(the "DGCL"), which enables a corporation in its original certificate of
incorporation or an amendment thereto to eliminate or limit the personal
liability of a director for violations of the director's fiduciary duty, except
(i) for any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to Section
174 of the DGCL (providing for liability of directors for the unlawful payment
of dividends or unlawful stock purchases or redemptions) or (iv) for any
transaction from which a director derived an improper personal benefit.
Section 145 of the DGCL empowers the Company to indemnify, subject to the
standards set forth therein, any person in connection with any action, suit or
proceeding brought before or threatened by reason of the fact that the person
was a director, officer, employee or agent of such company, or is or was serving
as such with respect to another entity at the request of such company. The DGCL
also provides that the Company may purchase insurance on behalf of any such
director, officer, employee or agent.
The Company's Certificate of Incorporation and By-laws limit the personal
liability of directors to the fullest extent permitted by Section 102(b)(7) of
the DGCL and provide in effect for the indemnification by the Company of each
director and officer of the Company to the fullest extent permitted by
applicable law.
Each Declaration will provide for the Company to indemnify the Trustees of the
relevant Trust, to the fullest extent permitted by applicable law.
ITEM 16. EXHIBITS
See index to exhibits at E-1.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that the undertakings set forth in paragraph (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission
II-1
<PAGE>
by the registrants pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from the registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in this registration statement shall be
deemed to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 15 above or otherwise,
the registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, The Equitable
Companies Incorporated certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on this 27th day of
January, 1998.
THE EQUITABLE COMPANIES INCORPORATED
By: /s/ Edward D. Miller
----------------------
Name: Edward D. Miller
Title: President, Chief Executive Officer and Director
The registrant and each person whose signature appears below constitutes and
appoints Henry Q. Conley, Stuart L. Faust, Linda Galasso, Pauline Sherman and
Adam R. Spilka, and any agent for service named in this Registration Statement
and each of them, his, her or its true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him, her or it and in
his, her, or its name, place and stead, in any and all capacities, to sign and
file (i) any and all amendments (including post-effective amendments) to this
Registration Statement, with all exhibits thereto, and other documents in
connection therewith, and (ii) a Registration Statement, and any and all
amendments thereto, relating to the offering covered hereby filed pursuant to
Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he, she, or it 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 substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
II-3
<PAGE>
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
SIGNATURE TITLE DATE
- ------------------------------------------------------------------------------------------------------------------------------------
PRINCIPAL EXECUTIVE OFFICER:
<S> <C> <C>
/s/ Edward D. Miller President, Chief Executive Officer and Director January 27, 1998
- ---------------------------------------------
Edward D. Miller
PRINCIPAL FINANCIAL OFFICER:
/s/ Stanley B. Tulin Executive Vice President and Chief Financial January 27, 1998
- --------------------------------------------- Officer
Stanley B. Tulin
PRINCIPAL ACCOUNTING OFFICER:
/s/ Alvin H. Fenichel Senior Vice President and Controller January 27, 1998
- ---------------------------------------------
Alvin H. Fenichel
/s/ Claude Bebear Chairman of the Board and Director January 27, 1998
- ---------------------------------------------
Claude Bebear
/s/ Henri de Castries Vice-Chairman of the Board and Director January 27, 1998
- ---------------------------------------------
Henri de Castries
/s/ John S. Chalsty Director January 27, 1998
- ---------------------------------------------
John S. Chalsty
/s/ Francoise Colloc'h Director January 27, 1998
- ---------------------------------------------
Francoise Colloc'h
/s/ Joseph L. Dionne Director January 27, 1998
- ---------------------------------------------
Joseph L. Dionne
/s/ William T. Esrey Director January 27, 1998
- ---------------------------------------------
William T. Esrey
/s/ Jean-Rene Fourtou Director January 27, 1998
- ---------------------------------------------
Jean-Rene Fourtou
/s/ Jacques Friedmann Director January 27, 1998
- ---------------------------------------------
Jacques Friedmann
/s/ Donald J. Greene Director January 27, 1998
- ---------------------------------------------
Donald J. Greene
Director January 27, 1998
- ---------------------------------------------
Anthony J. Hamilton
/s/ John T. Hartley Director January 27, 1998
- ---------------------------------------------
John T. Hartley
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
SIGNATURE TITLE DATE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
/s/ John H. F. Haskell, Jr. Director January 27, 1998
- ---------------------------------------------
John H. F. Haskell, Jr.
/s/ Mary R. (Nina) Henderson Director January 27, 1998
- ---------------------------------------------
Mary R. (Nina) Henderson
/s/ W. Edwin Jarmain Director January 27, 1998
- ---------------------------------------------
W. Edwin Jarmain
/s/ Joseph J. Melone Director January 27, 1998
- ---------------------------------------------
Joseph J. Melone
/s/ Didier Pineau-Valencienne Director January 27, 1998
- ---------------------------------------------
Didier Pineau-Valencienne
/s/ George J. Sella, Jr. Director January 27, 1998
- ---------------------------------------------
George J. Sella, Jr.
/s/ Dave H. Williams Director January 27, 1998
- ---------------------------------------------
Dave H. Williams
</TABLE>
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, EQ Capital Trust I,
EQ Capital Trust II, EQ Capital Trust III and EQ Capital Trust IV each certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of New York, New York, on the 27th day of January, 1998.
EQ CAPITAL TRUST I
By: The Equitable Companies Incorporated,
as Sponsor
By: /s/ Stanley B. Tulin
------------------------
Name: Stanley B. Tulin
Title: Executive Vice President and
Chief Financial Officer
EQ CAPITAL TRUST II
By: The Equitable Companies Incorporated,
as Sponsor
By: /s/ Stanley B. Tulin
------------------------
Name: Stanley B. Tulin
Title: Executive Vice President and
Chief Financial Officer
EQ CAPITAL TRUST III
By: The Equitable Companies Incorporated,
as Sponsor
By: /s/ Stanley B. Tulin
------------------------
Name: Stanley B. Tulin
Title: Executive Vice President and
Chief Financial Officer
EQ CAPITAL TRUST IV
By: The Equitable Companies Incorporated,
as Sponsor
By: /s/ Stanley B. Tulin
------------------------
Name: Stanley B. Tulin
Title: Executive Vice President and
Chief Financial Officer
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT NO. DESCRIPTION TAG VALUE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
1.1 Form of Underwriting Agreement relating to the Debt Securities*............................
1.2 Form of Underwriting Agreement relating to the Preferred Securities*.......................
3.1 Restated Certificate of Incorporation of Company, filed as Exhibit 4.01(a) to
the Company's Form S-3 Registration Statement (No. 333-03224), and
incorporated herein by reference........................................................
3.2 Certificate of Designation of Cumulative Convertible Preferred Stock, Series D,
filed as Exhibit 4.01(e) to the Company's Form S-3 Registration Statement
(No. 333-03224), and incorporated herein by reference...................................
3.3 Amendment to Restated Certificate of Incorporation of the Company, dated as of
May 15, 1997, filed as Exhibit 4.01(g) to the Company's Form S-3
Registration Statement (No. 333-03224), and incorporated herein by reference............
3.4 By-Laws of the Company, filed as Exhibit 4.02 to the Company's Form S-3
Registration Statement (No. 333-03224), and incorporated herein by reference............
4.1 Indenture, dated as of December 1, 1993, from the Company to Chemical Bank, as
Trustee, filed as Exhibit 4.02 to the Company's Form S-4 Registration
Statement (No. 33-73102) dated December 17, 1993 and incorporated herein by
reference...............................................................................
4.2 First Supplemental Indenture, dated December 1, 1993, from the Company to
Chemical Bank, as Trustee, filed as Exhibit 4.03 to the Company's Form S-4
Registration Statement (No. 33-73102) dated December 17, 1993 and
incorporated herein by reference........................................................
4.3 Form of Second Supplemental Indenture, filed as Exhibit 4.04 to the Company's
Form S-4 Registration Statement (No. 33-73102) dated December 17, 1993 and
incorporated herein by reference........................................................
4.4 Form of Third Supplemental Indenture, dated as of December 8, 1994, from the
Company to Chemical Bank, as Trustee, filed as Exhibit 4.05 to the Company's
Current Report on Form 8-K dated December 1, 1994.......................................
4.5 Subordinated Indenture, dated as of October 22, 1994, between the Company and
Shawmut Bank Connecticut, National Association, as Trustee filed as Exhibit
4.10 to the Company's Current Report on Form 8-K dated December 19, 1994................
4.6 First Supplemental Indenture, dated as of October 22, 1994, between the Company
and Shawmut Bank Connecticut, National Association, as Trustee filed as Exhibit 4.11
to the Company's Current Report on Form 8-K dated December 19, 1994.....................
4.7 Form of Junior Subordinated Indenture between the Company and the Bank of
New York................................................................................ EX-4.7
4.8 Declaration of Trust of EQ Capital Trust I................................................. EX-4.8
4.9 Certificate of Trust of EQ Capital Trust I................................................. EX-4.9
4.10 Declaration of Trust of EQ Capital Trust II................................................ EX-4.10
4.11 Certificate of Trust of EQ Capital Trust II................................................ EX-4.11
4.12 Declaration of Trust of EQ Capital Trust III............................................... EX-4.12
4.13 Certificate of Trust of EQ Capital Trust III............................................... EX-4.13
4.14 Declaration of Trust of EQ Capital Trust IV................................................ EX-4.14
4.15 Certificate of Trust of EQ Capital Trust IV................................................ EX-4.15
4.16 Form of Amended and Restated Declaration of Trust for each of EQ Capital Trust
I, II, III, and IV...................................................................... EX-4.16
4.17 Form of Preferred Security (included in Exhibit 4.16)......................................
4.18 Form of Supplemental Indenture to be used in connection with issuance of Debt
Securities*.............................................................................
4.19 Form of Supplemental Indenture to be used in connection with issuance of Junior
Subordinated Debt Securities ........................................................... EX-4.19
4.20 Form of Junior Subordinated Debt Security (included in Exhibit 4.19).......................
4.21 Form of Guarantee with respect to Preferred Securities..................................... EX-4.21
5.1 Opinion of Debevoise & Plimpton............................................................ EX-5.1
5.2 Opinion of Richards, Layton & Finger, P.A. ....................................................... EX-5.2
</TABLE>
E-1
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT NO. DESCRIPTION TAG VALUE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
12.1 Computation of ratio of earnings to fixed charges and ratio of earnings to
combined fixed charges and preferred stock dividends.................................... EX-12.1
23.1 Consent of Debevoise & Plimpton (included in Exhibit 5.1)..................................
23.2 Consent of Richards, Layton & Finger (included in Exhibit 5.2).............................
23.3 Consent of Price Waterhouse LLP............................................................ EX-23.3
24.1 Powers of Attorney for the Company (see signature pages)...................................
24.2 Powers of Attorneys for The Equitable Companies Incorporated, as sponsor, to
sign the Registration Statement on behalf of EQ Capital Trust I, II, III and
IV (included in Exhibits 4.8, 4.10, 4.12 and 4.14, respectively)........................
25.1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of
The Chase Manhattan Bank, as Trustee, under the Senior Indenture........................ EX-25.1
25.2 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of
State Street Bank and Trust Company, as Trustee, under the Subordinated EX-25.2
Indenture...............................................................................
25.3 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of
The Bank of New York, as Trustee, under the Junior Subordinated Indenture............... EX-25.3
25.4 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of
The Bank of New York, as Trustee, with respect to the Amended and Restated
Declaration of Trust of EQ Capital Trust I.............................................. EX-25.4
25.5 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of
The Bank of New York, as Trustee, with respect to the Amended and Restated
Declaration of Trust of EQ Capital Trust II............................................. EX-25.5
25.6 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of
The Bank of New York, as Trustee, with respect to the Amended and Restated
Declaration of Trust of EQ Capital Trust III............................................ EX-25.6
25.7 Statement of Eligibility under the Trust Indenture Act of 1939, as amended of
The Bank of New York, as Trustee, with respect to the Amended and Restated
Declaration of Trust of EQ Capital Trust IV............................................. EX-25.7
25.8 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of
The Bank of New York, as Trustee, under the Preferred Securities Guarantee
of the Company with respect to the Preferred Securities of EQ Capital Trust I........... EX-25.8
25.9 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of
The Bank of New York, as Trustee, under the Preferred Securities Guarantee
of the Company with respect to the Preferred Securities of EQ Capital Trust II.......... EX-25.9
25.10 Statement of Eligibility under the Trust Indenture Act of 1939, as amended,
of The Bank of New York, as Trustee, under the Preferred Securities Guarantee
of the Company with respect to the Preferred Securities of EQ Capital Trust III......... EX-25.10
25.11 Statement of Eligibility under the Trust Indenture Act of 1939, as amended
of The Bank of New York, as Trustee under the Preferred Securities Guarantee of
the Company with respect to the Preferred Securities of EQ Capital Trust IV............. EX-25.11
</TABLE>
- -------------------
* Indicates document to be filed as an exhibit to a subsequent Current Report on
Form 8-K and incorporated herein by reference.
E-2
THE EQUITABLE COMPANIES INCORPORATED
to
THE BANK OF NEW YORK, Trustee
JUNIOR SUBORDINATED INDENTURE
Dated as of_________________, 199_
Providing for Issuance of
Junior Subordinated Debt Securities in Series
<PAGE>
Reconciliation and tie between Indenture, dated as of _______, 1998, and the
Trust Indenture Act of 1939, as amended.
Trust Indenture Act Indenture
of 1939 Section Section
- --------------- -------
310(a)(1) 6.12
(a)(2) 6.12
(a)(3) TIA
(a)(4) Not Applicable
(a)(5) TIA
(b) 6.10; 6.12; TIA
311(a) TIA
(b) TIA
312(a) 6.8
(b) TIA
(c) TIA
313(a) 6.7; TIA
(b) TIA
(c) TIA
(d) TIA
314(a) 9.5; 9.6; TIA
(b) Not Applicable
(c)(1) 1.2
(c)(2) 1.2
(c)(3) Not Applicable
(d) Not Applicable
(e) TIA
(f) TIA
315(a) 6.1
(b) 6.6
(c) 6.1
(d)(1) TIA
(d)(2) TIA
(d)(3) TIA
(e) TIA
316(a)(last sentence) 1.1
(a)(1)(A) 5.2; 5.8
(a)(1)(B) 5.7
(b) 5.9; 5.10
(c) TIA
<PAGE>
317(a)(1) 5.3
(a)(2) 5.4
(b) 9.3
318(a) 1.11
(b) TIA
(c) 1.11; TIA
- ---------------------
This reconciliation and tie section does not constitute part
of the Indenture.
58199
<PAGE>
58199
viivv
TABLE OF CONTENTS
Page
ARTICLE 1
Definitions and Other Provisions
of General Application
Section 1.1. Definitions . . . . . . . . . 1
Section 1.2. Compliance Certificates and
Opinions . . . . . . . . . 11
Section 1.3. Form of Documents Delivered to
Trustee . . . . . . . . . 12
Section 1.4. Acts of Holders . . . . . . . . 13
Section 1.5. Notices, etc., to Trustee and
Company . . . . . . . . . 14
Section 1.6. Notice to Holders; Waiver . . . . . . 14
Section 1.7. Headings and Table of Contents . . . . . 15
Section 1.8. Successor and Assigns . . . . . . . 16
Section 1.9. Separability . . . . . . . . 16
Section 1.10. Benefits of Indenture . . . . . . . 16
Section 1.11. Governing Law . . . . . . . . 16
Section 1.12. Legal Holidays . . . . . . . . 16
Section 1.13. Holders of Preferred Securities
as Third-Party Beneficiaries . . . . . 17
ARTICLE 2
Security Forms
Section 2.1. Forms Generally . . . . . . . . 18
Section 2.2. Form of Trustee's Certificate
of Authentication . . . . . . . . 18
Section 2.3. Securities in Global Form . . . . . . . 19
Section 2.4. Form of Legend for Securities
in Global Form . . . . . . . . 19
ARTICLE 3
The Securities
Section 3.1. Amount Unlimited; Issuable
in Series . . . . . . . . . 21
Section 3.2. Denominations . . . . . . . . . 25
Section 3.3. Execution, Authentication,
Delivery and Dating . . . . . . . . 25
Section 3.4. Temporary Securities . . . . . . . . 28
Section 3.5. Registration, Transfer and
Exchange . . . . . . . . . 29
Section 3.6. Replacement Securities . . . . . . . 32
Section 3.7. Payment of Interest; Interest
Rights Preserved . . . . . . . . 33
Section 3.8. Persons Deemed Owners . . . . . . . . 35
<PAGE>
Page
Section 3.9. Cancellation . . . . . . . . . 35
Section 3.10. Computation of Interest . . . . . . . 36
Section 3.11. CUSIP Numbers . . . . . . . . . 36
ARTICLE 4
Satisfaction, Discharge and Defeasance
Section 4.1. Termination of Company's
Obligations Under the Indenture . . . . 37
Section 4.2. Application of Trust Funds . . . . . 38
Section 4.3. Applicability of Defeasance
Provisions; Company's Option
to Effect Defeasance or Covenant
Defeasance . . . . . . . . 39
Section 4.4. Defeasance and Discharge . . . . . . 39
Section 4.5 Covenant Defeasance . . . . . . . . 40
Section 4.6. Conditions to Defeasance or
Covenant Defeasance . . . . . . . 41
Section 4.7. Deposited Money and Government
Obligations to Be Held in Trust . . . . 43
Section 4.8. Repayment to Company . . . . . . . 44
Section 4.9. Indemnity for Government
Obligations . . . . . . . . 44
ARTICLE 5
Defaults and Remedies
Section 5.1. Events of Default . . . . . . . . 45
Section 5.2. Acceleration; Rescission and
Annulment . . . . . . . . 46
Section 5.3. Collection of Indebtedness and
Suits for Enforcement by Trustee . . . . 47
Section 5.4. Trustee May File Proofs of Claim . . . . 47
Section 5.5. Trustee May Enforce Claims Without
Possession of Securities . . . . . . 47
Section 5.6. Delay or Omission Not Waiver . . . . . 48
Section 5.7. Waiver of Past Defaults . . . . . . 48
Section 5.8. Control by Majority . . . . . . . 48
Section 5.9. Limitation on Suits by Holders . . . . . 49
Section 5.10. Rights of Holders to Receive
Payment . . . . . . . . . 49
Section 5.11. Application of Money Collected . . . . . 50
Section 5.12. Restoration of Rights and
Remedies . . . . . . . . . 50
ii
<PAGE>
Page
Section 5.13. Rights and Remedies Cumulative . . . . . . 51
Section 5.14. Certain Rights of Holders of
Preferred Securities . . . . . . 51
ARTICLE 6
The Trustee
Section 6.1. Certain Duties and Responsibilities
of the Trustee . . . . . . . . . 53
Section 6.2. Rights of Trustee . . . . . . . . 53
Section 6.3. Trustee May Hold Securities . . . . . . 54
Section 6.4. Money Held in Trust . . . . . . . . 54
Section 6.5. Trustee's Disclaimer . . . . . . . . 54
Section 6.6. Notice of Defaults . . . . . . . . 54
Section 6.7. Reports by Trustee to Holders . . . . . 55
Section 6.8. Securityholder Lists . . . . . . . . 55
Section 6.9. Compensation and Indemnity . . . . . . 55
Section 6.10. Replacement of Trustee . . . . . . . 56
Section 6.11. Acceptance of Appointment by
Successor . . . . . . . . . . 58
Section 6.12. Eligibility; Disqualification . . . . . 60
Section 6.13. Merger, Conversion, Consolidation
or Succession to Business . . . . . 60
Section 6.14. Appointment of Authenticating
Agent . . . . . . . . . . 60
ARTICLE 7
Consolidation, Merger or Sale by the Company
Section 7.1. Consolidation, Merger or Sale of
Assets Permitted . . . . . . 63
ARTICLE 8
Supplemental Indentures
Section 8.1. Supplemental Indentures Without
Consent of Holders . . . . . . 64
Section 8.2. Supplemental Indentures With
Consent of Holders . . . . . . 65
Section 8.3. Compliance with Trust Indenture
Act . . . . . . . . . 67
Section 8.4. Execution of Supplemental
Indentures . . . . . . . . 67
Section 8.5. Effect of Supplemental Indentures . . . 67
Section 8.6. Reference in Securities to
Supplemental Indentures . . . . . 67
iii
<PAGE>
Page
ARTICLE 9
Covenants
Section 9.1. Payment of Principal, Premium, if
any, and Interest . . . . . . 68
Section 9.2. Maintenance of Office or Agency . . . 68
Section 9.3. Money for Securities Payments to Be
Held in Trust; Unclaimed Money . . 69
Section 9.4. Corporate Existence . . . . . . 70
Section 9.5. Reports by the Company . . . . 70
Section 9.6. Annual Review Certificate . . . . . 71
Section 9.7. Books of Record and Account . . . . 71
ARTICLE 10
Redemption
Section 10.1. Applicability of Article . . . . 73
Section 10.2. Election to Redeem; Notice to
Trustee . . . . . . . . 73
Section 10.3. Selection of Securities to Be
Redeemed . . . . . . . . 73
Section 10.4. Notice of Redemption . . . . . . 74
Section 10.5. Deposit of Redemption Price . . . 75
Section 10.6. Securities Payable on Redemption
Date . . . . . . . . 75
Section 10.7. Securities Redeemed in Part . . . . 76
ARTICLE 11
Sinking Funds
Section 11.1. Applicability of Article . . . . 76
Section 11.2. Satisfaction of Sinking Fund
Payments with Securities. . . . . 77
Section 11.3. Redemption of Securities for
Sinking Fund . . . . . . 77
ARTICLE 12
Subordination of Securities
Section 12.1. Securities Subordinate to Senior
Debt . . . . . . . . 78
Section 12.2. Payment Over of Proceeds Upon
Dissolution, Etc. . . . . . . 78
Section 12.3. Prior Payment to Senior Debt Upon
Acceleration of Securities . . . . 80
Section 12.4. No Payment When Senior Debt in
Default . . . . . . . . 80
Section 12.5. Payment Permitted If No Default . . . 81
iv
<PAGE>
Page
Section 12.6. Subrogation to Rights of Holders
of Senior Debt . . . . . . . 81
Section 12.7. Provisions Solely to Define
Relative Rights . . . . . . 82
Section 12.8. Trustee to Effectuate
Subordination . . . . . . . 82
Section 12.9. No Waiver of Subordination
Provisions . . . . . . . 83
Section 12.10. Notice to Trustee . . . . . . 83
Section 12.11. Reliance on Judicial Order
or Certificate of Liquidating Agent . . 83
Section 12.12. Trustee Not Fiduciary For Holders
of Senior Debt . . . . . . . 84
Section 12.13. Rights of Trustee as Holder of
Senior Debt; Preservation of
Trustee's Rights . . . . . . 84
Section 12.14. Article Applicable to Paying Agents. . . 84
Section 12.15. Defeasance of This Article 12 . . . . 84
58273
v
<PAGE>
INDENTURE, dated as of________________, 1998, from THE EQUITABLE
COMPANIES INCORPORATED, a Delaware corporation (the "Company"), to THE BANK OF
NEW YORK, Trustee, a New York banking corporation (the "Trustee").
Recitals
--------
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness ("Securities") to be issued
in one or more series as herein provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities:
I. ARTICLE 1
Definitions and Other Provisions
--------------------------------
of General Application
----------------------
Section 1.1. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles as in effect from time to time; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
<PAGE>
"Affiliate" of any specified Person means any Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Paying Agent or Registrar.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general circulation, in the
official language of the country of publication or in the English language,
customarily published on each Business Day whether or not published on
Saturdays, Sundays or holidays. Whenever successive publications in an
Authorized Newspaper are required hereunder they may be made (unless otherwise
expressly provided herein) on the same or different days of the week and in the
same or different Authorized Newspapers.
"Board" or "Board of Directors" means the Board of Directors of the
Company, or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution of the Board of
Directors, certified by the Secretary or an Assistant Secretary of the Company
to have been duly adopted by the Board of Directors and to be in full force and
effect on the date of the certificate, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment or particular
location are authorized or obligated by law, regulation or executive order to
close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under
2
<PAGE>
the Securities Exchange Act of 1934, or, if at any time after the execution of
this Indenture such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
"Common Securities" means the common undivided beneficial interests in
the assets of the applicable EQ Capital Trust.
"Company" means the party named as the Company in the first paragraph
of this Indenture until a successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter means such
successor.
"Company Order" and "Company Request" mean, respectively, a written
order or request signed in the name of the Company by two Officers, one of whom
must be the Chairman of the Board, the President, the chief financial officer,
the Treasurer, the Assistant Treasurer, the Controller or a Vice-President of
the Company.
"Corporate Trust Office" means the office of the Trustee in New York,
New York at which at any particular time its corporate trust business shall be
principally administered, which office at the date hereof is located at 101
Barclay Street, Floor 21 West, New York, New York 10286 Attention: Corp. Trust
Administration.
"Debt" means, with respect to any Person, whether recourse is to all or
a portion of the assets of such Person and whether or not contingent, (i) every
obligation of such Person for money borrowed; (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of such Person; and (vi) every
obligation of the type referred to in clauses (i) through (v) of another Person
and all dividends of another Person the payment of which, in either case, such
3
<PAGE>
Person has guaranteed or is responsible or liable, directly or indirectly, as
obligor or otherwise.
"Default" means any event which is, or after notice or passage of time,
or both, would be, an Event of Default.
"Depositary", when used with respect to the Securities of or within any
series issuable or issued in whole or in part in global form, means the Person
designated as Depositary by the Company pursuant to Section 3.1 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter shall mean or include each Person
which is then a Depositary hereunder, and if at any time there is more than one
such Person, shall be a collective reference to such Persons.
"Dollar" means the currency of the United States as at the time of
payment is legal tender for the payment of public and private debts.
"EQ Capital Trust" means such statutory business trust created under
the laws of the State of Delaware specified in the applicable Board Resolution
or supplemental indenture establishing a particular series of Debentures
pursuant to Section 3.1 hereof.
"Government Obligations" means securities which are (i) direct
obligations of the United States or, if specified as contemplated by Section
3.1, the government which issued the currency in which the Securities of a
particular series are payable, for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States or, if specified
as contemplated by Section 3.1, such government which issued the foreign
currency in which the Securities of a particular series are payable, the payment
of which is unconditionally guaranteed as a full faith and credit obligation by
the United States or such other government, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect
4
<PAGE>
of the Government Obligation evidenced by such depository receipt.
"Holder" means, with respect to a Registered Security, a Person in
whose name a Security is registered on the Register.
"Indenture" means this Indenture as originally executed or as amended
or supplemented from time to time and shall include and incorporate by reference
the forms and terms of particular series of Securities established as
contemplated hereunder.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after maturity, means interest
payable after maturity and, when used with respect to any other Security, means
the interest payable thereon in accordance with its terms.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such
5
<PAGE>
Security or an installment of principal becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the President, any
Vice-President, the chief financial officer, the Treasurer, the Assistant
Treasurer, the Controller, the Secretary or any Assistant Secretary of the
Company.
"Officers' Certificate", when used with respect to the Company, means a
certificate signed by two Officers, one of whom must be the Chairman of the
Board, the President, the chief financial officer, the Treasurer, the Assistant
Treasurer, the Controller or a Vice-President of the Company.
"Opinion of Counsel" means a written opinion from the general counsel
of the Company or other legal counsel who is reasonably acceptable to the
Trustee. Such counsel may be an employee of or counsel to the Company.
"Original Issue Discount Security" means any Security which provides
for an amount less than the stated principal amount thereof to be due and
payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
money or Government Obligations (as provided for in Section 4.6) in the
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the Holders
of such Securities, provided that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or provisions
therefor satisfactory to the Trustee have been made;
6
<PAGE>
(iii) Securities, except to the extent provided in Sections 4.4 and
4.5, with respect to which the Company has effected defeasance and/or covenant
defeasance as provided in Article 4; and
(iv) Securities which have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; provided, however, that in
determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, or whether sufficient funds are available
for redemption or for any other purpose, and for the purpose of making the
calculations required by section 313 of the Trust Indenture Act, (y) the
principal amount of any Original Issue Discount Securities that may be counted
in making such determination or calculation and that shall be deemed to be
Outstanding for such purpose shall be equal to the amount of principal thereof
that would be (or shall have been declared to be) due and payable, at the time
of such determination, upon a declaration of acceleration of the maturity
thereof pursuant to Section 5.2 and (z) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate (other than any EQ Capital
Trust) of the Company or of such other obligor shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the Trustee shall be
protected in making such calculation or in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which the Trustee knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, premium, if any, interest
7
<PAGE>
and any other payments due on any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest or formula for determining the rate or
rates of interest thereon, if any, the Maturity thereof and the redemption
provisions, if any, with respect thereto, are to be determined by the Company
upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of or
within any series, means the place or places where the principal of, premium, if
any, interest and any other payments due on such Securities are payable as
specified as contemplated by Sections 3.1 and 9.2.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Securities" means the preferred undivided beneficial
interests in the assets of the applicable EQ Capital Trust.
"Preferred Securities Guarantee" means any Guarantee Agreement from the
Company to the Guarantee Trustee for the benefit of holders of Preferred
Securities.
"Property Trustee" means the entity performing the function of the
Property Trustee under the applicable Declaration of Trust of an EQ Capital
Trust.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, in whole or in part, means the
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price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of or within any series means the date specified for that
purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee, shall
mean the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller and any assistant
controller, or any officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
shall mean, with respect to a particular corporate trust matter, any officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture and more particularly means a Security or Securities of the
Company issued, authenticated and delivered under this Indenture.
"Security Exchange" when used with respect to the Securities of any
series which are held as trust assets of an EQ Capital Trust pursuant to the
Declaration of Trust of such EQ Capital Trust, means the distribution of the
Securities of such series by such EQ Capital Trust in exchange for the Preferred
Securities and Common Securities of such EQ Capital Trust upon the dissolution
of such EQ Capital Trust pursuant to the Declaration of Trust of such EQ Capital
Trust.
"Senior Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or
not such claim for post-petition interest is allowed in such proceeding), on
Debt, whether incurred on or prior to the date of this Indenture or thereafter
incurred, unless, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such obligations are not
superior in right of payment to the Securities or to other Debt which is pari
passu with, or subordinated to, the Securities; provided, however, that
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Senior Debt shall not be deemed to include (a) any Debt of the Company which
when incurred and without respect to any election under Section 1111(b) of the
Bankruptcy Code, was without recourse to the Company, (b) any Debt of the
Company to any of its Subsidiaries, (c) Debt to any employee of the Company, (d)
any liability for taxes, (e) Debt or other monetary obligations to trade
creditors created or assumed by the Company or any of its Subsidiaries in the
ordinary course of business in connection with the obtaining of goods, materials
or services and (f) the Securities.
"Separate Accounts" means investment accounts maintained by an insurer
to which funds have been allocated for certain policies under provisions of
relevant state insurance law.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or in a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, association, joint-stock company, trust or other entity of which at
least a majority of capital stock having ordinary voting power for the election
of directors or other governing body is owned, directly or indirectly, by such
Person.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as amended
and as in effect on the date of this Indenture, except as provided in Section
8.3.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor Trustee replaces it pursuant to the applicable
provisions of this Indenture, and thereafter means such successor Trustee and
if, at any time, there is more than one Trustee, "Trustee" as used with respect
to the Securities of any series shall mean the Trustee with respect to the
Securities of that series.
"United States" means, unless otherwise specified with respect to the
Securities of any series as contemplated by Section 3.1, the United States of
America (including the
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States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"U.S. Person" means, unless otherwise specified with respect to the
Securities of any series as contemplated by Section 3.1, a citizen, national or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof, or an estate or trust, the income of which is subject to
United States federal income taxation regardless of its source.
(b) The following terms shall have the meanings specified in the
Sections referred to opposite such term below:
Term Section
------------------------------------------
"Act 1.4(a)
"Attributable Debt" 9.9(c)
"Bankruptcy Law" 5.1
"Custodian" 5.1
"Defaulted Interest" 3.7(b)
"Event of Default" 5.1
"Register" 3.5
"Registrar" 3.5
Section 1.2. Compliance Certificates and Opinions. Upon any application
or request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of either or both of such
documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Sections 2.3 and 9.6) shall include:
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(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or covenant
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations as to such matters are
erroneous.
Any certificate, statement or opinion of an officer of the Company or
of counsel may be based, insofar
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as it relates to accounting matters, upon a certificate or opinion of or
representations by an accountant or firm of accountants in the employ of the
Company, unless such officer or counsel, as the case may be, knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the accounting matters upon which his
certificate, statement or opinion is based are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.4. Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are received by the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Trustee deems
sufficient.
(c) The ownership of Securities shall be proved by the Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such Act is made upon
such Security.
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(e) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board Resolution, fix in advance a record
date for the determination of Holders of Registered Securities entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other
Act, but the Company shall have no obligation to do so. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of Registered Securities of record at the close of business on such record date
shall be deemed to be Holders for the purposes of determining whether Holders of
the requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
Section 1.5. Notices, etc., to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to
it at The Equitable Companies Incorporated, 1290 Avenue of the Americas, New
York, New York10104, Attention: General Counsel or at any other address
previously furnished in writing to the Trustee by the Company.
Section 1.6. Notice to Holders; Waiver. Where this Indenture provides
for notice to Holders of any event,
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such notice to the Holders shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each such Holder affected by such event, at his address as it appears in the
Register, within the time prescribed for the giving of such notice.
In any case where notice to Holders is given by mail or by publication,
neither the failure to mail or publish such notice, nor any defect in any notice
so mailed or published, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Any notice mailed to a Holder in the
manner herein prescribed shall be conclusively deemed to have been received by
such Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice as provided above,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder. If it is
impossible or, in the opinion of the Trustee, impracticable to give any notice
by publication in the manner herein required, then such publication in lieu
thereof as shall be made with the approval of the Trustee shall constitute a
sufficient publication of such notice.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Section 1.7. Headings and Table of Contents. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
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Section 1.8. Successor and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its successor and assigns, whether so
expressed or not.
Section 1.9. Separability. In case any provision of this Indenture or
the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 1.10. Benefits of Indenture. Nothing in this Indenture or in
the Securities, expressed or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 1.11. Governing Law. THIS INDENTURE, THE SECURITIES AND ANY
COUPONS APPERTAINING THERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. This Indenture is subject to the Trust
Indenture Act and if any provision hereof limits, qualifies or conflicts with
the Trust Indenture Act, the Trust Indenture Act shall control. Whether or not
this Indenture is required to be qualified under the Trust Indenture Act, the
provisions of the Trust Indenture Act required to be included in an indenture in
order for such indenture to be so qualified shall be deemed to be included in
this Indenture with the same effect as if such provisions were set forth herein
and any provisions hereof which may not be included in an indenture which is so
qualified shall be deemed to be deleted or modified to the extent such
provisions would be required to be deleted or modified in an indenture so
qualified.
Section 1.12. Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity of
any Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of any Security or
coupon other than a provision in the Securities of any series which specifically
states that such provision shall apply in lieu of this Section), payment of
principal, premium, if any, or interest need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on such date;
provided that no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date,
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Redemption Date, sinking fund payment date, Stated Maturity or Maturity, as the
case may be, if such amount is so paid on the next succeeding Business Day.
Section 1.13. Holders of Preferred Securities as Third-Party
Beneficiaries. The Company hereby acknowledges that, to the extent specifically
set forth herein, prior to a Security Exchange with respect to the Securities of
any series held as trust assets of an EQ Capital Trust, the holders of the
Preferred Securities of such EQ Capital Trust shall expressly be third party
beneficiaries of this Indenture. The Company further acknowledges that, prior to
a Security Exchange with respect to Securities of any series held as trust
assets of an EQ Capital Trust, if the Property Trustee of such EQ Capital Trust
fails to enforce its rights under this Indenture as the holder of the Securities
of a series held as trust assets of such EQ Capital Trust, any holder of the
Preferred Securities of such EQ Capital Trust may institute legal proceedings
directly against the Company to enforce such Property Trustee's rights under
this Indenture without first instituting any legal proceedings against such
Property Trustee or any other person or entity.
58214
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ARTICLE 2
Security Forms
--------------
Section 2.1. Forms Generally. The Securities of each series shall be in
substantially such form as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. If temporary
Securities of any series are issued as permitted by Section 3.4, the form
thereof also shall be established as provided in the preceding sentence. If the
forms of Securities of any series are established by, or by action taken
pursuant to, a Board Resolution, a copy of the Board Resolution together with an
appropriate record of any such action taken pursuant thereto, including a copy
of the approved form of Securities, shall be delivered to the Trustee at or
prior to the delivery of the Company Order contemplated by Section 3.3 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities as evidenced by their execution of
such Securities.
Section 2.2. Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication shall be in substantially the following
form:
This is one of the Securities of the series described in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated: __________________________ By____________________________
Authorized Signatory
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Section 2.3. Securities in Global Form. If Securities of or within a
series are issuable in whole or in part in global form, any such Security may
provide that it shall represent the aggregate or specified amount of Outstanding
Securities from time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced or increased to reflect exchanges. Any endorsement of a Security
in global form to reflect the amount, or any increase or decrease in the amount,
or changes in the rights of Holders, of Outstanding Securities represented
thereby, shall be made in such manner and by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 3.3 or 3.4. Subject to the provisions of Section 3.3 and, if
applicable, Section 3.4, the Trustee shall deliver and redeliver any security in
permanent global form in the manner and upon instructions given by the Person or
Persons specified therein or in the applicable Company Order. Any instructions
by the Company with respect to endorsement or delivery or redelivery of a
Security in global form shall be in writing but need not comply with Section 1.2
hereof and need not be accompanied by an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 shall apply to any
Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 1.2 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last paragraph of Section 3.3.
Notwithstanding the provisions of Section 2.1 and 3.7, unless otherwise
specified as contemplated by Section 3.1, payment of principal of, premium, if
any, and interest on any Security in permanent global form shall be made to the
registered holder thereof.
Section 2.4. Form of Legend for Securities in Global Form. Any Security
in global form authenticated and delivered hereunder shall bear a legend in
substantially the following form or in such other form as may be specified in
accordance with Section 3.1:
This Security is in global form within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of
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a Depositary. Unless and until it is exchanged in whole or in part for
Securities in certificate form, this Security may not be transferred except
as a whole by the Depositary to a nominee of the Depositary or by a nominee
of the Depositary to the Depositary or another nominee of the Depositary or
by the Depositary or any such nominee to a successor Depositary or a nominee
of such successor Depositary.
58226
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ARTICLE 3
The Securities
--------------
Section 3.1. Amount Unlimited; Issuable in Series. (a) The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued from time to time in
one or more series.
(b) The following matters shall be established with respect to each
series of Securities issued hereunder (i) by a Board Resolution, (ii) by action
taken pursuant to a Board Resolution and (subject to Section 3.3) set forth, or
determined in the manner provided, in an Officers' Certificate or (iii) in one
or more indentures supplemental hereto:
(1) the title of the Securities of the series (which title shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(which limit shall not pertain to Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 3.4, 3.5, 3.6, 8.6, or 10.7);
(3) the date or dates on which the principal of and premium, if any, on
the Securities of the series is payable or the method of determination
thereof;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method of calculating such rate or rates of
interest, the date or dates from which such interest shall accrue or the
method by which such date or dates shall be determined, the Interest Payment
Dates on which any such interest shall be payable, the right, if any, of the
Company to defer or extend an Interest Payment Date and the duration of such
deferral or extension and the Regular Record Date for the interest on any
Interest Payment Date;
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(5) the place or places where the principal of, premium, if any, and
interest, if any, on Securities of the series shall be payable;
(6) the period or periods within which, the price or prices at which,
and the other terms and conditions upon which, Securities of the series may
be redeemed, in whole or in part, at the option of the Company and, if other
than as provided in Section 10.3, the manner in which the particular
Securities of such series (if less than all Securities of such series are to
be redeemed) are to be selected for redemption;
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the option of a
Holder thereof and the period or periods within which, the price or prices
at which, and the other terms and conditions upon which, Securities of the
series shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $25 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) if the amount of payments of principal of, premium, if any, and
interest, if any, on the Securities of the series shall be determined with
reference to an index, formula or other method, the index, formula or other
method by which such amounts shall be determined;
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<PAGE>
(10) if other than the principal amount thereof, the portion of the
principal amount of such Securities of the series which shall be payable
upon declaration of acceleration thereof pursuant to Section 5.2 or the
method by which such portion shall be determined;
(11) if other than as provided in Section 3.7, the Person to whom any
interest on any Security of the series shall be payable;
(12) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(13) any deletions from, modifications of or additions to the Events of
Default set forth in Section 5.1 or covenants of the Company set forth in
Article 9 pertaining to the Securities of the series;
(14) under what circumstances, if any, the Company will pay additional
amounts on the Securities of that series held by a Person who is not a U.S.
Person in respect of taxes or similar charges withheld or deducted and, if
so, whether the Company will have the option to redeem such Securities
rather than pay such additional amounts (and the terms of any such option);
(15) the date as of which any temporary global Security representing
Outstanding Securities of the series shall be dated if other than the date
of original issuance of the first Security of the series to be issued;
(16) the forms of the Securities of the series;
(17) the applicability, if any, to the Securities of or within the
series of Sections 4.4 and 4.5, or such other means of defeasance or
covenant defeasance as may be specified for the Securities and whether, for
the purpose of such defeasance or covenant defeasance, the term "Government
Obligations" shall include obligations referred to in the definition of such
term which are not obligations of the United States or an agency or
instrumentality of the United States;
(18) if other than the Trustee, the identity of the Registrar and any
Paying Agent;
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(19) if the Securities of the series shall be issued in whole or in
part in global form, (i) the Depositary for such global Securities, (ii)
whether beneficial owners of interests in any Securities of the series in
global form may exchange such interests for certificated Securities of such
series and of like tenor of any authorized form and denomination, and (iii)
if other than as provided in Section 3.5, the circumstances under which any
such exchange may occur;
(20) the designation of the initial Depositary;
(21) any restrictions on the registration, transfer or exchange of the
Securities;
(22) the relative degree, if any, to which the Securities of the series
shall be senior to or be subordinated to other series of Securities in right
of payment, whether such other series of Securities are Outstanding or not;
(23) if the Securities of such series are to be deposited as trust
assets in an EQ Capital Trust the name of the applicable EQ Capital Trust
(which shall distinguish such statutory business trust from all other EQ
Capital Trusts) into which the Securities of such series are to be deposited
as trust assets and the date of its Declaration of Trust; and
(24) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture) including any terms
which may be required by or advisable under United States laws or
regulations or advisable (as determined by the Company) in connection with
the marketing of Securities of the series.
(c) All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided (i) by a Board
Resolution, (ii) by action taken pursuant to a Board Resolution and (subject to
Section 3.3) set forth, or determined in the manner provided, in the related
Officers' Certificate or (iii) in an indenture supplemental hereto. All
Securities of any one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the consent of the
Holders, for issuances of additional Securities of such series.
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<PAGE>
(d) If any of the terms of the Securities of any series are established
by action taken pursuant to a Board Resolution, a copy of such Board Resolution
shall be delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth, or providing the manner for determining, the terms of
the Securities of such series, and an appropriate record of any action taken
pursuant thereto in connection with the issuance of any Securities of such
series shall be delivered to the Trustee prior to the authentication and
delivery thereof.
Section 3.2. Denominations. Unless otherwise provided as contemplated
by Section 3.1, any Securities of a series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
Section 3.3. Execution, Authentication, Delivery and Dating. Securities
shall be executed on behalf of the Company by two Officers. The Company's seal
shall be reproduced on the Securities. The signatures of any of these officers
on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time Officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to be Officers
prior to the authentication and delivery of such Securities or were not Officers
at the date of such Securities.
At any time and from time to time, the Company may deliver Securities
of any series executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities; provided, however, that in the case of
Securities of a series offered in a Periodic Offering, the Trustee shall
authenticate and deliver such Securities from time to time in accordance with
such other procedures (including, without limitation, the receipt by the Trustee
of oral or electronic instructions from the Company or its duly authorized
agents, promptly confirmed in writing) acceptable to the Trustee as may be
specified by or pursuant to a Company Order delivered to the Trustee prior to
the time of the first authentication of Securities of such series.
If the form or terms of the Securities of a series have been
established by or pursuant to one or more Board Resolutions as permitted by
Sections 2.1 and 3.1, in
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authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to section 315(a) through (d) of the Trust
Indenture Act) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(1) if the forms of such Securities have been established by or
pursuant to a Board Resolution as permitted by Section 2.1, that sucTh forms
have been established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or
pursuant to a Board Resolution as permitted by Section 3.1, that such terms
have been, or in the case of Securities of a series offered in a Periodic
Offering, will be, established in conformity with the provisions of this
Indenture, subject in the case of Securities offered in a Periodic Offering,
to any conditions specified in such Opinion of Counsel; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws of general applicability
relating to or affecting the enforcement of creditors' rights and to general
equity principles.
Notwithstanding that such form or terms have been so established, the Trustee
shall have the right to decline to authenticate such Securities if, in the
opinion of the Trustee or counsel to the Trustee, the issue of such Securities
pursuant to this Indenture will adversely affect the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Notwithstanding the provisions of Section 3.1 and of the two preceding
paragraphs, if all of the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to the two preceding paragraphs in connection with
the authentication
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of each Security of such series if such documents, with appropriate
modifications to cover such future issuances, are delivered at or prior to the
authentication upon original issuance of the first Security of such series to be
issued.
With respect to Securities of a series offered in a Periodic Offering,
the Trustee may rely, as to the authorization by the Company of any of such
Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 2.1 and 3.1 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
If the Company shall establish pursuant to Section 3.1 that the
Securities of a series are to be issued in whole or in part in global form, then
the Company shall execute and the Trustee shall, in accordance with this Section
and the Company Order with respect to such series, authenticate and deliver one
or more Securities in global form that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by such Security or
Securities in global form, (ii) shall be registered in the name of the
Depositary for such Security or Securities in global form or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depository's instruction and (iv) shall bear the legend set
forth in Section 2.4.
Each Depositary designated pursuant to Section 3.1 for a Security in
global form must, at the time of its designation and at all times while it
serves as Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934 and any other applicable statute or regulation. The Trustee
shall have no responsibility to determine if the Depositary is so registered. If
requested by the Company, the Trustee shall enter into an agreement with a
Depositary governing the respective duties and rights of such Depositary and the
Trustee with regard to Securities issued in global form.
Each Security shall be dated the date of its authentication.
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No Security shall be entitled to any benefits under this Indenture or
be valid or obligatory for any purpose until authenticated by the manual
signature of one of the authorized signatories of the Trustee or an
Authenticating Agent. Such signature upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered under this Indenture and is entitled to the benefits of this
Indenture.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.9 together with a written statement (which need not comply
with Section 1.2 and need not be accompanied by an Opinion of Counsel) stating
that such Security has never been issued and sold by the Company, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
Section 3.4. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute and, upon Company
Order, the Trustee shall authenticate and deliver temporary Securities of such
series which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor and form,
with or without coupons, of the definitive Securities in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities and coupons, if
any. In the case of Securities of any series, such temporary Securities may be
in global form, representing all or a portion of the Outstanding Securities of
such series.
Except in the case of temporary Securities in global form, each of
which shall be exchanged in accordance with the provisions thereof, if temporary
Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company pursuant
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to Section 9.2 in a Place of Payment for such series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities
of any series (accompanied by any unmatured coupons appertaining thereto), the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations and of like tenor. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series except as otherwise
specified as contemplated by Section 3.1.
Section 3.5. Registration, Transfer and Exchange. The Company shall
cause to be kept at the Corporate Trust Office of the Trustee or in any office
or agency to be maintained by the Company in accordance with Section 9.2 in a
Place of Payment a register (the "Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and the registration of transfers of Securities. The
Register shall be in written form or any other form capable of being converted
into written form within a reasonable time. The Trustee is hereby initially
appointed "Registrar" for the purpose of registering Registered Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency maintained pursuant to Section 9.2 in a Place of
Payment for that series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any authorized
denominations and of a like aggregate principal amount containing identical
terms and provisions.
At the option of the Holder, Securities of any series (except a
Security in global form) may be exchanged for other Securities of the same
series, of any authorized denominations and of a like aggregate principal amount
containing identical terms and provisions, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
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Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for Securities in certificated form, a
Security in global form representing all or a portion of the Securities of a
series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for the Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 3.3, the Company shall
appoint a successor Depositary with respect to the Securities of such series. If
a successor Depositary for the Securities of such series is not appointed by the
Company prior to the resignation of the Depositary and, in any event, within 90
days after the Company receives such notice or becomes aware of such
ineligibility, the Company's election pursuant to Section 3.1(b)(24) shall no
longer be effective with respect to the Securities of such series and the
Company shall execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of certificated Securities of such series of like
tenor, shall authenticate and deliver, Securities of such series of like tenor
in certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
The Company may at any time in its sole discretion determine that
Securities issued in global form shall no longer be represented by such a
Security or Securities in global form. In such event the Company shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Securities of such series of like tenor, shall
authenticate and deliver, Securities of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
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If specified by the Company pursuant to Section 3.1 with respect to a
series of Securities, the Depositary for such series may surrender a Security in
global form of such series in exchange in whole or in part for Securities of
such series in certificated form on such terms as are acceptable to the Company
and such Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to each Person specified by such Depositary a new certificated
Security or Securities of the same series of like tenor, of any authorized
denomination as requested by such Person in aggregate principal amount equal
to and in exchange for such Person's beneficial interest in the Security in
global form; and
(ii) to such Depositary a new Security in global form of like tenor in
a denomination equal to the difference, if any, between the principal amount
of the surrendered Security in global form and the aggregate principal
amount of certificated Securities delivered to Holders thereof.
Upon the exchange of a Security in global form for Securities in
certificated form, such Security in global form shall be canceled by the
Trustee. Securities in certificated form issued in exchange for a Security in
global form pursuant to this Section shall be registered in such names and in
such authorized denominations as the Depositary for such Security in global
form, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee in writing. The Trustee shall deliver such
Securities to the Persons in whose names such Securities are so registered.
Whenever any Securities are surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or upon any
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so
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required by the Company, the Registrar or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Registrar and the Trustee duly executed by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or for
any exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration or transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4 or 10.7 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of, or exchange any Securities for a period beginning at the opening of business
15 days before any selection for redemption of Securities of like tenor and of
the series of which such Security is a part and ending at the close of business
on the earliest date on which the relevant notice of redemption is deemed to
have been given to all Holders of Securities of like tenor and of such series to
be redeemed; or (ii) to register the transfer of or exchange any Security so
selected for redemption, in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
The foregoing provisions relating to registration, transfer and
exchange may be modified, supplemented or superseded with respect to any series
of Securities by a Board Resolution or in one or more indentures supplemental
hereto.
Section 3.6. Replacement Securities. If a mutilated Security is
surrendered to the Trustee, together with, in proper cases, such security or
indemnity as may be required by the Company or the Trustee to save each of them
harmless, the Company shall execute and the Trustee shall authenticate and
deliver a replacement Security of the same series and date of maturity, if the
Trustee's requirements are met.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate
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and deliver in lieu of any such destroyed, lost or stolen Security, a
replacement Security, of the same series and principal amount, containing
identical terms and provisions and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee, its agents and
counsel) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 3.7. Payment of Interest; Interest Rights Preserved. (a) Unless
otherwise provided as contemplated by Section 3.1, interest, if any, on any
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest at the office or agency maintained
for such purpose pursuant to 9.2; provided, however, that at the option of the
Company, interest on any series of Securities that bear interest may be paid (i)
by check mailed to the address of the Person entitled thereto as it shall appear
on the Register of Holders of Securities of such series or (ii) at the expense
of the Company, by wire transfer to an account maintained by the Person entitled
thereto as specified in the Register of Holders of Securities of such series.
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(b) Unless otherwise provided as contemplated by Section 3.1, any
interest on Securities of any series which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holders on the
relevant Regular Record Date by virtue of their having been such Holders, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of such Defaulted Interest to
the Persons in whose names such Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause (1) provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of such
Securities at his address as it appears in the Register, not less than 10
days prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names
such Securities (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2).
(2) The Company may make payment of such Defaulted Interest to the
Persons in whose names such Securities (or their respective Predecessor
Securities)
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are registered at the close of business on a specified date in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause (2), such manner of
payment shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and Section
3.5, each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 3.8. Persons Deemed Owners. Prior to due presentment of any
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of, premium, if any, and (subject to Section 3.7) interest on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of a
Security in global form, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests. Notwithstanding the
foregoing, with respect to any Security in global form, nothing herein shall
prevent the Company or the Trustee, or any agent of the Company or the Trustee,
from giving effect to any written certification, proxy or other authorization
furnished by any Depositary (or its nominee), as a Holder, with respect to such
Security in global form or impair, as between such Depositary and owners of
beneficial interests in such Security in global form, the operation of customary
practices governing the exercise of the rights of such Depositary (or its
nominee) as Holder of such Security in global form.
Section 3.9. Cancellation. The Company at any time may deliver
Securities to the Trustee for cancellation.
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The Registrar and any Paying Agent shall forward to the Trustee any Securities
surrendered to them for replacement, for registration of transfer, for
conversion or exchange or payment. The Trustee shall cancel all Securities
surrendered for replacement, for registration of transfer, or for payment,
redemption or cancellation and, at the request of the Company, shall return such
cancelled securities to the Company. The Company may not issue new Securities to
replace Securities that it has paid or delivered to the Trustee for
cancellation.
Section 3.10. Computation of Interest. Except as otherwise specified as
contemplated by Section 3.1, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11. CUSIP Numbers. The Company in issuing the Securities may
use "CUSIP" numbers (if then generally in use), and, in such case, the Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
58231
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ARTICLE 4
Satisfaction, Discharge and Defeasance
--------------------------------------
Section 4.1. Termination of Company's Obligations Under the Indenture.
This Indenture shall upon a Company Request cease to be of further effect with
respect to Securities of or within any series (except as to (i) rights of
registration, transfer or exchange of such Securities, (ii) rights of
replacement of such Securities which may have been lost, stolen or mutilated as
herein expressly provided for, (iii) rights of holders of Securities to receive
payments of principal thereof and interest thereon, upon the original stated due
dates therefor (but not upon acceleration), and rights of the Holders to receive
mandatory sinking fund payments, if any, (iv) rights, obligations, duties and
immunities of the Trustee hereunder, (v) any rights of the Holders of Securities
of such series as beneficiaries hereof with respect to the property so deposited
with the Trustee payable to all or any of them, and (vi) the obligations of the
Company under Section 9.2) and the Trustee, upon payment of all amounts due it
under Section 6.9, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture with
respect to such Securities when
(i) either
(A) all such Securities previously authenticated and delivered (other
than (i) such Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.6, and (ii)
such Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 9.3) have been delivered to the Trustee for cancellation; or
(B) all Securities of such series
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
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(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust
for the purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal, premium, if any, and interest, with respect
thereto, to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture as
to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligation
of the Company to the Trustee and any predecessor Trustee under Section 6.9, the
obligations of the Company to any Authenticating Agent under Section 6.14 and,
if money shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under Section 4.2 and
the last paragraph of Section 9.3 shall survive.
Section 4.2. Application of Trust Funds. Subject to the provisions of
the last paragraph of Section 9.3, all money deposited with the Trustee pursuant
to Section 4.1 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal, premium, if any and any interest for whose
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payment such money has been deposited with or received by the Trustee, but such
money need not be segregated from other funds except to the extent required by
law.
Section 4.3. Applicability of Defeasance Provisions; Company's Option
to Effect Defeasance or Covenant Defeasance. If pursuant to Section 3.1
provision is made for either or both of (i) defeasance of the Securities of or
within a series under Section 4.4 or (ii) covenant defeasance of the Securities
of or within a series under Section 4.5, then the provisions of such Section or
Sections, as the case may be, together with the provisions of Sections 4.6
through 4.9 inclusive, with such modifications thereto as may be specified
pursuant to Section 3.1 with respect to any Securities, shall be applicable to
such Securities and any coupons appertaining thereto, and the Company may at its
option by or pursuant to Board Resolution, at any time, with respect to such
Securities elect to have Section 4.4 (if applicable) or Section 4.5 (if
applicable) be applied to such Outstanding upon compliance with the conditions
set forth below in this Article.
Section 4.4. Defeasance and Discharge. Upon the Company's exercise of
the option specified in Section 4.3 applicable to this Section with respect to
the Securities of or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Securities on and after the
date the conditions set forth in Section 4.6 are satisfied (hereinafter
"defeasance"). For this purpose, such defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by such
Securities which shall thereafter be deemed to be "Outstanding" only for the
purposes of Section 4.7 and the other Sections of this Indenture referred to in
clause (ii) of this Section, and to have satisfied all its other obligations
under such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, upon payment of all amounts due it under Section
6.9, at the expense of the Company, shall on a Company Order execute proper
instruments acknowledging the same), except the following which shall survive
until otherwise terminated or discharged hereunder: (i) the rights of Holders of
such Securities to receive, solely from the trust funds described in Section
4.6(a) and as more fully
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set forth in such Section, payments in respect of the principal of, premium, if
any, and interest, if any, on such Securities when such payments are due; (ii)
the Company's obligations with respect to such Securities under Sections 3.5,
3.6, 9.2 and 9.3 and with respect to the payment of additional amounts, if any,
payable with respect to such Securities as specified pursuant to Section
3.1(b)(15); (iii) trusts, duties and immunities of the Trustee hereunder and
(iv) this Article 4. Subject to compliance with this Article 4, the Company may
exercise its option under this Section notwithstanding the prior exercise of its
option under Section 4.5 with respect to such Securities and any coupons
appertaining thereto. Following a defeasance, payment of such Securities may not
be accelerated because of an Event of Default.
Section 4.5. Covenant Defeasance. Upon the Company's exercise of the
option specified in Section 4.3 applicable to this Section with respect to any
Securities of or within a series, the Company shall be released from its
obligations under Sections 7.1 and 9.4 and, if specified pursuant to Section
3.1, its obligations under any other covenant, with respect to such Securities
on and after the date the conditions set forth in Section 4.6 are satisfied
(hereinafter, "covenant defeasance"), and such Securities shall thereafter be
deemed to be not "Outstanding" for the purposes of any direction, waiver,
consent or declaration or Act of Holders (and the consequences of any thereof)
in connection with Sections 7.1 and 9.4 or such other covenant, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such Securities,
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such Section or such other
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such Section or such other covenant or by reason of reference in
any such Section or such other covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a Default or an
Event of Default under Section 5.1(3) or 5.1(6) or otherwise, as the case may
be, but, except as specified above, the remainder of this Indenture and such
Securities shall be unaffected thereby.
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Section 4.6. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 4.4 or Section 4.5
to any Securities of or within a series:
(a) The Company shall have deposited or caused to be deposited
irrevocably with the Trustee (or another trustee satisfying the requirements
of Section 6.12 who shall agree to comply with, and shall be entitled to the
benefits of, the provisions of Sections 4.3 through 4.9 inclusive and the
last paragraph of Section 9.3 applicable to the Trustee, for purposes of
such Sections also a "Trustee") as trust funds in trust for the purpose of
making the payments referred to in clauses (x) and (y) of this Section
4.6(a), specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities, with written instructions to the
Trustee as to the application thereof, (A) money in an amount, or (B) if
Securities of such series are not subject to repayment at the option of
Holders, Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment referred to in
clause (x) or (y) of this Section 4.6(a), money in an amount or (C) a
combination thereof in an amount, sufficient, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee to pay and discharge,
(x) the principal of, premium, if any, and interest, if any, on such
Securities on the Maturity of such principal or installment of principal or
interest and (y) any mandatory sinking fund payments applicable to such
Securities on the day on which such payments are due and payable in
accordance with the terms of this Indenture and such Securities. Before such
a deposit the Company may make arrangements satisfactory to the Trustee for
the redemption of Securities at a future date or dates in accordance with
Article 10 which shall be given effect in applying the foregoing.
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(b) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to the Securities of that
series shall have occurred or be continuing on the date of such a deposit or
shall occur as a result of such a deposit or, insofar as subsections 5.1(4)
and (5) are concerned, shall occur at any time during the period ending on
the 91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(c) Such defeasance or covenant defeasance shall not result in a breach
or violation of, or constitute a default under, any other material agreement
or instrument to which the Company is a party or by which it is bound.
(d) In the case of an election under Section 4.4, the Company shall
have delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel to the effect that (i) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling, or (ii) since the
date of execution of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and
based thereon such opinion shall confirm that, the Holders of such
Securities will not recognize income, gain or loss for federal income tax
purposes as a result of such defeasance and will be subject to federal
income tax on the same amount and in the same manner and at the same times,
as would have been the case if such deposit, defeasance and discharge had
not occurred.
(e) In the case of an election under Section 4.5, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Securities will not recognize income, gain or loss for
federal income tax purposes as a result of such covenant defeasance and will
be subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such covenant defeasance
had not occurred.
(f) The Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the
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Company's exercise of its option under Section 4.4 or 4.5, as the case may
be, will not result in any of the Company, the Trustee or the trust created
by the Company's deposit hereunder becoming or being deemed to be an
"investment company" under the Investment Company Act of 1940, as amended.
(g) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 4.4 or the covenant defeasance
under Section 4.5 (as the case may be) have been complied with.
(h) Such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection therewith as
contemplated by Section 3.1.
(i) At the time of such deposit: (A) no Default in the payment of
principal of (or premium, if any) or interest on any Senior Debt shall have
occurred and be continuing or (B) no other Event of Default with respect to
any Senior Debt shall have occurred and be continuing and shall have
resulted in such Senior Debt becoming or being declared due and payable
prior to the date on which it would otherwise have become due and payable,
or, in the case of either clause (A) or clause (B) above, each such Default
or Event of Default shall have been cured or waived or shall have ceased to
exist.
Section 4.7. Deposited Money and Government Obligations to Be Held in
Trust. Subject to the provisions of the last paragraph of Section 9.3, all money
and Government Obligations (or other property as may be provided pursuant to
Section 3.1) (including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.6 in respect of any Securities of any series shall be held
in trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities of all sums due and to
become due thereon in respect of
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principal, premium, if any, and interest, if any, but such money need not be
segregated from other funds except to the extent required by law.
Section 4.8. Repayment to Company. The Trustee (and any Paying Agent)
shall promptly pay to the Company upon Company Request any excess money or
securities held by them at any time.
Section 4.9. Indemnity for Government Obligations. The Company shall
pay, and shall indemnify the Trustee against, any tax, fee or other charge
imposed on or assessed against Government Obligations deposited pursuant to this
Article or the principal and interest and any other amount received on such
Government Obligations.
58232
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ARTICLE 5
Defaults and Remedies
---------------------
Section 5.1. Events of Default. An "Event of Default" occurs with
respect to the Securities of any series if (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) the Company defaults in the payment of interest on any Security of
that series or any additional amount payable with respect to any Security of
that series as specified pursuant to Section 3.1(b)(14) when the same
becomes due and payable and such default continues for a period of 30 days;
(2) the Company defaults in the payment of any installment of the
principal of or any premium on any Security of that series when the same
becomes due and payable, whether at its Maturity or on redemption or
otherwise, or in the payment of a mandatory sinking fund payment when and as
due by the terms of the Securities of that series;
(3) the Company fails to comply in any material respect with any of its
agreements or covenants in, or any of the provisions of, this Indenture with
respect to any Security of that series (other than an agreement, covenant or
provision for which noncompliance is elsewhere in this Section specifically
dealt with), and such non-compliance continues for a period of 90 days after
there has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities of the series, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
(4) the Company pursuant to or within the meaning of any Bankruptcy Law
(A) commences a voluntary case, (B) consents to the entry of an order for
relief against it in an involuntary case, (C) consents to the appointment of
a Custodian of it or for all or substantially all of its property; or (D)
makes a general assignment for the benefit of its creditors;
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(5) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that (A) is for relief against the Company in an
involuntary case, (B) appoints a Custodian of the Company or for all or
substantially all of its property, or (C) orders the liquidation of the
Company and the order or decree remains unstayed and in effect for 60 days;
or
(6) there occurs any other Event of Default provided as contemplated by
Section 3.1 with respect to Securities of that series.
The term "Bankruptcy Law" means any applicable bankruptcy, insolvency
or other similar law now or hereinafter in effect. The term "Custodian" means
any receiver, trustee, assignee, liquidator, custodian, sequestrator or similar
official under any Bankruptcy Law.
Section 5.2. Acceleration; Rescission and Annulment. If an Event of
Default with respect to the Securities of any series at the time Outstanding
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of all of the Outstanding Securities of that series,
by written notice to the Company (and, if given by the Holders, to the Trustee),
may declare the principal of (or, if the Securities of that series are Original
Issue Discount Securities or Indexed Securities, such portion of the principal
amount as may be specified in the terms of that series) and accrued interest, if
any, on all the Securities of that series to be due and payable and upon any
such declaration such principal (or, in the case of Original Issue Discount
Securities or Indexed Securities, such specified amount) and interest, if any,
shall be immediately due and payable, provided that the payment of principal and
interest on such Securities shall remain subordinated to the extent provided in
Article 12.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgement or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series, by written notice to the Trustee, may
rescind and annul such declaration and its consequences if all existing Defaults
and Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which have become due
solely by such declaration of acceleration, have been
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cured or waived as provided in Section 5.7. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
Section 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, if any, the whole amount then due and payable on
such Securities for principal, premium, if any, and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal, premium, if any, and on any overdue interest, at the rate or
rates prescribed therefor in such Securities and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including all amounts due the Trustee, its agents and counsel under
Section 6.9.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to secure any other proper remedy.
Section 5.4. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Holders of
Securities allowed in any judicial proceedings relating to the Company, its
creditors or its property.
Section 5.5. Trustee May Enforce Claims without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding
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relating thereto.
Section 5.6. Delay or Omission Not Waiver. No delay or omission by the
Trustee or any Holder of any Securities to exercise any right or remedy accruing
upon an Event of Default shall impair any such right or remedy or constitute a
waiver of or acquiescence in any such Event of Default.
Section 5.7. Waiver of Past Defaults. The Holders of a majority in
aggregate principal amount of Outstanding Securities of any series (with, in the
case of any series of Securities held as trust assets of an EQ Capital Trust and
with respect to which a Security Exchange has not theretofore occurred, such
consent of holders of the Preferred Securities and the Common Securities of such
EQ Capital Trust as may be required under the Declaration of Trust of such EQ
Capital Trust) by written notice to the Trustee may waive, on behalf of the
Holders of all Securities of such series, any past Default or Event of Default
with respect to that series and its consequences except (i) a Default or Event
of Default in the payment of the principal of, premium, if any, or interest, if
any, on any Security of such series or (ii) in respect of a covenant or
provision hereof which pursuant to Section 8.2 cannot be amended or modified
without the consent of the Holder of each Outstanding Security of such series
adversely affected. Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 5.8. Control by Majority. The Holders of a majority in
aggregate principal amount of the Outstanding Securities of each series affected
(with each such series voting as a class) (with, in the case of any series of
Securities held as trust assets of an EQ Capital Trust and with respect to which
a Security Exchange has not theretofore occurred, such consent of holders of the
Preferred Securities and the Common Securities of such EQ Capital Trust as may
be required under the Declaration of Trust of such EQ Capital Trust) shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power conferred
on it with respect to Securities of that series; provided, however, that (i) the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, (ii) the Trustee may refuse to follow any direction that is unduly
prejudicial to
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the rights of the Holders of Securities of such series not consenting, or that
would in the good faith judgment of the Trustee have a substantial likelihood of
involving the Trustee in personal liability and (iii) the Trustee may take any
other action deemed proper by the Trustee which is not inconsistent with such
direction.
Section 5.9. Limitation on Suits by Holders. No Holder of any Security
of any series shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(1) the Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series have made a written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense to be, or
which may be, incurred by the Trustee in pursuing the remedy;
(4) the Trustee for 60 days after its receipt of such notice, request
and the offer of indemnity has failed to institute any such proceedings; and
(5) during such 60 day period, the Holders of a majority in aggregate
principal amount of the outstanding Securities of that series have not given
to the Trustee a direction inconsistent with such written request.
No one or more Holders shall have any right in any manner whatever by
virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all of such Holders.
Section 5.10. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this
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Indenture, but subject to Section 9.2, the right of any Holder of a Security or
coupon to receive payment of principal of, premium, if any, and, subject to
Sections 3.5 and 3.7, interest on the Security, on or after the respective due
dates expressed in the Security (or, in case of redemption, on the redemption
dates), or, subject to Section 5.9, to bring suit for the enforcement of any
such payment on or after such respective dates and the right, if any, to convert
or exchange such securities in accordance with Article 13, shall not be impaired
or affected without the consent of such Holder.
Section 5.11. Application of Money Collected. If the Trustee collects
any money pursuant to this Article, it shall pay out the money in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal, premium, if any, or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: to the Trustee for amounts due under Section 6.9;
Second: to Holders of Securities in respect of which or for the benefit
of which such money has been collected for amounts due and unpaid on such
Securities for principal of, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and payable
on such Securities for principal, premium, if any, and interest,
respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 5.11. At least 15 days before such record date,
the Trustee shall mail to each Holder and the Company a notice that states the
record date, the payment date and the amount to be paid.
Section 5.12. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all
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rights and remedies of the Trustee and the Holders shall continue as though no
such proceeding had been instituted.
Section 5.13. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 3.6, no right or
remedy herein conferred upon or reserved to the Trustee or the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.14. Certain Rights of Holders of Preferred Securities. If,
prior to a Security Exchange with respect to the Securities of any series, a
Default with respect to the Securities of such series shall have occurred, the
Company expressly acknowledges that under the circumstances set forth in the
applicable Declaration of Trust, any holder of Preferred Securities of the
applicable EQ Capital Trust may enforce directly against the Company the
applicable Property Trustee's rights hereunder. In furtherance of the foregoing
and for the avoidance of any doubt, the Company acknowledges that, under the
circumstances described in the applicable Declaration of Trust, any such holder
of Preferred Securities, in its own name, in the name of the applicable EQ
Capital Trust or in the name of the holders of the Preferred Securities issued
by such EQ Capital Trust, may institute or cause to be instituted a proceeding,
including, without limitation, any suit in equity, an action at law or other
judicial or administrative proceeding, to enforce the applicable Property
Trustee's rights hereunder directly against the Company as issuer of the
applicable series of Securities, and may prosecute such proceeding to judgment
or final decree, and enforce the same against the Company.
58259
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ARTICLE 6
The Trustee
-----------
Section 6.1. Certain Duties and Responsibilities of the Trustee. (a)
Except during the continuance of an Event of Default, the Trustee's duties and
responsibilities under this Indenture shall be governed by Section 315(a) of the
Trust Indenture Act.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture, and
shall use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own affairs.
Section 6.2. Rights of Trustee. Subject to the provisions of the Trust
Indenture Act:
(a) The Trustee may rely and shall be protected in acting or refraining
from acting upon any document believed by it to be genuine and to have been
signed or presented by the proper party or parties. The Trustee need not
investigate any fact or matter stated in the document.
(b) Any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security to the Trustee for authentication and delivery
pursuant to Section 3.3, which shall be sufficiently evidenced as provided
therein) and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution.
(c) Before the Trustee acts or refrains from acting, it may consult
with counsel of its selection or require an Officers' Certificate and/or an
Opinion of Counsel. The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on a Board Resolution, the advice
of counsel acceptable to the Trustee, a certificate of an Officer or
Officers delivered pursuant to Section 1.2, an Officers' Certificate or an
Opinion of Counsel.
(d) The Trustee may act through agents or attorneys and shall not be
responsible for the misconduct or negligence of any agent or attorney
appointed with due care.
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(e) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights
or powers.
(f) The Trustee shall not be required to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or
indemnity deemed satisfactory by the Trustee against such risk or liability
is not reasonably assured to it.
Section 6.3. Trustee May Hold Securities. The Trustee, any Paying
Agent, any Registrar or any other agent of the Company or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 310(b) and 311 of the Trust Indenture Act, may
otherwise deal with the Company, an Affiliate or Subsidiary with the same rights
it would have if it were not Trustee, Paying Agent, Registrar or such other
agent.
Section 6.4. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed upon in writing with the
Company.
Section 6.5. Trustee's Disclaimer. The recitals contained herein and in
the Securities, except the Trustee's certificate of authentication, shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representation as to
the validity or adequacy of this Indenture or the Securities. The Trustee shall
not be accountable for the Company's use of the proceeds from the Securities or
for monies paid over to the Company pursuant to the Indenture.
Section 6.6. Notice of Defaults. If a Default occurs and is continuing
with respect to the Securities of any series and if it is known to the Trustee,
the Trustee shall, within 90 days after the Default occurs, transmit by mail, in
the manner and to the extent provided in Section 313(c) of the Trust Indenture
Act, notice of all Defaults known to it unless such Default shall have been
cured or
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waived; provided, however, that except in the case of a Default in the
payment of principal (and premium, if any) or interest on the Securities of any
series, the Trustee may withhold the notice if and so long as a Responsible
Officer in good faith determines that withholding such notice is in the
interests of Holders of Securities of that series.
Section 6.7. Reports by Trustee to Holders. Within 60 days after each
May 15 of each year commencing with the first May 15 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by mail to all
Holders of Securities as provided in Section 313(c) of the Trust Indenture Act a
brief report dated as of such May 15 if required by and in compliance with
Section 313(a) of the Trust Indenture Act.
Section 6.8. Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders of Securities of each series. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee
semiannually on or before the last day of June and December in each year, and at
such other times as the Trustee may request in writing, a list, in such form and
as of such date as the Trustee may reasonably require, containing all the
information in the possession or control of the Registrar, the Company or any of
its Paying Agents other than the Trustee as to the names and addresses of
Holders of Securities of each such series. If there are Bearer Securities of any
series Outstanding, even if the Trustee is the Registrar, the Company shall
furnish to the Trustee such a list containing such information with respect to
Holders of such Bearer Securities only.
Section 6.9. Compensation and Indemnity. (a) The Company shall pay to
the Trustee from time to time such compensation for its services as the parties
shall agree in writing from time to time. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred by it in connection with the performance of its
duties under this Indenture, except any such expense as may be attributable to
its negligence or bad faith. Such expenses shall include the reasonable
compensation and expenses of the Trustee's agents and counsel.
(b) The Company shall indemnify the Trustee for and hold it harmless
against, any loss or liability, damage, claim or reasonable expense including
taxes (other than
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taxes based upon or determined or measured by the income of the Trustee)
incurred by it arising out of or in connection with its acceptance or
administration of the trust or trusts hereunder, including the reasonable costs
and expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder. The
Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. The Company shall defend the claim and the Trustee shall cooperate in
the defense. The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need not pay for any
settlement made without its consent, which consent shall not be unreasonably
withheld or delayed.
(c) The Company agrees to pay the fees and expenses of Trustee's
counsel in connection with the review, revision, preparation and delivery of
this Indenture.
(d) The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through negligence or bad faith.
(e) To secure the payment obligations of the Company pursuant to this
Section, the Trustee shall have a lien prior to the Securities of any series on
all money or property held or collected by the Trustee, except that held in
trust to pay principal, premium, if any, and interest on particular Securities.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 5.1(4) or Section 5.1(5), the expenses
(including the reasonable fees and expenses of its counsel) and the compensation
for the services are intended to constitute expenses of administration under any
applicable federal or state bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the resignation or removal
of the Trustee and the termination of this Indenture.
Section 6.10. Replacement of Trustee. (a) The resignation or removal of
the Trustee and the appointment of a successor Trustee shall become effective
only upon the successor Trustee's acceptance of appointment as provided in
Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of any series by giving written
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notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 6.11 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to the Securities of such series.
(c) The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may remove the Trustee with respect to that
series by so notifying the Trustee and the Company and may appoint a successor
Trustee for such series with the Company's consent.
(d) If at any time:
(1) the Trustee fails to comply with Section 310(b) of the Trust
Indenture Act after written request therefor by the Company or by any Holder
who has been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.12 hereunder
or Section 310(a) of the Trust Indenture Act and shall fail to resign after
written request therefor by the Company or by any Holder of a Security who
has been a bona fide Holder of a Security for at least six months; or
(3) the Trustee becomes incapable of acting, is adjudged a bankrupt or
an insolvent or a receiver or public officer takes charge of the Trustee or
its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee with respect to all Securities, or (ii) subject to Section
315(e) of the Trust Indenture Act, any Holder who has been a bona fide Holder of
a Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, with respect to Securities of
one or more series, the Company, by or pursuant to Board Resolution, shall
promptly appoint a
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successor Trustee with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 6.11. If,
within one year after such resignation or removal, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 6.11, any Holder who has been a bona fide Holder of a
Security of such series for at least two months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
Section 6.11. Acceptance of Appointment by Successor. (a) In case of
the appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment.
Thereupon, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee, without further act, deed or conveyance,
shall become vested with all the rights, powers and duties of the retiring
Trustee; but, on the request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of all amounts due it under Section 6.9,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and such successor Trustee shall execute and deliver an
indenture supplemental hereto wherein such successor Trustee
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shall accept such appointment and which (i) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest in, such
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (ii) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (iii) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or,
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall, upon payment
of all amounts due it under Section 6.9, duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under the Trust Indenture Act.
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(e) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series in the
manner provided for notices to the Holders of Securities in Section 1.6. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust office. If the
Company fails to give such notice within thirty days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be given at the expense of the Company.
Section 6.12. Eligibility; Disqualification. There shall at all times
be a Trustee hereunder which shall be eligible to act as Trustee under Section
310(a)(1) of the Trust Indenture Act and shall have a combined capital and
surplus of at least $75,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or the requirements of Federal,
State, Territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
Section 6.13. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 6.14. Appointment of Authenticating
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Agent. The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original
issue, exchange, registration of transfer or partial redemption thereof, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Any such appointment shall be evidenced by an instrument in
writing signed by a Responsible Officer of the Trustee, a copy of which
instrument shall be promptly furnished to the Company. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and, except as may otherwise be provided pursuant to
Section 3.1, shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any State or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $5,000,000 and subject to supervision or examination by Federal
or State authorities. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the
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Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Company. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment, at the expense of the Company, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve in the manner set forth in Section 1.6. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent herein. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series described in the
within-mentioned Indenture.
___________________________
as Trustee
By___________________________, as
Authenticating Agent
By___________________________, as
58263 Authorized Signatory
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ARTICLE 7
Consolidation, Merger or Sale by the Company
--------------------------------------------
Section 7.1. Consolidation, Merger or Sale of Assets Permitted. The
Company shall not consolidate or merge with or into, or transfer or lease all or
substantially all of its assets to, any Person unless:
(1) the Person formed by or surviving any such consolidation or merger
(if other than the Company), or to which such transfer or lease shall have
been made, is a corporation organized and existing under the laws of the
United States, any state thereof or the District of Columbia;
(2) the Person formed by or surviving any such consolidation or merger
(if other than the Company), or to which such transfer or lease shall have
been made, assumes by supplemental indenture all the obligations of the
Company under the Securities and this Indenture; and
(3) immediately after giving effect to the transaction no Default or
Event of Default exists.
The Company shall deliver to the Trustee prior to the proposed
transaction an Officers' Certificate to the foregoing effect and an opinion of
Counsel stating that the proposed transaction and such supplemental indenture
comply with this Indenture and that all conditions precedent to the consummation
of the transaction under this Indenture have been met.
In the event of the assumption by a successor corporation as provided
in clause (2) above, such successor corporation shall succeed to and be
substituted for the Company hereunder and under the Securities with the same
effect as if it had been named hereunder and thereunder and all such obligations
of the Company shall terminate.
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ARTICLE 8
Supplemental Indentures
Section 8.1. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
indentures supplemental hereto, in form reasonably satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants and obligations of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default with respect to all or any
series of Securities; or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to facilitate the issuance of Bearer Securities
(including, without limitation, to provide that Bearer Securities may be
registrable as to principal only) or to facilitate the issuance of
Securities in global form; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series it created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of
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appointment hereunder by a successor Trustee with respect to the Securities
of one or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to
the requirements of Section 6.11; or
(9) to correct or supplement any provision herein which may be
inconsistent with any other provision herein or to make any other provisions
with respect to matters or questions arising under this Indenture, provided
such action shall not adversely affect the interests of the Holders of
Securities of any series; or
(10) to cure any ambiguity or correct any mistake; or
(11) to modify the provisions in Article 12 of this Indenture with
respect to the subordination of Outstanding Securities of any series in a
manner not adverse to the Holders thereof.
Section 8.2. Supplemental Indentures With Consent of Holders. With the
written consent of the Holders of a majority of the aggregate principal amount
of the Outstanding Securities adversely affected by such supplemental indenture
(with the Securities of each series voting as a class) (and, in the case of any
series of Securities held as trust assets of an EQ Capital Trust and with
respect to which a Security Exchange has not theretofore occurred, such consent
of holders of the Preferred Securities and the Common Securities of such EQ
Capital Trust as may be required under the Declaration of Trust of such EQ
Capital Trust), the Company and the Trustee may enter into an indenture or
indentures supplemental hereto to add any provisions to or to change or
eliminate any provisions of this Indenture or of any other indenture
supplemental hereto or to modify the rights of the Holders of such Securities;
provided, however, that without the consent of the Holder of each Outstanding
Security affected thereby (and, in the case of any series of Securities held as
trust assets of an EQ Capital Trust and with respect to which a Security
Exchange has not theretofore occurred, such consent of holders of the Preferred
Securities and the Common Securities of such EQ Capital Trust as may be required
under the Declaration of Trust of such EQ Capital Trust), an amendment under
this Section may not:
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(1) change the Stated Maturity of the principal of or premium, if any,
on, or any installment of principal of or premium, if any, or interest on,
any Security, or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or change the
manner in which the amount of any principal thereof or premium, if any, or
interest thereon is determined or reduce the amount of the principal of any
Original Issue Discount Security or Indexed Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 5.2, or change the currency or currency unit in which any
Securities or any premium or interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date);
(2) reduce the percentage in principal amount of the Outstanding
Securities affected thereby, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture;
(3) change any obligation of the Company to maintain an office or
agency in the places and for the purposes specified in Section 9.2;
(4) make any change in Section 5.7 or this 8.2 except to increase any
percentage or to provide that certain other provisions of this Indenture
cannot be modified or waived with the consent of the Holders of each
Outstanding Security affected thereby; or
(5) modify the provisions in Article 12 of this Indenture with respect
to the subordination of Outstanding Securities of any series in a manner
adverse to the Holders thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
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It is not necessary under this Section 8.2 for the Holders to consent
to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
Section 8.3. Compliance with Trust Indenture Act. Every amendment to
this Indenture or the Securities of one or more series shall be set forth in a
supplemental indenture that complies with the Trust Indenture Act as then in
effect.
Section 8.4. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
Section 8.5. Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
Section 8.6. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities including any coupons of any series so modified as to conform, in
the opinion of the Company, to any such supplemental indenture may be prepared
and executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities including any coupons of such series.
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ARTICLE 9
Covenants
---------
Section 9.1. Payment of Principal, Premium, if any, and Interest. The
Company covenants and agrees for the benefit of the Holders of each series of
Securities that it will duly and punctually pay the principal of, premium, if
any, and interest together with additional amounts, if any, on the Securities of
that series in accordance with the terms of the Securities of such series, any
coupons appertaining thereto and this Indenture. An installment of principal,
premium, if any, or interest shall be considered paid on the date it is due if
the Trustee or Paying Agent holds on that date money designated for and
sufficient to pay the installment.
Section 9.2. Maintenance of Office or Agency. The Company will maintain
in each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. , The Company will
give prompt written notice to the Trustee of the location, and any change in the
location, of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Unless otherwise specified as contemplated by Section 3.1, the Trustee
shall initially serve as Paying
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Agent.
Section 9.3. Money for Securities Payments to Be Held in Trust;
Unclaimed Money. If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date of
the principal of, premium, if any, or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal, premium, if any, or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee in writing of its
action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any payment of
principal, premium, if any, or interest on the Securities; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the terms set forth in this Indenture; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment
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of any principal, premium or interest on any Security of any series and
remaining unclaimed for two years after such principal, premium, if any, or
interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may in the name and at the expense of the Company cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, or cause to be mailed to such Holder, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 9.4. Corporate Existence. Subject to Article 7, the Company
will at all times do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and its rights and
franchises; provided that nothing in this Section 9.4 shall prevent the
abandonment or termination of any right or franchise of the Company if, in the
opinion of the Company, such abandonment or termination is in the best interests
of the Company and not prejudicial in any material respect to the Holders of the
Securities.
Section 9.5. Reports by the Company. The Company covenants:
(a) to file with the Trustee, within 30 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934, as amended; or, if the Company is not
required to file information, documents or reports pursuant to either of
such sections, then to file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of
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the supplementary and periodic information, documents and reports which may
be required pursuant to section 13 of the Securities Exchange Act of 1934,
as amended, in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations;
(b) to file with the Trustee and the Commission, in accordance with the
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants provided for in this
Indenture, as may be required from time to time by such rules and
regulations; and
(c) to transmit to all Holders of Securities, within 30 days after the
filing thereof with the Trustee, in the manner and to the extent provided in
section 313(c) of the Trust Indenture Act, such summaries of any
information, documents and reports required to be filed by the Company
pursuant to subsections (a) and (b) of this Section 9.5, as may be required
by rules and regulations prescribed from time to time by the Commission.
Section 9.6. Annual Review Certificate. The Company covenants and
agrees to deliver to the Trustee, within 120 days after the end of each fiscal
year of the Company (which currently ends on December 31), a certificate from
the principal executive officer principal financial officer or principal
accounting officer stating that a review of the activities of the Company during
such year and of performance under this Indenture has been made under his
supervision and to the best of his knowledge, based on such review, the Company
has fulfilled all of its obligations under this Indenture throughout such year,
or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to him and the nature and status thereof. For
purposes of this Section 9.6, such compliance shall be determined without regard
to any period of grace or requirement of notice provided under this Indenture.
Section 9.7. Books of Record and Account. The Company will keep proper
books of record and account, either on a consolidated or individual basis. The
Company shall cause its books of record and account to be examined, either on a
consolidated or individual basis, by one or more firms of independent public
accountants not less frequently than
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annually. The Company shall prepare its financial statements in accordance with
generally accepted accounting principles.
58267
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ARTICLE 10
Redemption
----------
Section 10.1. Applicability of Article. Securities of any series which
are redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by Section
3.1 for Securities of any series) in accordance with this Article.
Section 10.2. Election to Redeem; Notice to Trustee. The election of
the Company to redeem any Securities shall be evidenced by or pursuant to a
Board Resolution. In the case of any redemption at the election of the Company
of less than all the Securities of any series, the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be redeemed and,
if applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities (i) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture or (ii) pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
Section 10.3. Selection of Securities to Be Redeemed. Unless otherwise
specified as contemplated by Section 3.1, if less than all the Securities of a
series with the same terms are to be redeemed, the Trustee, not more than 45
days prior to the redemption date, shall select the Securities of the series to
be redeemed in such manner as the Trustee shall deem fair and appropriate. The
Trustee shall make the selection from Securities of the series that are
Outstanding and that have not previously been called for redemption and may
provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any integral multiple
thereof) of the principal amount of Securities, including coupons, if any, of
such series of a denomination larger than the minimum authorized denomination
for Securities of that series. The Trustee shall promptly notify the Company in
writing of the Securities selected by the Trustee for redemption and, in the
case of any Securities selected for partial redemption, the principal amount
thereof to be
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redeemed. If the Company shall so direct, Securities registered in the name of
the Company, any Affiliate or any Subsidiary thereof shall not be included in
the Securities selected for redemption.
For purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities (including coupons, if any) redeemed or to be redeemed
only in part, to the portion of the principal amount of such Securities
(including coupons, if any) which has been or is to be redeemed.
Section 10.4. Notice of Redemption. Unless otherwise specified as
contemplated by Section 3.1, notice of redemption shall be given in the manner
provided in Section 1.6 not less than 30 days nor more than 60 days prior to the
Redemption Date to the Holders of the Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of a series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Security or Securities to be redeemed;
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the holder will receive, without a
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed;
(5) the Place or Places of Payment where such Securities are to be
surrendered for payment for the Redemption Price;
(6) that Securities of the series called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(7) that, on the Redemption Date, the Redemption Price will become due
and payable upon each such
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Security, or the portion thereof, to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date;
(8) that the redemption is for a sinking fund, if such is the case; and
(9) the CUSIP number, if any, of the Securities.
Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
Section 10.5. Deposit of Redemption Price. Prior to 10:00 a.m. (New
York time) on any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent, which
it may not do in the case of a sinking fund payment under Article 11, segregate
and hold in trust as provided in Section 9.3) an amount of money in the currency
or currencies (including currency unit or units) in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 3.1 for
the Securities of such series) sufficient to pay on the Redemption Date the
Redemption Price of, and (unless the Redemption Date shall be an Interest
Payment Date) interest accrued to the Redemption Date on, all Securities or
portions thereof which are to be redeemed on that date.
Unless any Security by its terms prohibits any redemption obligation
from being satisfied by delivering and crediting Securities (including
Securities redeemed otherwise than through a sinking fund), the Company may
deliver such Securities to the Trustee for crediting against such payment
obligation in accordance with the terms of such Securities and this Indenture.
Section 10.6. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Except as provided in the next
succeeding paragraph, upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest to the Redemption Date;
provided, however, that unless otherwise specified as
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contemplated by Section 3.1, installments of interest on Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 10.7. Securities Redeemed in Part. Upon surrender of a Security
that is redeemed in part at any Place of Payment therefor (with, if the Company
or the Trustee so required, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing), the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
that Security, without service charge a new Security or Securities of the same
series, having the same form, terms and Stated Maturity, in any authorized
denomination equal in aggregate principal amount to the unredeemed portion of
the principal amount of the Security surrendered.
ARTICLE 11
Sinking Funds
-------------
Section 11.1. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 3.1 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 11.2. Each sinking fund payment shall be applied to the
redemption of Securities of
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any series as provided for by the terms of Securities of such series.
Section 11.2. Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series (other than any
previously called for redemption) and (ii) may apply as a credit Securities of a
series which have been redeemed either at the election of the Company pursuant
to the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 11.3. Redemption of Securities for Sinking Fund. Not less than
60 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 11.2 and
will also deliver to the Trustee any Securities to be so delivered. Not less
than 30 days before each such sinking fund payment date the Trustee shall select
the Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 10.3 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 10.4. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
10.6 and 10.7.
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ARTICLE 12
Subordination of Securities
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Section 12.1. Securities Subordinate to Senior Debt. The Company
covenants and agrees, and each Holder of a Security, by its acceptance thereof,
likewise covenants and agrees, that, to the extent and in the manner hereinafter
set forth in this Article, the payment of the principal of (and premium, if any)
and interest on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
amounts then due and payable in respect of all Senior Debt.
Section 12.2. Payment Over of Proceeds Upon Dissolution, Etc. In the
event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, arrangement, reorganization, debt restructuring or
other similar case or proceeding in connection with any insolvency or bankruptcy
proceeding, relative to the Company or to its assets, or (b) any liquidation,
dissolution or other winding up of the Company, whether voluntary or involuntary
and whether or not involving insolvency or bankruptcy, or (c) any assignment for
the benefit of creditors or any other marshalling of assets and liabilities of
the Company, then and in any such event specified in (a), (b) or (c) above (each
such event, if any, herein sometimes referred to as a "Proceeding") the holders
of Senior Debt shall be entitled to receive payment in full of principal of (and
premium, if any) and interest, if any, on such Senior Debt, or provision shall
be made for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, before the Holders of the Securities
are entitled to receive or retain any payment or distribution of any kind or
character, whether in cash, property or securities (including any payment or
distribution which may be payable or deliverable by reason of the payment of any
other Debt of the Company (including any series of the Securities) subordinated
to the payment of the Securities, such payment or distribution being hereinafter
referred to as a "Junior Subordinated Payment"), on account of principal of (or
premium, if any) or interest on the Securities or on account of the purchase or
other acquisition of Securities by the Company or any Subsidiary and to that end
the holders of Senior Debt shall be entitled to receive, for application to the
payment thereof, any payment or distribution of any kind of character, whether
in cash, property or securities, including any Junior
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Subordinated Payment, which may be payable or deliverable in respect of the
Securities in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any Junior Subordinated
Payment, before all Senior Debt is paid in full or payment thereof is provided
for in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, and if such fact shall, at or prior to the time of such
payment or distribution, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment or distribution shall be
paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person making payment
or distribution of assets of the Company for application to the payment of all
Senior Debt remaining unpaid, to the extent necessary to pay all Senior Debt in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt.
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment which securities are subordinated in
right of payment to all then outstanding Senior Debt to substantially the same
extent as the Securities are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the sale of
all or substantially all of its properties and assets as an entirety to another
Person or the liquidation or dissolution of the Company following the sale of
all or substantially all of its properties and assets as an entirety to another
Person upon the terms and conditions set forth in Article 7 shall not be deemed
a Proceeding for the purposes of this Section if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by sale such properties and assets as an entirety, as the case may be, shall, as
a part of such consolidation, merger, or sale comply with the conditions set
forth in Article 7.
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Section 12.3. Prior Payment to Senior Debt Upon Acceleration of
Securities. In the event that any Securities are declared due and payable before
their Stated Maturity, then and in such event the holders of the Senior Debt
outstanding at the time such Securities so become due and payable shall be
entitled to receive payment in full of all amounts due on or in respect of such
Senior Debt (including any amounts due upon acceleration), or provision shall be
made for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, before the Holders of the Securities
are entitled to receive any payment or distribution of any kind or character,
whether in cash, properties or securities (including any Junior Subordinated
Payment) by the Company on account of the principal of (or premium, if any) or
interest on the Securities or on account of the purchase or other acquisition of
Securities by the Company or any Subsidiary; provided, however, that nothing in
this Section shall prevent the satisfaction of any sinking fund payment in
accordance with Article 11 by delivering and crediting pursuant to Section 11.2
Securities which have been acquired (upon redemption or otherwise) prior to such
declaration of acceleration.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 12.2 would be applicable.
Section 12.4. No Payment When Senior Debt in Default. (a) In the event
and during the continuation of any default in the payment of principal of (or
premium, if any) or interest on any Senior Debt, or in the event that any event
of default with respect to any Senior Debt shall have occurred and be continuing
and shall have resulted in such Senior Debt becoming or being declared due and
payable prior to the date on which it would otherwise have become due and
payable, unless and until such event of default shall have been cured or waived
or shall have ceased to exist and such acceleration shall have been rescinded or
annulled, or (b) in the event any judicial proceeding shall be pending with
respect to any such default in payment or such event or
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default, then no payment or distribution of any kind or character, whether in
cash, properties or securities (including any Junior Subordinated Payment) shall
be made by the Company on account of principal of (or premium, if any) or
interest, if any, on the Securities or on account of the purchase or other
acquisition of Securities by the Company or any Subsidiary; provided, however,
that nothing in this Section shall prevent the satisfaction of any sinking fund
payment in accordance with Article 11 by delivering and crediting pursuant to
Section 11.2 Securities which have been acquired (upon redemption or otherwise)
prior to such default in payment or event of default.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 12.2 would be applicable.
Section 12.5. Payment Permitted If No Default. Nothing contained in
this Article or elsewhere in this Indenture or in any of the Securities shall
prevent (a) the Company, at any time except during the pendency of any
Proceeding referred to in Section 12.2 or under the conditions described in
Sections 12.3 and 12.4, from making payments at any time of principal of (and
premium, if any) or interest on the Securities, or (b) the application by the
Trustee of any money deposited with it hereunder to the payment of or on account
of the principal of (and premium, if any) or interest on the Securities or the
retention of such payment by the Holders, if, at the time of such application by
the Trustee, it did not have knowledge that such payment would have been
prohibited by the provisions of this Article.
Section 12.6. Subrogation to Rights of Holders of Senior Debt. Subject
to the payment in full of all Senior Debt, or the provision for such payment in
cash or cash equivalents or otherwise in a manner satisfactory to the holders of
Senior Debt, the Holders of the Securities shall be subrogated to the extent of
the payments or distributions made to the holders of such Senior Debt pursuant
to the provisions of this Article (equally and ratably with the
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holders of all indebtedness of the Company which by its express terms is
subordinated to Senior Debt of the Company to substantially the same extent as
the Securities are subordinated to the Senior Debt and is entitled to like
rights of subrogation by reason of any payments or distributions made to holders
of such Senior Debt) to the rights of the holders of such Senior Debt to receive
payments and distributions of cash, property and securities applicable to the
Senior Debt until the principal of (and premium, if any) and interest on the
Securities shall be paid in full. For purposes of such subrogation or
assignment, no payments or distributions to the holders of the Senior Debt of
any cash, property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article, and no
payments over pursuant to the provisions of this Article to the holders of
Senior Debt by Holders of the Securities or the Trustee, shall, as among the
Company, its creditors other than holders of Senior Debt, and the Holders of the
Securities, be deemed to be a payment or distribution by the Company to or on
account of the Senior Debt.
Section 12.7. Provisions Solely to Define Relative Rights. The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Debt on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Securities is intended to or
shall (a) impair, as between the Company and the Holders of the Securities, the
obligations of the Company, which are absolute and unconditional, to pay to the
Holders of the Securities the principal of (and premium, if any) and interest on
the Securities as and when the same shall become due and payable in accordance
with their terms; or (b) affect the relative rights against the Company of the
Holders of the Securities and creditors of the Company other than their rights
in relation to the holders of Senior Debt; or (c) prevent the Trustee or the
Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture including, without limitation,
filing and voting claims in any Proceeding, subject to the rights, if any, under
this Article of the holders of Senior Debt to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.
Section 12.8. Trustee to Effectuate Subordination. Each Holder of a
Security by his or her acceptance thereof authorizes and directs the Trustee on
his or her behalf to take such action as may be necessary or
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appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
Section 12.9. No Waiver of Subordination Provisions. No right of any
present or future holder of any Senior Debt to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Company with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof that any such holder may have or be otherwise charged with.
Section 12.10. Notice to Trustee. The Company shall give prompt written
notice to the Trustee of any fact known to the Company which would prohibit the
making of any payment to or by the Trustee in respect of the Securities.
Notwithstanding the provisions of this Article or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee in
respect of the Securities, unless and until the Trustee shall have received
written notice thereof from the Company or a holder of Senior Debt or from any
trustee, agent or representative therefor (whether or not the facts contained in
such notice are true); provided, however, that if the Trustee shall not have
received the notice provided for in this Section at least two Business Days
prior to the date upon which by the terms hereof any monies may become payable
for any purpose (including, without limitation, the payment of the principal of
(and premium, if any) or interest on any Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such monies and to apply the same to the purpose for which
they were received and shall not be affected by any notice to the contrary which
may be received by it within two Business Days prior to such date.
Section 12.11. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of Article
6, and the Holders of the Securities shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which such Proceeding
is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or
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distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
Section 12.12. Trustee Not Fiduciary For Holders of Senior Debt. The
Trustee, in its capacity as trustee under this Indenture, shall not be deemed to
owe any fiduciary duty to the holders of Senior Debt and shall not be liable to
any such holders if it shall in good faith mistakenly pay over or distribute to
Holders of Securities or to the Company or to any other Person cash, property or
securities to which any holders of Senior Debt shall be entitled by virtue of
this Article or otherwise.
Section 12.13. Rights of Trustee as Holder of Senior Debt; Preservation
of Trustee's Rights. The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior Debt which
may at any time be held by it, to the same extent as any other holder of Senior
Debt, and nothing in this Indenture shall deprive the Trustee of any of its
rights as such holder.
Section 12.14. Article Applicable to Paying Agents. In case at any time
any Paying Agent other than the Trustee shall have been appointed by the Company
and be then acting hereunder, the term "Trustee" as used in this Article shall
in such case (unless the context otherwise requires) be construed as extending
to and including such Paying Agent within its meaning as fully for all intents
and purposes as if such Paying Agent were named in this Article in addition to
or in place of the Trustee.
Section 12.15. Defeasance of This Article 12. The subordination of the
Securities provided by this Article 12 is expressly made subject to the
provisions for defeasance or covenant defeasance in Article 4 and, anything
herein to the contrary notwithstanding, upon the effectiveness of any such
defeasance or covenant defeasance, the Securities then outstanding shall
thereupon cease to be subordinated pursuant to this Article 12.
58271
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This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
THE EQUITABLE COMPANIES INCORPORATED
By:_________________________________
Name
Title:
[Seal]
Attest:
THE BANK OF NEW YORK,
Trustee
By:_________________________________
Name:
Title:
58272
85
DECLARATION OF TRUST, dated as of January 14, 1998, between The
Equitable Companies Incorporated, a Delaware corporation, as Sponsor, and The
Bank of New York, a New York banking corporation, not in its individual capacity
but solely as trustee (the "Property Trustee"), The Bank of New York (Delaware),
a Delaware banking corporation, not in its individual capacity but solely as
trustee (the "Delaware Trustee"), and Stanley B. Tulin, Kevin R. Byrne and
Robert A. Gender, each not in his individual capacity but solely as trustee (the
Property Trustee, Delaware Trustee and each such individual as trustee,
collectively the "Trustees"). The Sponsor and the Trustees hereby agree as
follows:
1. The trust created hereby shall be known as "EQ Capital Trust I", in
which name the Trustees, or the Sponsor to the extent provided herein, may
conduct the business of the Trust, make and execute contracts, and sue and be
sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trustees the sum of $10. The Trustees hereby acknowledge receipt of such amount
in trust from the Sponsor, which amount shall constitute the initial trust
estate. The Trustees hereby declare that they will hold the trust estate in
trust for the Sponsor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code section 3801 et seq. (the "Business Trust Act"), and
that this document constitute the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust with the Secretary of State of the State of Delaware in the form attached
hereto. The Trust is hereby established by the Sponsors and the Trustees for the
purposes of (i) issuing preferred securities representing undivided beneficial
interest in the assets of the Trust ("Preferred Securities") in exchange for
cash and investing the proceeds thereof in junior subordinated debentures of the
Sponsor, (ii) issuing and selling common securities representing undivided
beneficial interests in the assets of the Trust to the Sponsor in exchange for
cash and investing the proceeds thereof in additional junior subordinated
debentures of the Sponsor and, (iii) engaging in such other activities as are
necessary, convenient or incidental thereto.
3. The Sponsor and the Trustees will enter into an amended and restated
Declaration of Trust, satisfactory to
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each such party and substantially in the form included as an exhibit to the 1933
Act Registration Statement referred to below, to provide for the contemplated
operation of the Trust created hereby and the issuance of the Preferred
Securities and Common Securities referred to therein. Prior to the execution and
delivery of such amended and restated Declaration of Trust, the Trustees shall
not have any duty or obligation hereunder or with respect to the trust estate,
except as otherwise required by applicable law or as may be necessary to obtain
prior to such execution and delivery any licenses, consents or approvals
required by applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, as the sponsor of the Trust, (i) to prepare and file with the
Securities and Exchange Commission (the "Commission") and execute, in each case
on behalf of the Trust, (a) a Registration Statement on Form S-3 (the "1933 Act
Registration Statement") including any pre-effective or post-effective
amendments to such Registration Statement, relating to the registration under
the Securities Act of 1933, as amended, of the Preferred Securities of the
Trust, (b) a Registration Statement, and any and all amendments thereto, filed
pursuant to Rule 462(b) under the Securities Act of 1933, and (c) a Registration
Statement on Form 8-A (the "1934 Act Registration Statement") (including all
pre-effective and post-effective amendments thereto) relating to the
registration of the Preferred Securities of the Trust under Section 12(b) of the
Securities Exchange Act of 1934, as amended; (ii) to prepare and file with the
New York 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 necessary or desirable to cause the Preferred Securities
to be listed on the New York Stock Exchange; (iii) to prepare and file and
execute on behalf of the Trust such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and other
papers and documents as shall be necessary or desirable to register the
Preferred Securities under the securities or "Blue Sky" laws of such
jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or
desirable and (iv) to negotiate the terms of and execute on behalf of the Trust
an underwriting agreement among the Trust, the Sponsor and any underwriter,
dealer or agent relating to the Preferred Securities. In the event that any
filing referred to in clauses (i)-(iii) above is required by the rules and
regulations of the Commission,
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the New York Stock Exchange or state securities or blue sky laws, to be executed
on behalf of the Trust by the Trustees, Stanley B. Tulin, Kevin R. Byrne and
Robert A. Gender 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 Bank of New
York and The Bank of New York (Delaware), 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 New York Stock Exchange or state securities or blue sky laws. In
connection with all of the foregoing, the Sponsor and each Trustee, solely in
its capacity as Trustee of the Trust, hereby constitutes and appoints Stanley B.
Tulin, Kevin R. Byrne, Henry Q. Conley, Adam R. Spilka and Pauline Sherman, and
each of them, 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 the Sponsor or such Trustee and in the Sponsor's or such
Trustee's name, place and stead, in any and all capacities, to sign and file (i)
any and all amendments (including post-effective amendments) to the 1933 Act
Registration Statement and the 1934 Act Registration Statement with all exhibits
thereto, and other documents in connection therewith, and (ii) a registration
statement, and any and all amendments thereto filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended 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 the Sponsor 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.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be five (5) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor which may increase or decrease the
number of Trustees; provided, however, that the number of Trustees shall in no
event be less than five (5); and provided, further that to the extent required
by the Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not
-3-
<PAGE>
a natural person, an entity which has its principal place of business in the
State of Delaware and meets other requirements imposed by applicable law.
Subject to the foregoing, the Sponsor is entitled to appoint or remove without
cause any Trustee at any time. The Trustees may resign upon thirty days prior
notice to the Sponsor.
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
The Equitable Companies Incorporated,
as Sponsor
By: /s/ Stanley B. Tulin
----------------------------------
Name: Stanley B. Tulin
Title: Executive Vice President,
Chief Financial Officer
The Bank of New York,
not in its individual capacity
but solely as Property Trustee
By: /s/ Robert A. Massimillo
----------------------------------
Name: Robert A. Massimillo
Title: Assistant Vice President
The Bank of New York (Delaware), not in its
individual capacity but solely as Delaware
Trustee
By: /s/ Mary Jane Morrissey
----------------------------------
Name: Mary Jane Morrissey
Title: Authorized Signatory
/s/ Stanley B. Tulin
---------------------------------------
not in his individual capacity
but solely as Trustee
-4-
<PAGE>
/s/ Kevin R. Byrne
---------------------------------------
not in his individual capacity
but solely as Trustee
/s/ Robert A. Gender
---------------------------------------
not in his individual capacity
but solely as Trustee
58318
-5-
CERTIFICATE OF TRUST
OF
EQ CAPITAL TRUST I
THIS Certificate of Trust of EQ Capital Trust I (the "Trust"), dated
January 14, 1998, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. Code Sections 3801 et seq.).
1. Name. The name of the business trust being formed hereby is EQ
Capital Trust I.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware is
The Bank of New York, a Delaware banking corporation, White Clay Center,
Route 273, Newark, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be effective as of
its filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
The Bank of New York (Delaware)
-------------------------------,
as Delaware Trustee
By: /s/ Mary Jane Morrissey
--------------------------,
Name: Mary Jane Morrissey
Title: Authorized Signatory
The Bank of New York
----------------------------,
as Property Trustee
By: /s/ Robert A. Massimillo
--------------------------,
Name: Robert A. Massimillo
Title: Assistant Vice President
/s/ Stanley B. Tulin
-----------------------,
as Trustee
/s/ Kevin R. Byrne
-----------------------,
as Trustee
/s/ Robert A. Gender
-----------------------,
as Trustee
DECLARATION OF TRUST, dated as of January 14, 1998, between The
Equitable Companies Incorporated, a Delaware corporation, as Sponsor, and The
Bank of New York, a New York banking corporation, not in its individual capacity
but solely as trustee (the "Property Trustee"), The Bank of New York (Delaware),
a Delaware banking corporation, not in its individual capacity but solely as
trustee (the "Delaware Trustee"), and Stanley B. Tulin, Kevin R. Byrne and
Robert A. Gender, each not in his individual capacity but solely as trustee (the
Property Trustee, Delaware Trustee and each such individual as trustee,
collectively the "Trustees"). The Sponsor and the Trustees hereby agree as
follows:
1. The trust created hereby shall be known as "EQ Capital Trust II",
in which name the Trustees, or the Sponsor to the extent provided herein, may
conduct the business of the Trust, make and execute contracts, and sue and be
sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trustees the sum of $10. The Trustees hereby acknowledge receipt of such amount
in trust from the Sponsor, which amount shall constitute the initial trust
estate. The Trustees hereby declare that they will hold the trust estate in
trust for the Sponsor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code section 3801 et seq. (the "Business Trust Act"), and
that this document constitute the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust with the Secretary of State of the State of Delaware in the form attached
hereto. The Trust is hereby established by the Sponsors and the Trustees for the
purposes of (i) issuing preferred securities representing undivided beneficial
interest in the assets of the Trust ("Preferred Securities") in exchange for
cash and investing the proceeds thereof in junior subordinated debentures of the
Sponsor, (ii) issuing and selling common securities representing undivided
beneficial interests in the assets of the Trust to the Sponsor in exchange for
cash and investing the proceeds thereof in additional junior subordinated
debentures of the Sponsor and, (iii) engaging in such other activities as are
necessary, convenient or incidental thereto.
3. The Sponsor and the Trustees will enter into an amended and restated
Declaration of Trust, satisfactory to
-1-
<PAGE>
each such party and substantially in the form included as an exhibit to the 1933
Act Registration Statement referred to below, to provide for the contemplated
operation of the Trust created hereby and the issuance of the Preferred
Securities and Common Securities referred to therein. Prior to the execution and
delivery of such amended and restated Declaration of Trust, the Trustees shall
not have any duty or obligation hereunder or with respect to the trust estate,
except as otherwise required by applicable law or as may be necessary to obtain
prior to such execution and delivery any licenses, consents or approvals
required by applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, as the sponsor of the Trust, (i) to prepare and file with the
Securities and Exchange Commission (the "Commission") and execute, in each case
on behalf of the Trust, (a) a Registration Statement on Form S-3 (the "1933 Act
Registration Statement") including any pre-effective or post-effective
amendments to such Registration Statement, relating to the registration under
the Securities Act of 1933, as amended, of the Preferred Securities of the
Trust, (b) a Registration Statement, and any and all amendments thereto, filed
pursuant to Rule 462(b) under the Securities Act of 1933, and (c) a Registration
Statement on Form 8-A (the "1934 Act Registration Statement") (including all
pre-effective and post-effective amendments thereto) relating to the
registration of the Preferred Securities of the Trust under Section 12(b) of the
Securities Exchange Act of 1934, as amended; (ii) to prepare and file with the
New York 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 necessary or desirable to cause the Preferred Securities
to be listed on the New York Stock Exchange; (iii) to prepare and file and
execute on behalf of the Trust such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and other
papers and documents as shall be necessary or desirable to register the
Preferred Securities under the securities or "Blue Sky" laws of such
jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or
desirable and (iv) to negotiate the terms of and execute on behalf of the Trust
an underwriting agreement among the Trust, the Sponsor and any underwriter,
dealer or agent relating to the Preferred Securities. In the event that any
filing referred to in clauses (i)-(iii) above is required by the rules and
regulations of the Commission,
-2-
<PAGE>
the New York Stock Exchange or state securities or blue sky laws, to be executed
on behalf of the Trust by the Trustees, Stanley B. Tulin, Kevin R. Byrne and
Robert A. Gender 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 Bank of New
York and The Bank of New York (Delaware), 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 New York Stock Exchange or state securities or blue sky laws. In
connection with all of the foregoing, the Sponsor and each Trustee, solely in
its capacity as Trustee of the Trust, hereby constitutes and appoints Stanley B.
Tulin, Kevin R. Byrne, Henry Q. Conley, Adam R. Spilka and Pauline Sherman, and
each of them, 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 the Sponsor or such Trustee and in the Sponsor's or such
Trustee's name, place and stead, in any and all capacities, to sign and file (i)
any and all amendments (including post-effective amendments) to the 1933 Act
Registration Statement and the 1934 Act Registration Statement with all exhibits
thereto, and other documents in connection therewith, and (ii) a registration
statement, and any and all amendments thereto filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended 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 the Sponsor 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.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be five (5) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor which may increase or decrease the
number of Trustees; provided, however, that the number of Trustees shall in no
event be less than five (5); and provided, further that to the extent required
by the Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not
-3-
<PAGE>
a natural person, an entity which has its principal place of business in the
State of Delaware and meets other requirements imposed by applicable law.
Subject to the foregoing, the Sponsor is entitled to appoint or remove without
cause any Trustee at any time. The Trustees may resign upon thirty days prior
notice to the Sponsor.
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
The Equitable Companies Incorporated,
as Sponsor
By: /s/ Stanley B. Tulin
----------------------------------
Name: Stanley B. Tulin
Title: Executive Vice President,
Chief Financial Officer
The Bank of New York,
not in its individual capacity
but solely as Property Trustee
By: /s/ Robert A. Massimillo
----------------------------------
Name: Robert A. Massimillo
Title: Assistant Vice President
The Bank of New York (Delaware), not in its
individual capacity but solely as Delaware
Trustee
By: /s/ Mary Jane Morrissey
----------------------------------
Name: Mary Jane Morrissey
Title: Authorized Signatory
/s/ Stanley B. Tulin
---------------------------------------
not in his individual capacity
but solely as Trustee
-4-
<PAGE>
/s/ Kevin R. Byrne
---------------------------------------
not in his individual capacity
but solely as Trustee
/s/ Robert A. Gender
---------------------------------------
not in his individual capacity
but solely as Trustee
58318
-5-
CERTIFICATE OF TRUST
OF
EQ CAPITAL TRUST II
THIS Certificate of Trust of EQ Capital Trust II (the "Trust"), dated
January 14, 1998, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. Code Sections 3801 et seq.).
1. Name. The name of the business trust being formed hereby is EQ
Capital Trust II.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware is
The Bank of New York, a Delaware banking corporation, White Clay Center,
Route 273, Newark, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be effective as of
its filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
The Bank of New York (Delaware)
-------------------------------,
as Delaware Trustee
By: /s/ Mary Jane Morrissey
--------------------------,
Name: Mary Jane Morrissey
Title: Authorized Signatory
The Bank of New York
----------------------------,
as Property Trustee
By: /s/ Robert A. Massimillo
--------------------------,
Name: Robert A. Massimillo
Title: Assistant Vice President
/s/ Stanley B. Tulin
-----------------------,
as Trustee
/s/ Kevin R. Byrne
-----------------------,
as Trustee
/s/ Robert A. Gender
-----------------------,
as Trustee
DECLARATION OF TRUST, dated as of January 14, 1998, between The
Equitable Companies Incorporated, a Delaware corporation, as Sponsor, and The
Bank of New York, a New York banking corporation, not in its individual capacity
but solely as trustee (the "Property Trustee"), The Bank of New York (Delaware),
a Delaware banking corporation, not in its individual capacity but solely as
trustee (the "Delaware Trustee"), and Stanley B. Tulin, Kevin R. Byrne and
Robert A. Gender, each not in his individual capacity but solely as trustee (the
Property Trustee, Delaware Trustee and each such individual as trustee,
collectively the "Trustees"). The Sponsor and the Trustees hereby agree as
follows:
1. The trust created hereby shall be known as "EQ Capital Trust III",
in which name the Trustees, or the Sponsor to the extent provided herein, may
conduct the business of the Trust, make and execute contracts, and sue and be
sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trustees the sum of $10. The Trustees hereby acknowledge receipt of such amount
in trust from the Sponsor, which amount shall constitute the initial trust
estate. The Trustees hereby declare that they will hold the trust estate in
trust for the Sponsor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code section 3801 et seq. (the "Business Trust Act"), and
that this document constitute the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust with the Secretary of State of the State of Delaware in the form attached
hereto. The Trust is hereby established by the Sponsors and the Trustees for the
purposes of (i) issuing preferred securities representing undivided beneficial
interest in the assets of the Trust ("Preferred Securities") in exchange for
cash and investing the proceeds thereof in junior subordinated debentures of the
Sponsor, (ii) issuing and selling common securities representing undivided
beneficial interests in the assets of the Trust to the Sponsor in exchange for
cash and investing the proceeds thereof in additional junior subordinated
debentures of the Sponsor and, (iii) engaging in such other activities as are
necessary, convenient or incidental thereto.
3. The Sponsor and the Trustees will enter into an amended and restated
Declaration of Trust, satisfactory to
-1-
<PAGE>
each such party and substantially in the form included as an exhibit to the 1933
Act Registration Statement referred to below, to provide for the contemplated
operation of the Trust created hereby and the issuance of the Preferred
Securities and Common Securities referred to therein. Prior to the execution and
delivery of such amended and restated Declaration of Trust, the Trustees shall
not have any duty or obligation hereunder or with respect to the trust estate,
except as otherwise required by applicable law or as may be necessary to obtain
prior to such execution and delivery any licenses, consents or approvals
required by applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, as the sponsor of the Trust, (i) to prepare and file with the
Securities and Exchange Commission (the "Commission") and execute, in each case
on behalf of the Trust, (a) a Registration Statement on Form S-3 (the "1933 Act
Registration Statement") including any pre-effective or post-effective
amendments to such Registration Statement, relating to the registration under
the Securities Act of 1933, as amended, of the Preferred Securities of the
Trust, (b) a Registration Statement, and any and all amendments thereto, filed
pursuant to Rule 462(b) under the Securities Act of 1933, and (c) a Registration
Statement on Form 8-A (the "1934 Act Registration Statement") (including all
pre-effective and post-effective amendments thereto) relating to the
registration of the Preferred Securities of the Trust under Section 12(b) of the
Securities Exchange Act of 1934, as amended; (ii) to prepare and file with the
New York 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 necessary or desirable to cause the Preferred Securities
to be listed on the New York Stock Exchange; (iii) to prepare and file and
execute on behalf of the Trust such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and other
papers and documents as shall be necessary or desirable to register the
Preferred Securities under the securities or "Blue Sky" laws of such
jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or
desirable and (iv) to negotiate the terms of and execute on behalf of the Trust
an underwriting agreement among the Trust, the Sponsor and any underwriter,
dealer or agent relating to the Preferred Securities. In the event that any
filing referred to in clauses (i)-(iii) above is required by the rules and
regulations of the Commission,
-2-
<PAGE>
the New York Stock Exchange or state securities or blue sky laws, to be executed
on behalf of the Trust by the Trustees, Stanley B. Tulin, Kevin R. Byrne and
Robert A. Gender 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 Bank of New
York and The Bank of New York (Delaware), 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 New York Stock Exchange or state securities or blue sky laws. In
connection with all of the foregoing, the Sponsor and each Trustee, solely in
its capacity as Trustee of the Trust, hereby constitutes and appoints Stanley B.
Tulin, Kevin R. Byrne, Henry Q. Conley, Adam R. Spilka and Pauline Sherman, and
each of them, 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 the Sponsor or such Trustee and in the Sponsor's or such
Trustee's name, place and stead, in any and all capacities, to sign and file (i)
any and all amendments (including post-effective amendments) to the 1933 Act
Registration Statement and the 1934 Act Registration Statement with all exhibits
thereto, and other documents in connection therewith, and (ii) a registration
statement, and any and all amendments thereto filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended 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 the Sponsor 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.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be five (5) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor which may increase or decrease the
number of Trustees; provided, however, that the number of Trustees shall in no
event be less than five (5); and provided, further that to the extent required
by the Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not
-3-
<PAGE>
a natural person, an entity which has its principal place of business in the
State of Delaware and meets other requirements imposed by applicable law.
Subject to the foregoing, the Sponsor is entitled to appoint or remove without
cause any Trustee at any time. The Trustees may resign upon thirty days prior
notice to the Sponsor.
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
The Equitable Companies Incorporated,
as Sponsor
By: /s/ Stanley B. Tulin
----------------------------------
Name: Stanley B. Tulin
Title: Executive Vice President,
Chief Financial Officer
The Bank of New York,
not in its individual capacity
but solely as Property Trustee
By: /s/ Robert A. Massimillo
----------------------------------
Name: Robert A. Massimillo
Title: Assistant Vice President
The Bank of New York (Delaware), not in its
individual capacity but solely as Delaware
Trustee
By: /s/ Mary Jane Morrissey
----------------------------------
Name: Mary Jane Morrissey
Title: Authorized Signatory
/s/ Stanley B. Tulin
---------------------------------------
not in his individual capacity
but solely as Trustee
-4-
<PAGE>
/s/ Kevin R. Byrne
---------------------------------------
not in his individual capacity
but solely as Trustee
/s/ Robert A. Gender
---------------------------------------
not in his individual capacity
but solely as Trustee
58318
-5-
CERTIFICATE OF TRUST
OF
EQ CAPITAL TRUST III
THIS Certificate of Trust of EQ Capital Trust III (the "Trust"), dated
January 14, 1998, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. Code Sections 3801 et seq.).
1. Name. The name of the business trust being formed hereby is EQ
Capital Trust III.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware is
The Bank of New York, a Delaware banking corporation, White Clay Center,
Route 273, Newark, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be effective as of
its filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
The Bank of New York (Delaware)
-------------------------------,
as Delaware Trustee
By: /s/ Mary Jane Morrissey
--------------------------,
Name: Mary Jane Morrissey
Title: Authorized Signatory
The Bank of New York
----------------------------,
as Property Trustee
By: /s/ Robert A. Massimillo
--------------------------,
Name: Robert A. Massimillo
Title: Assistant Vice President
/s/ Stanley B. Tulin
-----------------------,
as Trustee
/s/ Kevin R. Byrne
-----------------------,
as Trustee
/s/ Robert A. Gender
-----------------------,
as Trustee
DECLARATION OF TRUST, dated as of January 14, 1998, between The
Equitable Companies Incorporated, a Delaware corporation, as Sponsor, and The
Bank of New York, a New York banking corporation, not in its individual capacity
but solely as trustee (the "Property Trustee"), The Bank of New York (Delaware),
a Delaware banking corporation, not in its individual capacity but solely as
trustee (the "Delaware Trustee"), and Stanley B. Tulin, Kevin R. Byrne and
Robert A. Gender, each not in his individual capacity but solely as trustee (the
Property Trustee, Delaware Trustee and each such individual as trustee,
collectively the "Trustees"). The Sponsor and the Trustees hereby agree as
follows:
1. The trust created hereby shall be known as "EQ Capital Trust IV", in
which name the Trustees, or the Sponsor to the extent provided herein, may
conduct the business of the Trust, make and execute contracts, and sue and be
sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trustees the sum of $10. The Trustees hereby acknowledge receipt of such amount
in trust from the Sponsor, which amount shall constitute the initial trust
estate. The Trustees hereby declare that they will hold the trust estate in
trust for the Sponsor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code section 3801 et seq. (the "Business Trust Act"), and
that this document constitute the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust with the Secretary of State of the State of Delaware in the form attached
hereto. The Trust is hereby established by the Sponsors and the Trustees for the
purposes of (i) issuing preferred securities representing undivided beneficial
interest in the assets of the Trust ("Preferred Securities") in exchange for
cash and investing the proceeds thereof in junior subordinated debentures of the
Sponsor, (ii) issuing and selling common securities representing undivided
beneficial interests in the assets of the Trust to the Sponsor in exchange for
cash and investing the proceeds thereof in additional junior subordinated
debentures of the Sponsor and, (iii) engaging in such other activities as are
necessary, convenient or incidental thereto.
3. The Sponsor and the Trustees will enter into an amended and restated
Declaration of Trust, satisfactory to
-1-
<PAGE>
each such party and substantially in the form included as an exhibit to the 1933
Act Registration Statement referred to below, to provide for the contemplated
operation of the Trust created hereby and the issuance of the Preferred
Securities and Common Securities referred to therein. Prior to the execution and
delivery of such amended and restated Declaration of Trust, the Trustees shall
not have any duty or obligation hereunder or with respect to the trust estate,
except as otherwise required by applicable law or as may be necessary to obtain
prior to such execution and delivery any licenses, consents or approvals
required by applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, as the sponsor of the Trust, (i) to prepare and file with the
Securities and Exchange Commission (the "Commission") and execute, in each case
on behalf of the Trust, (a) a Registration Statement on Form S-3 (the "1933 Act
Registration Statement") including any pre-effective or post-effective
amendments to such Registration Statement, relating to the registration under
the Securities Act of 1933, as amended, of the Preferred Securities of the
Trust, (b) a Registration Statement, and any and all amendments thereto, filed
pursuant to Rule 462(b) under the Securities Act of 1933, and (c) a Registration
Statement on Form 8-A (the "1934 Act Registration Statement") (including all
pre-effective and post-effective amendments thereto) relating to the
registration of the Preferred Securities of the Trust under Section 12(b) of the
Securities Exchange Act of 1934, as amended; (ii) to prepare and file with the
New York 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 necessary or desirable to cause the Preferred Securities
to be listed on the New York Stock Exchange; (iii) to prepare and file and
execute on behalf of the Trust such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and other
papers and documents as shall be necessary or desirable to register the
Preferred Securities under the securities or "Blue Sky" laws of such
jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or
desirable and (iv) to negotiate the terms of and execute on behalf of the Trust
an underwriting agreement among the Trust, the Sponsor and any underwriter,
dealer or agent relating to the Preferred Securities. In the event that any
filing referred to in clauses (i)-(iii) above is required by the rules and
regulations of the Commission,
-2-
<PAGE>
the New York Stock Exchange or state securities or blue sky laws, to be executed
on behalf of the Trust by the Trustees, Stanley B. Tulin, Kevin R. Byrne and
Robert A. Gender 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 Bank of New
York and The Bank of New York (Delaware), 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 New York Stock Exchange or state securities or blue sky laws. In
connection with all of the foregoing, the Sponsor and each Trustee, solely in
its capacity as Trustee of the Trust, hereby constitutes and appoints Stanley B.
Tulin, Kevin R. Byrne, Henry Q. Conley, Adam R. Spilka and Pauline Sherman, and
each of them, 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 the Sponsor or such Trustee and in the Sponsor's or such
Trustee's name, place and stead, in any and all capacities, to sign and file (i)
any and all amendments (including post-effective amendments) to the 1933 Act
Registration Statement and the 1934 Act Registration Statement with all exhibits
thereto, and other documents in connection therewith, and (ii) a registration
statement, and any and all amendments thereto filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended 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 the Sponsor 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.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be five (5) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor which may increase or decrease the
number of Trustees; provided, however, that the number of Trustees shall in no
event be less than five (5); and provided, further that to the extent required
by the Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not
-3-
<PAGE>
a natural person, an entity which has its principal place of business in the
State of Delaware and meets other requirements imposed by applicable law.
Subject to the foregoing, the Sponsor is entitled to appoint or remove without
cause any Trustee at any time. The Trustees may resign upon thirty days prior
notice to the Sponsor.
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
The Equitable Companies Incorporated,
as Sponsor
By: /s/ Stanley B. Tulin
----------------------------------
Name: Stanley B. Tulin
Title: Executive Vice President,
Chief Financial Officer
The Bank of New York,
not in its individual capacity
but solely as Property Trustee
By: /s/ Robert A. Massimillo
-----------------------------------
Name: Robert A. Massimillo
Title: Assistant Vice President
The Bank of New York (Delaware), not in its
individual capacity but solely as Delaware
Trustee
By: /s/ Mary Jane Morrissey
-----------------------
Name: Mary Jane Morrissey
Title: Authorized Signatory
/s/ Stanley B. Tulin
---------------------------------------
not in his individual capacity
but solely as Trustee
-4-
<PAGE>
/s/ Kevin R. Byrne
---------------------------------------
not in his individual capacity
but solely as Trustee
/s/ Robert A. Gender
---------------------------------------
not in his individual capacity
but solely as Trustee
58318
-5-
CERTIFICATE OF TRUST
OF
EQ CAPITAL TRUST IV
THIS Certificate of Trust of EQ Capital Trust IV (the "Trust"), dated
January 14, 1998, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. Code Sections 3801 et seq.).
1. Name. The name of the business trust being formed hereby is EQ
Capital Trust IV.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware is
The Bank of New York, a Delaware banking corporation, White Clay Center,
Route 273, Newark, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be effective as of
its filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
The Bank of New York (Delaware)
-------------------------------,
as Delaware Trustee
By: /s/ Mary Jane Morrissey
--------------------------,
Name: Mary Jane Morrissey
Title: Authorized Signatory
The Bank of New York
----------------------------,
as Property Trustee
By: /s/ Robert A. Massimillo
--------------------------,
Name: Robert A. Massimillo
Title: Assistant Vice President
/s/ Stanley B. Tulin
-----------------------,
as Trustee
/s/ Kevin R. Byrne
-----------------------,
as Trustee
/s/ Robert A. Gender
-----------------------,
as Trustee
EXHIBIT 4.16
================================================================================
FORM OF
AMENDED AND RESTATED DECLARATION OF TRUST
OF
EQ CAPITAL TRUST [ ]
---------------------------------------
DATED AS OF ___________, 19__
---------------------------------------
================================================================================
<PAGE>
TABLE OF CONTENTS*
Page
----
PARTIES......................................................... 1
RECITALS:
Recitals........................................................ 1
ARTICLE I
DEFINITIONS
SECTION 1.1 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.................................. 1
Affiliate......................................... 2
Book Entry Interest............................... 2
Business Day...................................... 2
Business Trust Act................................ 2
Certificate....................................... 2
Certificate of Trust.............................. 2
Clearing Agency................................... 2
Clearing Agency Participant....................... 2
Closing Date...................................... 2
Code.............................................. 2
Commission........................................ 2
Common Security................................... 2
Common Security Certificate....................... 3
Covered Person.................................... 3
Debenture Trustee................................. 3
Debentures........................................ 3
Definitive Preferred Security
Certificates...................................... 3
Delaware Trustee.................................. 3
Depositary Agreement.............................. 3
Distribution...................................... 3
DTC............................................... 3
Event of Default.................................. 3
Exchange Act...................................... 3
Fiscal Year....................................... 3
Global Certificate................................ 3
Holder............................................ 3
Indemnified Person................................ 3
Indenture......................................... 3
Indenture Event of Default........................ 3
- - -----------------
* 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.
(i)
<PAGE>
Investment Company................................ 3
Investment Company Act............................ 4
Legal Action...................................... 4
Liquidation Distribution.......................... 4
Majority in liquidation amount
of the Securities............................... 4
Ministerial Action................................ 4
Option Closing Date............................... 4
Original Declaration.............................. 4
Paying Agent...................................... 4
Person............................................ 4
Preferred Guarantee............................... 4
Preferred Security................................ 4
Preferred Security Beneficial
Owner............................................. 4
Preferred Security
Certificate....................................... 4
Property Trustee.................................. 4
Property Account.................................. 4
Quorum............................................ 4
Regular Trustee................................... 5
Related Party..................................... 5
Resignation Request............................... 5
Responsible Officer............................... 5
Rule 3a-7......................................... 5
Securities........................................ 5
Securities Act.................................... 5
66-2/3% in liquidation amount
of the Securities................................. 5
Special Event..................................... 5
Sponsor or EQ .................................... 5
Successor Delaware Trustee........................ 5
Successor Property Trustee........................ 5
10% in liquidation amount of
the Securities.................................... 5
Treasury Regulations.............................. 6
Trustee or Trustees............................... 6
Trust Indenture Act............................... 6
Underwriting Agreement............................ 6
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act;
Application........................................ 6
SECTION 2.2 Lists of Holders of Preferred
Securities......................................... 6
SECTION 2.3 Reports by the Property Trustee.................... 7
SECTION 2.4 Periodic Reports to the Property
Trustee............................................ 7
SECTION 2.5 Evidence of Compliance with
Conditions Precedent............................... 7
SECTION 2.6 Events of Default; Waiver.......................... 7
SECTION 2.7 Disclosure of Information.......................... 8
(ii)
<PAGE>
ARTICLE III
ORGANIZATION
SECTION 3.1 Name ............................................ 9
SECTION 3.2 Office............................................. 9
SECTION 3.3 Insurance of the Trust
Securities......................................... 9
SECTION 3.4 Purchase of Debentures............................. 9
SECTION 3.5 Purpose............................................ 10
SECTION 3.6 Authority.......................................... 10
SECTION 3.7 Title to Property of the Trust..................... 10
SECTION 3.8 Powers and Duties of the
Regular Trustees................................... 11
SECTION 3.9 Prohibition of Actions by Trust
and Trustees....................................... 13
SECTION 3.10 Powers and Duties of the
Property Trustee................................... 13
SECTION 3.11 Delaware Trustee................................... 15
SECTION 3.12 Certain Rights and Duties of the
Property Trustee................................... 15
SECTION 3.13 Registration Statement and
Related Matters.................................... 17
SECTION 3.14 Filing of Amendments to
Certificate of Trust............................... 18
SECTION 3.15 Execution of Documents by
Regular Trustees................................... 18
SECTION 3.16 Trustees Not Responsible for
Recitals or Issuance of
Securities......................................... 18
SECTION 3.17 Duration of Trust.................................. 19
ARTICLE IV
SPONSOR
SECTION 4.1 Purchase of Common Securities
by Sponsor......................................... 19
(iii)
<PAGE>
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees;
Qualifications..................................... 19
SECTION 5.2 Appointment, Removal and
Resignation of Trustees............................ 21
SECTION 5.3 Vacancies Among Trustees........................... 22
SECTION 5.4 Effect of Vacancies................................ 22
SECTION 5.5 Meetings........................................... 23
SECTION 5.6 Delegation of Power................................ 23
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions...................................... 23
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding
Securities......................................... 24
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust............................... 25
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities............................. 25
SECTION 9.2 Transfer of Certificates........................... 26
SECTION 9.3 Deemed Security Holders............................ 26
SECTION 9.4 Book Entry Interests............................... 26
SECTION 9.5 Notices to Holders of
Certificates....................................... 27
SECTION 9.6 Appointment of Successor
Clearing Agency.................................... 27
SECTION 9.7 Definitive Preferred Securities
Certificates....................................... 27
SECTION 9.8 Mutilated, Destroyed, Lost or
Stolen Certificates................................ 27
(iv)
<PAGE>
ARTICLE X
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 10.1 Exculpation........................................ 28
SECTION 10.2 Indemnification.................................... 28
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year........................................ 29
SECTION 11.2 Certain Accounting Matters......................... 29
SECTION 11.3 Banking............................................ 29
SECTION 11.4 Withholding........................................ 30
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments......................................... 30
SECTION 12.2 Meetings of the Holders of
Securities; Action by Written
Consent............................................ 31
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties
of Property Trustee................................ 32
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices............................................ 33
SECTION 14.2 Undertaking for Costs.............................. 34
SECTION 14.3 Governing Law...................................... 34
SECTION 14.4 Headings........................................... 34
SECTION 14.5 Partial Enforceability............................. 34
SECTION 14.6 Counterparts....................................... 34
SECTION 14.7 Intention of the Parties........................... 34
SECTION 14.8 Successors and Assigns............................. 35
SIGNATURES AND SEALS............................................. 35
EXHIBIT A: CERTIFICATE OF TRUST
EXHIBIT B: TERMS OF THE PREFERRED SECURITIES
EXHIBIT C: TERMS OF THE COMMON SECURITIES
(v)
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
EQ CAPITAL TRUST [ ]
__________, 19__
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of __________, 199__ 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"), The
Equitable Companies Incorporated, a Delaware corporation, as trust sponsor ("EQ"
or the "Sponsor"), and by the holders, from time to time, of undivided
beneficial interests in the assets of the Trust to be issued pursuant to this
Declaration.
WHEREAS, the Sponsor and the Trustees entered into a Declaration of
Trust dated as of January 15, 1998 (the "Original Declaration") in order to
establish a statutory business trust (the "Trust") under the Business Trust Act
(as hereinafter defined);
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 January 16, 1998;
WHEREAS, the Trustees and the Sponsor desire to continue the Trust
pursuant to the Business Trust Act for the purpose of, as described more fully
in Sections 3.3 and 3.4 hereof, (i) issuing and selling Preferred Securities (as
defined herein) representing preferred undivided beneficial interests in the
assets of the Trust for cash and investing the proceeds thereof in Debentures
(as hereinafter defined) of EQ issued under the Indenture (as hereinafter
defined) to be held as assets of the Trust and (ii) issuing and selling Common
Securities (as defined herein) representing common undivided beneficial
interests in the assets of the Trust to EQ in exchange for cash and investing
the proceeds thereof in additional Debentures issued under the Indenture to be
held as assets of the Trust; and
NOW, THEREFORE, it being the intention of the parties hereto that the
Trust constitute a business trust under the Business Trust Act, that the
Original 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 the cash proceeds and Debentures referred to in
clauses (i) and (ii) of the preceding 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) representing undivided beneficial
interests in the assets of the Trust issued hereunder, subject to the provisions
of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 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
1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
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<PAGE>
(c) all references to "the Declaration" or "this Declaration" are to
this Amended and Restated Declaration of Trust (including Exhibits A, B and C
hereto (the "Exhibits")) as modified, supplemented or amended from time to time;
(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; and
(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 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 9.4.
"Business Day" means any day other than a 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 Section 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.
"Closing Date" means the Closing Date as specified in the Underwriting
Agreement, which date is also the date of execution and delivery of this
Declaration.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation. A reference to a specific section ((Sec.))
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.
"Commission" means the Securities and Exchange Commission.
"Common Guarantee" means the Guarantee Agreement dated as of
_______________, of EQ in respect of the Common Securities.
"Common Security" has the meaning specified in Section 7.1(b).
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<PAGE>
"Common Security Certificate" means a definitive certificate in fully
registered form representing a Common Security substantially in the form of
Annex I to Exhibit C.
"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, employees, representatives or agents of EQ
or its Affiliates and (iii) the Holders from time to time of the Securities.
"Debenture Trustee" means The Bank of New York, as trustee under the
Indenture until a successor is appointed thereunder and thereafter means such
successor trustee.
"Debentures" means the series of Junior Subordinated Debentures issued
by EQ under the Indenture to the Property Trustee and entitled the "____% Junior
Subordinated Debentures due [ ]".
"Definitive Preferred Security Certificates" has the meaning set forth
in Section 9.4.
"Delaware Trustee" has the meaning set forth in Section 5.1(a)(3).
"Depositary Agreement" means the agreement among the Trust, the
Property Trustee and DTC dated as of the Closing Date, as the same may be
amended or supplemented from time to time.
"Distribution" means a distribution payable to Holders of Securities in
accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Event of Default" in respect of the Securities means an Indenture
Event of Default has occurred and is continuing in respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time or any successor legislation.
"Fiscal Year" has the meaning specified in Section 11.1.
"Global Certificate" has the meaning set forth in Section 9.4.
"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 officers, directors, shareholders, members, partners, employees,
representatives or agents of any Trustee, or any employee or agent of the Trust
or its Affiliates.
"Indenture" means the Junior Subordinated Indenture dated as of
___________, 199__ between EQ and the Debenture Trustee as supplemented by the [
] Supplemental Indenture thereto dated as of ____________, 199__, pursuant to
which the Debentures are to be issued.
"Indenture Event of Default" means an event or condition defined as an
"Event of Default" with respect to the Debentures under Section 5.1 of the
Indenture has occurred and is continuing.
"Investment Company" means an investment company as defined in the
Investment Company Act.
- 3 -
<PAGE>
"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 3.8(g).
"Liquidation Distribution" has the meaning set forth in Exhibits B and
C hereto establishing the terms of the Securities.
"Majority in liquidation amount of the Securities" means, except as
otherwise required by the Trust Indenture Act and except as provided in the
penultimate paragraph of paragraph 5 of Exhibit B hereto, Holder(s) of
outstanding Securities voting together as a single class or, as the context may
require, Holder(s) of outstanding Preferred Securities or Common Securities
voting separately as a class, who are the record owners of a relevant class of
Securities whose liquidation amount (being 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 liquidation amount of all outstanding Securities of such class.
"Ministerial Action" has the meaning set forth in the terms of the
Securities as set forth in Exhibits B and C hereto.
"Option Closing Date" means any Option Closing Date as specified in
the 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.
"Preferred Guarantee" means the Guarantee Agreement dated as of
__________, 199__ of EQ in respect of the Preferred Securities.
"Preferred Security" has the meaning specified in Section 7.1(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 substantially in the
form of Annex I to Exhibit B.
"Property Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.1(c) and having the duties set forth for the
Property Trustee herein.
"Property Account" has the meaning specified in Section 3.10(c)(i).
"Quorum" means a majority of the Regular Trustees or, if there are only
two Regular Trustees, both such Regular Trustees.
- 4 -
<PAGE>
"Regular Trustee" means any Trustee other than the Property Trustee and
the Delaware Trustee.
"Related Party" means any direct or indirect wholly owned subsidiary of
EQ or any other Person which owns, directly or indirectly, 100% of the
outstanding voting securities of EQ.
"Resignation Request" has the meaning specified in Section 5.2(d).
"Responsible Officer" means, with respect to the Property 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 assistant trust officer or any
other officer of the Property 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.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act or any
successor rule thereunder.
"Rule 3a-7" means Rule 3a-7 under the Investment Company Act or any
successor rule thereunder.
"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.
"66-2/3% in liquidation amount of the Securities" means, except as
otherwise required by the Trust Indenture Act and except as provided in the
penultimate paragraph of paragraph 5 of Exhibit B hereto, Holder(s) of
outstanding Securities voting together as a single class or, as the context may
require, Holder(s) of outstanding Preferred Securities or Common Securities,
voting separately as a class, who are the record owners of a relevant class of
Securities whose liquidation amount (being 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 66-2/3%
or more of the liquidation amount of all outstanding Securities of such class.
"Sponsor" or "EQ" means The Equitable Companies Incorporated, a
Delaware corporation, or any successor entity in a merger, in its capacity as
sponsor of the Trust.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, association, joint-stock company, trust or other entity of which at
least a majority of capital stock having ordinary voting power for the election
of directors or other governing body is owned, directly or indirectly, by such
Person.
"Successor Delaware Trustee" has the meaning specified in Section
5.2(b)(ii).
"Successor Property Trustee" means a successor Trustee possessing the
qualifications to act as Property Trustee under Section 5.1(c).
"Tax Event" has the meaning specified in Section 4 of Exhibit B.
"10% in liquidation amount of the Securities" means, except as
otherwise required by the Trust Indenture Act and except as provided in the
penultimate paragraph of paragraph 5 of Exhibit B hereto, Holder(s) of
outstanding Securities voting together as a single class or, as the context may
require, Holder(s) of outstanding Preferred Securities or Common Securities,
- 5 -
<PAGE>
voting separately as a class, who are the record owners of a relevant class of
Securities whose liquidation amount (being 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 liquidation amount of all outstanding Securities of such class.
"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).
"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 Trustees 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.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Underwriting Agreement" means the Underwriting Agreement dated as of
__________, 199__ among the Trust, the Sponsor and ____________________________,
as representative of the several underwriters named therein.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 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 Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control;
(c) 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 2.2 Lists of Holders of Preferred Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide the Property Trustee with such information as is required under
Section 312(a) of the Trust Indenture Act semi-annually on or before the last
day of June and December in each year and at such other times and in the manner
provided in Section 312(a); and
(b) the Property Trustee shall comply with its obligations under
Sections 310(b), 311 and 312(b) of the Trust Indenture Act.
- 6 -
<PAGE>
SECTION 2.3 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 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 Property Trustee
shall also comply with the requirements of Section 313(d) of the Trust Indenture
Act.
SECTION 2.4 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 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).
SECTION 2.5 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 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 2.6 Events of Default; Waiver.
(a) Subject to Section 2.6(c), Holders of Preferred Securities may, by
vote of at least a Majority in liquidation amount of the Preferred Securities
(A) in accordance with the terms of the 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, or (B) on behalf of the Holders of all Preferred Securities, waive any
past Event of Default in respect of the Preferred Securities and its
consequences; provided that if the Event of Default arises out of an Indenture
Event of Default:
(i) which is not waivable under the Indenture, the Event of Default
under this Declaration shall also be not waivable; or
(ii) which requires the consent or vote of (1) holders of Debentures
representing a specified percentage greater than a majority in principal
amount of the Debentures, or (2) each holder of Debentures, the Event of
Default under this Declaration may only be waived by, in the case of clause
(1) above, the vote of Holders of Preferred Securities representing such
specified percentage in liquidation amount of the Preferred Securities or,
in the case of clause (2) above, each Holder of Preferred Securities.
Upon such waiver, any such default shall cease to exist, and any Event of
Default with respect to the Preferred Securities arising therefrom shall be
deemed to have been cured for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other default or Event of Default with
respect to the Preferred Securities or impair any right consequent thereon.
(b) Subject to Section 2.6(c), Holders of Common Securities may by vote
of at least a Majority in liquidation amount of the Common Securities, (A) in
accordance with the terms of the Common Securities, direct the time, method
- 7 -
<PAGE>
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 or
(B) on behalf of the Holders of all of the Common Securities, waive any past
Event of Default with respect to the Common Securities and its consequences,
provided that, if the Event of Default arises out of an Indenture Event of
Default:
(i) which is not waivable under the Indenture, except where the Holders
of the Common Securities are deemed to have waived such Event of Default
under the Declaration as provided below, the Event of Default under this
Declaration shall also not be waivable; or
(ii) which requires the consent or vote of (1) holders of Debentures
representing a specified percentage greater than a majority in principal
amount of the Debentures or (2) each holder of Debentures, except where the
holders of the Common Securities are deemed to have waived such Event of
Default under this Declaration as provided below, the Event of Default under
this Declaration may only be waived by, in the case of clause (1) above, the
vote of Holders of Common Securities representing such specified percentage
of the aggregate liquidation amount of the Common Securities or, in the case
of clause (2) above, each holder of Common Securities; and
provided, further, that each Holder of Common Securities will be deemed to have
waived any Event of Default with respect to the Common Securities and its
consequences until all Events of Default with respect to the Preferred
Securities have been cured, waived by the Holders of Preferred Securities as
provided in this Declaration or otherwise eliminated and until all Events of
Default with respect to the Preferred Securities have been so cured, waived or
otherwise eliminated, the Property Trustee will be deemed to be acting solely on
behalf of the Holders of the Preferred Securities and only the Holders of the
Preferred Securities will have the right to direct the Property Trustee in
accordance with the terms of this Declaration or the Securities. In the event
that any Event of Default with respect to the Preferred Securities is waived by
the Holders of Preferred Securities as provided in this Declaration, the Holders
of Common Securities agree that such waiver shall also constitute the waiver of
such Event of Default with respect to the Common Securities for all purposes
under this Declaration without any further act, vote or consent of the Holders
of the Common Securities. Subject to the foregoing provisions of this Section
2.6(b), upon such waiver, any such default shall cease to exist and any Event of
Default with respect to the Common Securities arising therefrom shall be deemed
to have been cured for every purpose of this Declaration, but no such waiver
shall extend to any subsequent or other default or Event of Default with respect
to the Common Securities or impair any right consequent thereon.
(c) The right of any Holder of Securities to receive payment of
Distributions on the Securities in accordance with this Declaration and the
terms of the Securities set forth in Exhibits B and C 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.
(d) As provided in the terms of the Securities set forth in Exhibits B
and C hereto, a waiver of an Indenture Event of Default by the Property Trustee
at the written direction of the Holders of the Preferred Securities constitutes
a waiver of the corresponding Event of Default under this Declaration in respect
of the Securities.
SECTION 2.7 Disclosure of Information.
The disclosure of information as to the names and addresses of the
Holders of the Securities in accordance with Section 312 of the Trust Indenture
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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 Property Trustee be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust Indenture Act.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust continued by this Declaration is named "EQ Capital Trust [ ]"
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 3.2 Office.
The address of the principal office of the Trust is c/o The Equitable
Companies Incorporated, 1290 Avenue of the Americas, New York, New York 10104.
Upon ten days' written notice to the Holders, the Regular Trustees may change
the location of the Trust's principal office.
SECTION 3.3 Issuance of the Trust Securities.
On __________, 199_ the Sponsor, on behalf of the Trust and pursuant to
the Original Declaration, executed and delivered the Underwriting Agreement. On
the Closing Date and contemporaneously with the execution and delivery of this
Declaration, the Regular Trustees, on behalf of the Trust, shall execute and
deliver to (i) the underwriters named in the Underwriting Agreement, a Global
Certificate, registered in the name of the nominee of the initial Clearing
Agency as specified in Section 9.4, in an aggregate amount of ___________
Preferred Securities having an aggregate liquidation amount of $__________,
against receipt of the aggregate purchase price of such Preferred Securities of
$___________, and (ii) the Sponsor, Common Securities Certificates, registered
in the name of the Sponsor, in an aggregate amount of ________ Common Securities
having an aggregate liquidation amount of $____________, against receipt of the
aggregate purchase price of such Common Securities of $___________. In the event
and to the extent the overallotment option granted by the Trust pursuant to the
Underwriting Agreement is exercised by such underwriters, on the Option Closing
Date the Regular Trustees, on behalf of the Trust, shall execute and deliver to
(i) such underwriters a Global Certificate, registered in the name of the
nominee of the initial Clearing Agency as specified in Section 9.4, in an
aggregate amount (together with all prior exercises of the overallotment option)
of up to ___________ Preferred Securities having an aggregate liquidation amount
of up to $___________, against receipt of the aggregate purchase price of such
Preferred Securities of up to $___________, and (ii) the Sponsor, Common
Securities Certificates, registered in the name of the Sponsor, in an aggregate
amount (together with all prior exercises of the overallotment option) of up to
____________ Common Securities having an aggregate liquidation amount of up to
$__________, against receipt of the aggregate purchase price of such Common
Securities of up to $__________.
SECTION 3.4 Purchase of Debentures.
On the Closing Date and contemporaneously with the execution and
delivery of this Declaration, the Regular Trustees, on behalf of the Trust,
shall purchase from EQ with the proceeds received by the Trust from the
sale of the Securities on such date pursuant to Section 3.3, at a purchase price
of 100% of the principal amount thereof, Debentures, registered in the name of
the Property Trustee and having an aggregate principal amount equal to
$___________, and, in satisfaction of the purchase price for such Debentures,
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the Regular Trustee, on behalf of the Trust, shall deliver or cause to be
delivered to the Sponsor the sum of $___________. In the event the overallotment
option granted by the Trust with respect to the Preferred Securities pursuant to
the Underwriting Agreement is exercised by the underwriters named therein, on
the Option Closing Date the Regular Trustees, on behalf of the Trust, shall
purchase from EQ with the proceeds received by the Trust from the sale of the
Preferred Securities on such date pursuant to Section 3.3, at a purchase price
of 100% of the principal amount thereof, additional Debentures, registered in
the name of the Property Trustee and having an aggregate principal amount
(together with all prior exercises of the overallotment option) of up to
$__________, and, in satisfaction of the purchase price for such Debentures, the
Regular Trustees, on behalf of the Trust, shall deliver or cause to be delivered
to the Sponsor an amount equal to the aggregate principal amount of the
Debentures being purchased.
SECTION 3.5 Purpose.
The exclusive purposes and functions of the Trust are: (a)(i) to issue
and sell Preferred Securities for cash and use the proceeds of such sales to
acquire from EQ Debentures issued under the Indenture having an aggregate
principal amount equal to the aggregate liquidation amount of the Preferred
Securities so issued and sold; (ii) to enter into such agreements and
arrangements as may be necessary in connection with the sale of Preferred
Securities to the initial purchasers thereof (including the Underwriting
Agreement) and to take all action, and exercise such discretion, as may be
necessary or desirable in connection 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 the Preferred Securities; and (iii) to
issue and sell Common Securities to EQ for cash and use the proceeds of such
sale to purchase as trust assets an equal aggregate principal amount of
Debentures issued under the Indenture; and (b) except as otherwise limited
herein, to engage in only those other activities necessary, convenient or
incidental thereto. The Trust shall not borrow money, issue debt or reinvest
proceeds derived from investments, pledge any of its assets or at any time while
the Securities are outstanding, otherwise undertake (or permit to be undertaken)
any 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 3.6 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 an action taken by the
Property Trustee in accordance with its powers shall constitute the act of and
serve to bind the Trust. 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. 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 3.7 Title to Property of the Trust.
Except as provided in Section 3.10 with respect to the Debentures and
the Property Account 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
undivided beneficial interest in the assets of the Trust.
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SECTION 3.8 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, authority and duty
to cause the Trust, and shall cause the Trust, to engage in the following
activities:
(a) to issue Preferred Securities and Common Securities, in each case
in accordance with this Declaration; provided, however, that the Trust may issue
no more than one series of Preferred Securities and no more than one series of
Common Securities, and, provided further, that there shall be no interests in
the Trust other than the Securities and the issuance of Securities shall be
limited to (x) a one-time, simultaneous issuance of both Preferred Securities
and Common Securities on the Closing Date and (y) any subsequent issuance of
Preferred Securities and Common Securities on an Option Closing Date pursuant to
an exercise of the over-allotment option granted to underwriters in the
Underwriting Agreement;
(b) in connection with the issuance of the Preferred 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 Debentures with the proceeds of the sale
of the Preferred Securities and Common Securities; provided, however, that the
Regular Trustees shall cause legal title to all of the Debentures to be vested
in, and the Debentures to be held of record in the name of, the Property Trustee
for the benefit of the Holders of the Preferred Securities and the Common
Securities;
(d) to cause the Trust to enter into the Underwriting Agreement and
such other agreements and arrangements as may be necessary or desirable in
connection with the sale of Preferred 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
consult with 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 Preferred Securities and Common Securities as to such actions and
applicable record dates;
(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;
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(j) to give the certificate to the Property Trustee required by Section
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 the 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 Trustee pursuant to the terms of the Securities set forth in
Exhibits B and C hereto;
(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
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 the Securities or
to enable the Trust to effect the purposes for which the Trust has been created;
(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 3.8, 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;
(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 Rule 3a-7 and Section 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
3.8 in a manner which is consistent with the purposes and functions of
the Trust set out in Section 3.5 and the Regular Trustees shall not take any
action which is inconsistent with the purposes and functions of the Trust set
forth in Section 3.5.
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Subject to this Section 3.8, 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 3.9 Prohibition of Actions by Trust and Trustees.
The Trust shall not, and the Trustees (including the Property Trustee)
shall cause the Trust not to, engage in any activity other than as required or
authorized by this Declaration. In particular, the Trust shall not and the
Trustees (including the Property Trustee) shall not:
(a) invest any proceeds received by the Trust from holding the
Debentures but shall promptly distribute all such proceeds to Holders of
Securities pursuant to the terms of this Declaration and of the 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 Debentures;
(e) possess any power or otherwise act in such a way as to vary the
Trust assets or the terms of the 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;
(g) incur any indebtedness for borrowed money; or
(h) other than as provided in this Declaration (including Exhibit B)
(i) direct the time, method and place of exercising any trust or power conferred
upon the Debenture Trustee with respect to the Debentures, (ii) waive any past
default that is waivable under Section 5.7 of the Indenture, (iii) exercise any
right to rescind or annul any declaration that the principal of all of the
Debentures shall be due and payable or (iv) consent to any amendment,
modification or termination of the Indenture or the Debentures, where such
consent shall be required, unless in the case of this clause (h) the Property
Trustee shall have received a written 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 fail to be classified for United States
federal income tax purposes as a grantor trust.
SECTION 3.10 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and held of
record in the name of the Property Trustee in trust for the benefit of the
Holders of the Securities. The right, title and interest of the Property Trustee
to the Debentures shall vest automatically in each Person who may
hereafter be appointed as Property Trustee in accordance with Article V and upon
such vesting the right, title and interest of the transferring Property Trustee
to the Debentures shall cease. 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 Debentures 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:
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(i) establish and maintain a segregated non-interest bearing bank
account (the "Property Account") in the name of and under the exclusive
control of the Property Trustee on behalf of the Holders of the Securities
and on the receipt of payments of funds made in respect of the Debentures
held by the Property Trustee, deposit such funds into the Property Account
and, without any further acts of the Property Trustee or the Regular
Trustees, promptly make payments to the Holders of the Preferred Securities
and Common Securities from the Property Account in accordance with Section
6.1. Funds in the Property Account shall be held uninvested, and without
liability for interest thereon, until disbursed in accordance with this
Declaration. The 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 by a nationally recognized statistical
rating organization;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect promptly the redemption of the Preferred Securities
and the Common Securities to the extent the Debentures are redeemed or
mature;
(iii) upon notice of distribution issued by the Regular Trustees in
accordance with the terms of the Preferred Securities and the Common
Securities, engage in such ministerial activities as shall be necessary or
appropriate to effect promptly the distribution pursuant to terms of the
Securities of Debentures to Holders of Securities upon the occurrence of a
Special Event; and
(iv) have the legal power to exercise all of the rights, powers and
privileges of a holder of the Debentures under the Indenture and, if an
Event of Default occurs and is continuing, the Property Trustee, subject to
Section 2.6(b), shall for the benefit of the Holders of the Securities,
enforce its rights as holder of the Debentures under the Indenture, subject
to the rights of the Holders of the Preferred 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
the Securities set forth in Exhibits B and C hereto.
(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 the Property Account, and all Debentures
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 90 days after the occurrence of
a default with respect to the Securities, transmit by mail, first class postage
prepaid, to the holders of the Securities, as their names and addresses appear
upon the register, notice of all defaults with respect to the 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 an Indenture Event of Default, not including
any periods of grace provided for in the Indenture and irrespective of the
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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 of the Debentures, 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 Securities. The Property Trustee shall not be
deemed to have knowledge of any default, except (i) a default in the payment of
principal, premium or interest on the Debentures 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 Securities pursuant to the terms of the
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 the
Common Securities and, if the Preferred Securities are not in book entry only
form, the Preferred Securities and, subject to Section 3.8(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 the
Preferred Securities. Any such Paying Agent shall comply with Section 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 3.8(r).
(j) The Property Trustee shall give prompt written notice to the
Holders of the Securities of any notice received by it from EQ of its election
to defer payments of interest on the Debentures by extending the interest
payment period with respect thereto.
(k) 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 3.8.
(l) 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 purposes and functions of the Trust set out in Section 3.5, and the
Property Trustee shall not take any action which is inconsistent with the
purposes and functions of the Trust set forth in Section 3.5.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other than
Section 5.1(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 and the Property Trustee described in
this Declaration. Except as set forth in Section 5.1(a)(3), the Delaware Trustee
shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 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.
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(a) The Property Trustee, before the occurrence of an Event of Default
and after the curing or waiving 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 2.6), 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
(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 the Indenture, 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
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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 faith on its part and, if the Trust is excluded from the
definition of Investment Company solely by means of Rule 3a-7, subject to
the requirements of Rule 3a-7, request and rely upon a certificate, which
shall comply with the provisions of Section 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; and
(v) Any action taken by the Property Trustee or its agents hereunder
shall bind the Holders of the Securities and the signature of the Property
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 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.
SECTION 3.13 Registration Statement and Related Matters.
In accordance with the Original Declaration, EQ and the Trustees have
authorized and directed, and hereby confirm the authorization of, EQ, as the
sponsor of the Trust, (i) to file with the Commission and execute, in each case
on behalf of the Trust, (a) the Registration Statement on Form S-3 (File Nos.
333-________, 333-________, 333-________, 333-________, 333-________,) (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 the
Preferred Securities of the Trust 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 the Trust under Section 12(b) of the
Exchange Act; (ii) to file with the New York Stock Exchange and execute on
behalf of the Trust a listing application and all other applications,
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statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities to be listed on the New York
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 EQ on behalf of the Trust may deem
necessary or desirable and (iv) to execute on behalf of the Trust the
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
New York 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 New York Stock Exchange or
state securities or blue sky laws. In connection with all of the foregoing, EQ
and each Trustee, solely in its capacity as Trustee of the Trust, have
constituted and appointed, and hereby confirm the appointment of Stanley B.
Tulin, Kevin R. Byrne, Robert A. Gender, Henry Q. Conley, Adam R. Spilka and
Pauline Sherman, 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 EQ or such Trustee or in EQ'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 any subsequent registration statement filed
pursuant to Rule 462(b) under the 1933 Act 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 EQ
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 January 16, 1998 is attached hereto as Exhibit A. On or
after the date of execution of this Declaration, the Trustees shall cause 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
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 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
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Declaration or the Securities.
SECTION 3.17 Duration of Trust.
The Trust, absent termination pursuant to the provisions of Article
VIII hereof, shall have existence until ___________, [______________].
ARTICLE IV
SPONSOR
SECTION 4.1 Purchase of Common Securities by Sponsor.
On the Closing Date, and on any Option Closing Date, the Sponsor will
purchase Common Securities issued by the Trust at the same time as the Preferred
Securities to be issued on such date are issued, each such purchase to be in an
amount which will cause the Sponsor to hold, immediately after each such
purchase, Common Securities equal to at least 3% of the total capital of the
Trust.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees; Qualifications.
(a) The number of Trustees initially shall be five (5). At any time
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(i) before the issuance of the 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 the 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 representing
a Majority in liquidation amount of the Common Securities 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 cases the number of Trustees shall be at least three (3);
(2) at least a majority of the Trustees shall at all times be officers,
directors or employees of EQ or its subsidiaries;
(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 3.9 shall have no application; and
(4) there shall at all times be a Property Trustee hereunder which
shall satisfy the requirements of Section 5.1(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:
Stanley B. Tulin
Kevin R. Byrne
Robert A. Gender
c/o The Equitable Companies Incorporated
1290 Avenue of the Americas
New York, New York 10104
(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;
(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
5.1(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; and
(iii) if the Trust is excluded from the definition of an Investment
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Company solely by reason of Rule 3a-7 and to the extent Rule 3a-7 requires a
trustee having certain qualifications to hold title to the "eligible assets"
(as defined in Rule 3a-7) of the Trust, the Property Trustee shall possess
those qualifications.
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 5.2(d). If the
Property Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Property Trustee and
the Holders of the Common Securities (as if such Holders were the obligor
referred to in Section 310(b) of the Trust Indenture Act) shall in all respects
comply with the provisions of Section 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
Section 310(b) of the Trust Indenture Act.
The initial Trustee which shall serve as the Property Trustee is The
Bank of New York, a New York banking corporation, whose address is as set forth
in Section 14.1(b).
(d) The initial Trustee which shall serve as the Delaware Trustee is
The Bank of New York (Delaware), a Delaware banking corporation, whose address
is as set forth in Section 14.1(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 12.2.
(f) No amendment may be made to this Section 5.1 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 Common Securities.
SECTION 5.2 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.2(b), Trustees may be appointed or removed without
cause at any time:
(i) until the issuance of the Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of the Securities by vote of the Holders of a
Majority in liquidation amount of the Common Securities voting as a
class.
(b) (i) The Trustee that acts as Property Trustee shall not be
removed in accordance with Section 5.2(a) until a Successor
Property Trustee possessing the qualifications to act as
Property Trustee under Section 5.1(c) 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
(ii) the Trustee that acts as Delaware Trustee shall not be
removed in accordance with Section 5.2(a) until a successor
Trustee possessing the qualifications to act as Delaware
Trustee under Section 5.1(a)(3) (a "Successor Delaware
Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor
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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 and shall have accepted 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) a Successor Property Trustee possessing the qualifications to
act as Property Trustee under Section 5.1(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
(B) if the Trust is excluded from the definition of an Investment
Company solely by reason of Rule 3a-7, until the assets of
the Trust have been completely liquidated and the proceeds
thereof distributed to the Holders of the Securities; and
(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 5.2
within 60 days after removal pursuant to Section 5.2(a) or after delivery to
the Sponsor and the Trust of a Resignation Request, the retiring 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.
SECTION 5.3 Vacancies Among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1 or if the number of Trustees is
increased pursuant to Section 5.1, 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 5.4 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
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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 5.5 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 matter; provided that a
Quorum is present, or without a meeting by the unanimous written consent of the
Regular Trustees.
SECTION 5.6 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 to filings referred to
in Section 3.13).
(b) The Regular Trustees shall have power to delegate from time to time
to such of their number or to officers of the Trust 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 6.1 Distributions.
Holders shall receive periodic distributions, redemption payments and
liquidation distributions in accordance with the applicable terms of the
relevant Holder's Securities ("Distributions"). Distributions shall be made to
the Holders of Preferred Securities and Common Securities in accordance with the
terms of the Securities as set forth in Exhibits B and C hereto. If and to the
extent that EQ makes a payment of interest (including Compounded Interest (as
defined in the Indenture)), premium and principal on the Debentures 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 in accordance with the terms of the Securities as set
forth in Exhibits B and C hereto.
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ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall issue on behalf of the Trust securities
in fully registered form representing undivided beneficial interests in the
assets of the Trust in accordance with Section 7.1(b) and for the consideration
specified in Section 3.3.
(b) The Regular Trustees shall issue on behalf of the Trust one class
of preferred securities representing undivided beneficial interests in the
assets of the Trust having such terms as are set forth in Exhibit B (the
"Preferred Securities") which terms are incorporated by reference in, and made a
part of, this Declaration as if specifically set forth herein, and one class of
common securities representing undivided beneficial interests in the assets of
the Trust having such terms as are set forth in Exhibit C (the "Common
Securities") which terms are incorporated by reference in, and made a part of,
this Declaration as if specifically set forth herein. The Trust shall have no
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common 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 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
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 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 for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
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(e) Upon issuance of the Securities as provided in this Declaration,
the Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable.
(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 the Securities as provided in this Declaration,
the Regular Trustees on behalf of the Trust shall return to EQ the $10
constituting initial trust assets as set forth in the Original Declaration.
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust.
The Trust shall dissolve when:
(i) all of the Securities shall have been called for redemption and the
amounts necessary for redemption thereof shall have been paid to the Holders
of Securities in accordance with the terms of the Securities; or
(ii) all of the Debentures shall have been distributed to the Holders of
Securities in exchange for all of the Securities in accordance with the
terms of the Securities; or
(iii) the Sponsor shall so elect, at any time
(iv) upon the expiration of the term of the Trust as set forth in
Section 3.17.
Upon dissolution, the Regular Trustees shall pay or provide for the payment of
all liabilities of the Trust in accordance with applicable law and a certificate
of cancellation shall be filed by the Trustees with the Secretary of State of
the State of Delaware. At such time the Trust shall terminate and this
Declaration, other than the provisions of Section 3.12 and Article X which shall
survive the termination of the Trust shall be of no further force or effect.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
(a) Securities may be transferred, in whole or in part, only 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.
(b) Subject to this Article IX, Preferred Securities shall be freely
transferable.
(c) Subject to this Article IX, EQ and any Related Party may transfer
Common Securities only to EQ or a Related Party; provided that any such transfer
shall be subject to the condition that the transferor shall have obtained (1)
either a ruling from the Internal Revenue Service or a written opinion addressed
to the Trust and delivered to the Trustees of nationally
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recognized independent tax counsel experienced in such matters to the effect
that such transfer will not cause the Trust to fail to be classified for
United States federal income tax purposes as a grantor trust and (2) a written
opinion addressed to the Trust and delivered to the Trustees of a nationally
recognized independent counsel experienced in such matters that such transfer
will not cause the Trust to be an Investment Company or controlled by an
Investment Company.
SECTION 9.2 Transfer of Certificates.
The Regular Trustees 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 Regular Trustees may require) in
respect of any tax or other government charges which may be imposed in relation
to it. Upon surrender for registration of transfer of any Certificate, the
Regular Trustees shall cause one or more new Certificates to be issued in the
name of the designated transferee or transferees and countersigned and
registered. Every Certificate surrendered for registration of transfer shall be
accompanied by a written instrument of transfer in form satisfactory to the
Regular Trustees 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 9.3 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 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, whether or not the Trustees shall have
actual or other notice thereof.
SECTION 9.4 Book Entry Interests.
Unless otherwise specified in the terms of the Preferred Securities,
the Preferred Securities Certificates, on original issuance (including Preferred
Securities, if any, issued on the Option Closing Date pursuant to the exercise
of the overallotment option set forth in the Underwriting Agreement), will be
issued in the form of one or more, fully registered, global Preferred Security
Certificates (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 will
receive a definitive Preferred Security Certificate representing such Preferred
Security Beneficial Owner's interests in such Global Certificates, except as
provided in Section 9.7. Unless and until definitive, fully registered Preferred
Security Certificates (the "Definitive Preferred Security Certificates") have
been issued to the Preferred Security Beneficial Owners pursuant to Section 9.7:
(i) the provisions of this Section 9.4 shall be in full force and
effect;
(ii) the Trust and the Trustees shall be entitled to deal with the
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Clearing Agency for all purposes of this Declaration (including the payment
of Distributions on the Global Certificates and receiving approvals, votes
or consents hereunder) as the Holder of the Preferred Securities and the
sole holder of the Global Certificates and, except as set forth herein or in
Rule 3a-7 with respect to the Property Trustee, shall have no obligation to
the Preferred Security Beneficial Owners;
(iii) to the extent that the provisions of this Section 9.4 conflict with
any other provisions of this Declaration, the provisions of this Section 9.4
shall control; and
(iv) the rights of the Preferred Security Beneficial Owners shall be
exercised 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 to
such Clearing Agency Participants.
SECTION 9.5 Notices to Holders of Certificates.
Whenever a notice or other communication to the Holders is required to
be given under this Declaration, unless and until Definitive Preferred Security
Certificates shall have been issued pursuant to Section 9.7, the relevant
Trustees shall give all such notices and communications, specified herein to be
given to Preferred Securities Holders, to the Clearing Agency and, with respect
to any Preferred Security Certificate registered in the name of a Clearing
Agency or the nominee of a Clearing Agency, the Trustees shall, except as set
forth herein or in Rule 3a-7 with respect to the Property Trustee, have no
notice obligations to the Preferred Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as securities
depository with respect to the Preferred Securities, the Regular Trustees may,
in their sole discretion, appoint a successor Clearing Agency with respect to
the Preferred Securities.
SECTION 9.7 Definitive Preferred Securities Certificates.
If (i) a Clearing Agency elects to discontinue its services as
securities depository with respect to the Preferred Securities and a successor
Clearing Agency is not appointed within 90 days after such discontinuance
pursuant to Section 9.6 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, then (x) Definitive Preferred Security
Certificates 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 by the Clearing Agency, accompanied by registration instructions,
the Regular Trustees shall cause definitive Preferred Security Certificates to
be delivered to Preferred Security Beneficial Owners in accordance with the
instructions of the Clearing Agency. Neither the 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 9.8 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
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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 9.8, 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 10.1 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 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 might properly be paid.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the Holders
of Securities, in their capacities as Holders, shall be entitled to the same
limitation of liability that is extended to stockholders of private corporations
for profit organized under the General Corporation Law of the State of Delaware.
SECTION 10.2 Indemnification.
(a) To the fullest extent permitted by applicable law, EQ, in its
capacity as issuer of the Debentures, 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.
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(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 EQ
in its capacity as issuer of the Debentures prior to the final disposition of
such claim, demand, action, suit or proceeding upon receipt by EQ 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 10.2(a).
ARTICLE XI
ACCOUNTING
SECTION 11.1 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 11.2 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. 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 Regular Trustees shall cause to be prepared and mailed 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 Regular Trustees shall endeavor to
deliver all such statements within 30 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 11.3 Banking.
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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 the Debentures held by the Property Trustee shall be made directly to
the Property Account and no other funds from the Trust shall be deposited in the
Property Account. 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 11.4 Withholding.
The Trust and the Trustees shall comply with all withholding
requirements under United States federal, state and 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 Trust shall file required forms with applicable
jurisdictions and, unless an exemption from withholding is properly established
by a Holder, 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, the Trust may reduce subsequent Distributions by the amount of
such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, upon request of the Sponsor or any Trustee
this Declaration may be amended by, and only by, a written instrument executed
by a majority of the 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
opinion of nationally recognized independent tax counsel experienced in such
matters to the effect that such amendment will not cause the Trust to fail to be
classified for United States federal income tax purposes as a grantor trust and
(B) a written 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 registered under the Investment
Company Act, (ii) at such time after the Trust has issued any Securities which
remain outstanding, any amendment which would adversely affect the rights,
privileges or preferences of any Holder of Securities may be effected only with
such additional requirements as may be set forth in the terms of such
Securities, (iii) Section 9.1(c) and this Section 12.1 shall not be amended
without the consent of all of the 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, (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.
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<PAGE>
(b) Notwithstanding Section 12.2(a)(ii), this Declaration may be
amended without the consent of the Holders of the Securities 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 Rule 3a-7 or Rule 3a-5 or any change in interpretation
or application of Rule 3a-7 or Rule 3a-5 by the Commission, which amendment does
not adversely affect the rights, preferences or privileges of the Holders.
SECTION 12.2 Meetings of the Holders of Securities; Action by Written Consent.
(a) Meetings of the Holders of Preferred Securities and/or Common
Securities may be called at any time by the Regular Trustees (or as provided in
the terms of the Securities) to consider and act on any matter on which Holders
of such class of Securities are entitled to act under the terms of this
Declaration, the terms of the Securities or the rules of any stock exchange on
which the Preferred Securities are listed or admitted for trading. The Regular
Trustees shall call a meeting of Holders of Preferred Securities or Common
Securities, if directed to do so by Holders of at least 10% in liquidation
amount of such class of Securities. Such direction shall be given by delivering
to the Regular Trustees one or more calls in a writing stating that the signing
Holders of Securities wish to call a meeting and indicating the general or
specific purpose for which the meeting is to be called. Any Holders of
Securities calling a meeting shall specify in writing the Certificates held by
the Holders of Securities 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 the
Securities, the following provision shall apply to meetings of Holders of
Securities:
(i) Notice of any such meeting shall be given by mail to all the
Holders of Securities having a right to vote thereat not less than 7 days
nor more than 60 days prior to the date of such meeting. Whenever a vote,
consent or approval of the Holders of Securities is permitted or required
under this Declaration or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading, such vote, consent
or approval may be given at a meeting of the Holders of Securities. Any
action that may be taken at a meeting of the Holders of Securities may be
taken without a meeting if a consent in writing setting forth the action so
taken is signed by Holders of Securities owning not less than the minimum
aggregate liquidation amount of Securities that would be necessary to
authorize or take such action at a meeting at which all Holders of
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 Securities entitled to vote who have not consented in writing.
The Regular Trustees may specify that any written ballot submitted to the
Holders of Securities for the purpose of taking any action without a meeting
shall be returned to the 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 the Security
executing it. Except as otherwise provided herein or in the terms of the
Securities, all matters relating to the giving, voting or validity of
proxies shall be governed by the General Corporation Law of the State of
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<PAGE>
Delaware relating to proxies, and judicial interpretations thereunder, as if
the Trust were a Delaware corporation and the Holders of the Securities were
stockholders of a Delaware corporation.
(iii) Each meeting of the Holders of the 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 the Preferred
Securities 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, including notice of the time, place or
purpose of any meeting at which any matter is to be voted on by any Holders
of 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 13.1 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 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.
(v) The Property Trustee satisfies the qualifications set forth in
Section 5.1(c).
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<PAGE>
(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
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 the qualifications set forth in Section
5.1(a)(3).
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 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 Holders of
the Securities):
EQ Capital Trust [ ]
c/o The Equitable Companies Incorporated
1290 Avenue of the Americas
New York, New York 10104
Attention: Treasurer
Facsimile No: (212) 707-1504
(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 Holders of the Securities):
The Bank of New York
101 Barclay Street, Floor 21-W
New York, New York 10286
Attention: Corp. Trust Administration
Facsimile No: (212) 815-5915
(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 Holders of the Securities):
The Bank of New York (Delaware)
c/o The Bank of New York
101 Barclay Street, Floor 21-W
New York, New York 10286
Attention: Corp. Trust Administration
Facsimile No: (212) 815-5915
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder
of the Common Securities may give notice to the Trust):
The Equitable Companies Incorporated
1290 Avenue of the Americas
New York, New York 10104
Attention: Corporate Secretary
Facsimile No: (212) 707-7998
(e) if given to any other Holder, at the address set forth on the books
and records of the Trust.
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<PAGE>
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 14.2 Undertaking for Costs.
All parties to this Declaration agree, and each Holder of any
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 14.2 shall not apply to
any suit instituted by the Property Trustee, to any suit instituted by any
Holder of Preferred Securities, or group of Holders of Preferred Securities,
holding more than 10% in aggregate liquidation amount of the outstanding
Preferred Securities, or to any suit instituted by any Holder of Preferred
Securities for the enforcement of the payment of the principal of (or premium,
if any) or interest on the Debentures, on or after the respective due dates
expressed in such Debentures.
SECTION 14.3 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
principles of conflict of laws.
SECTION 14.4 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 14.5 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 14.6 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 have the same force and effect as though all of the
signers had signed a single signature page.
SECTION 14.7 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
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<PAGE>
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 14.8 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 bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
The Equitable Companies Incorporated,
as Sponsor
By:
-------------------------------
Name:
Title:
- ----------------------------------
Stanley B. Tulin
as Trustee
- ----------------------------------
Kevin R. Byrne
as Trustee
- ----------------------------------
Robert A. Gender
as Trustee
The Bank of New York,
as Property Trustee
By:
---------------------------------
Name:
Title:
The Bank of New York (Delaware),
as Delaware Trustee
By:
-------------------------------
Name:
Title:
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<PAGE>
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this day of _____________,
199_, personally appeared [ ] (on behalf of The Equitable Companies
Incorporated) and _____________, _____________________ and __________________,
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 are 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:
-------------
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this day of _____________,
199_, personally appeared [_________________] of ___________________ 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 _________,
199_.
(SEAL)
--------------------------------
NOTARY PUBLIC, STATE OF NEW YORK
Print Name:
---------------------
Commission Expires:
-------------
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<PAGE>
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this day of _____________,
199_, personally appeared [__________________] of __________________________
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 _________,
199_.
(SEAL)
--------------------------------
NOTARY PUBLIC, STATE OF NEW YORK
Print Name:
---------------------
Commission Expires:
-------------
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<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
EQ CAPITAL TRUST [ ]
THIS Certificate of Trust of EQ Capital Trust [ ] (the "Trust"), dated
January 14, 1998, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. Code ss. 3801 et seq.).
1. Name. The name of the business trust being formed hereby is EQ
Capital Trust [ ].
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware is The
Bank of New York (Delaware), a Delaware banking corporation, White Clay Center,
Route 273, Newark, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be effective as of
its filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
The Bank of New York (Delaware),
as Delaware Trustee
By:
--------------------------------
Name:
Title:
The Bank of New York,
as Property Trustee
By:
--------------------------------
Name:
Title:
----------------------------------,
as Trustee
-----------------------------------
as Trustee
-----------------------------------,
as Trustee
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<PAGE>
EXHIBIT B
TERMS OF
PREFERRED SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust of EQ Capital Trust [ ] dated as of ____________, 199__ (as amended from
time to time, the "Declaration"), the designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities are set forth below (each capitalized term used but not defined
herein having the meaning set forth in the Declaration):
1. DESIGNATION AND NUMBER. Preferred Securities of the Trust with an
aggregate liquidation amount in the assets of the Trust of
___________________________________________ Dollars ($___________) (including up
to _______________________________________________ Dollars ($___________)
issuable upon exercise of the overallotment option set forth in the Underwriting
Agreement) and a liquidation amount in the assets of the Trust of $25 per
Preferred Security, are hereby designated as "____% Preferred Trust Securities".
The Preferred Security Certificates evidencing the 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
Preferred Securities are listed. In connection with the issuance and sale of the
Preferred Securities and the Common Securities, the Trust will purchase as trust
assets Debentures of EQ having an aggregate principal amount equal to the
aggregate liquidation amount of the Preferred Securities and Common Securities
so issued and bearing interest at an annual rate equal to the annual
Distribution rate on the Preferred Securities and Common Securities and having
payment and redemption provisions which correspond to the payment and redemption
provisions of the Preferred Securities and Common Securities.
2. DISTRIBUTIONS. (a) Distributions payable on each Preferred Security
will be fixed at a rate per annum of ____% (the "Coupon Rate") of the stated
liquidation amount of $25 per Preferred Security. Distributions in arrears for
more than one month will bear interest at the rate per annum of ____% thereof
(to the extent permitted by law), compounded _____________. The term
"Distributions" as used in these terms means such periodic cash distributions
and any such interest payable unless otherwise stated. A Distribution will be
made by the Property Trustee only to the extent that interest payments are made
in respect of the Debentures held by the Property Trustee. The amount of
Distributions payable for any period will be computed for any monthly
Distribution period on the basis of a 360-day year of twelve 30-day months, and
for any Distribution period shorter or longer than a 30-day month Distribution
period for which Distributions are computed, Distributions will be computed on
the basis of the actual number of days elapsed.
(b) Distributions on the Preferred Securities will be cumulative, will
accrue from ___________, 199__ and will be payable _________ in arrears, on
_________________ commencing on ________________, 199__, except as otherwise
described below, but only if and to the extent that interest payments are made
in respect of the Debentures held by the Property Trustee. So long as EQ shall
not be in default in the payment of interest on the Debentures, EQ has the right
under the Indenture for the Debentures to defer payments of interest by
extending the interest payment period from time to time on the Debentures for a
period not exceeding _________________ interest periods (each, an "Extension
Period") and, as a consequence, Distributions will continue to accrue with
interest thereon (to the extent permitted by applicable
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<PAGE>
law) at the rate of ____% per annum, compounded _______ during any such
Extension Period. Prior to the termination of any such Extension Period, EQ may
further extend such Extension Period; provided that such Extension Period
together with all such previous and further extensions thereof may not exceed
_________________ interest periods. Upon the termination of any Extension
Period and the payment of all amounts then due, EQ may commence a new Extension
Period, subject to the above requirements. Payments of accrued Distributions
will be payable to Holders of Preferred Securities as they appear on the books
and records of the Trust on the first record date after the end of the Extension
Period.
(c) Distributions on the Preferred 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
of the Trust on the relevant record dates. While the 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 Preferred Securities are no
longer in book-entry only form, the relevant record dates will be _________
(____) days prior to the relevant Distribution date, which record and payment
dates correspond to the record and interest payment dates on the Debentures.
Distributions payable on any Preferred Securities that are not punctually paid
on any Distribution payment date as a result of EQ having failed to make the
corresponding interest payment on the Debentures will forthwith cease to be
payable to the person in whose name such Preferred Security is registered on the
relevant record date, and such defaulted Distribution will instead be payable to
the person in whose name such Preferred Security is registered on the special
record date established by the Regular Trustees, which record date shall
correspond to the special record date or other specified date determined in
accordance with the Indenture; provided, however, that Distributions shall not
be considered payable on any Distribution payment date falling within an
Extension Period unless EQ has elected to make a full or partial payment of
interest accrued on the Debentures on such Distribution payment date. Subject to
any applicable laws and regulations and the provisions of the Declaration, each
payment in respect of the Preferred Securities will be made as described
paragraph 9 hereof. If any date on which Distributions are payable on the
Preferred 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 Preferred Securities and
the Common Securities will be paid Pro Rata to the Holders thereof entitled
thereto. If an Event of Default has occurred and is continuing, the Preferred
Securities shall have a priority over the Common Securities with respect to
Distributions.
(e) In the event that there is any money or other property held by or
for the Trust that is not accounted for under the Declaration, such money or
property shall be distributed Pro Rata among the Holders of the Preferred
Securities and Common Securities.
3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION. In the event of any
voluntary or involuntary dissolution, winding-up or termination of the Trust,
the Holders of the Preferred Securities and Common Securities at the date of the
dissolution, winding-up or termination, as the case may be, will be entitled to
receive Pro Rata solely out of the assets of the Trust available for
distribution to Holders of Preferred Securities and Common Securities after
satisfaction of liabilities to creditors, an amount equal to the aggregate of
the stated liquidation amount of $25 per Preferred Security and Common Security
plus accrued and unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution"), unless, in connection with such
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<PAGE>
dissolution, winding-up or termination, and after satisfaction of liabilities to
creditors, Debentures in an aggregate principal amount equal to the aggregate
stated liquidation amount of such Preferred Securities and Common Securities and
bearing accrued and unpaid interest in an amount equal to the accrued and unpaid
Distributions on, such Preferred Securities and Common Securities, shall be
distributed Pro Rata to the Holders of the Preferred Securities and Common
Securities in exchange for such Securities.
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 Preferred Securities and Common Securities shall be paid, subject
to the next paragraph, on a Pro Rata basis.
Holders of Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution Pro Rata with Holders of Preferred
Securities, except that if an Event of Default has occurred and is continuing,
the Preferred Securities shall have a priority over the Common Securities with
respect to such Liquidation Distribution.
4. REDEMPTION AND DISTRIBUTION OF DEBENTURES. The Preferred Securities
and Common Securities may only be redeemed if Debentures having an aggregate
principal amount equal to the aggregate liquidation amount of the Preferred
Securities and Common Securities are repaid, redeemed or distributed as set
forth below:
(a) Upon the repayment of the Debentures, in whole or in part, whether
at maturity or upon redemption at any time or from time to time, on or after
___________, the proceeds of such repayment will be promptly applied to redeem
Pro Rata Preferred Securities and Common Securities having an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures so
repaid or redeemed, upon not less than 30 nor more than 60 days' notice, at a
redemption price of $25 per Preferred and Common Security plus an amount equal
to accrued and unpaid Distributions thereon to the date of redemption, payable
in cash (the "Redemption Price"). The date of any such repayment or redemption
of Preferred Securities and Common Securities shall be established to coincide
with the repayment or redemption date of the Debentures.
(b) If fewer than all the outstanding Preferred Securities and Common
Securities are to be so redeemed, the Preferred Securities and the Common
Securities will be redeemed Pro Rata and the Preferred Securities to be redeemed
as described in paragraph 4(f)(ii) below. If a partial redemption would result
in the delisting of the Preferred Securities by any national securities exchange
or other organization on which the Preferred Securities are then listed, EQ
pursuant to the Indenture will only redeem Debentures in whole and, as a result,
the Trust may only redeem the Preferred Securities in whole.
(c) The Sponsor shall have the right at any time, upon notice to the
Regular Trustees, to elect to dissolve the Trust, and upon receipt of such
notice, the Regular Trustees shall dissolve the Trust and, after satisfaction of
creditors of the Trust, cause Debentures held by the Property Trustee having an
aggregate principal amount equal to the aggregate stated liquidation amount of,
and accrued and unpaid interest equal to accrued and unpaid Distributions on,
and having the same record date for payment as the Preferred Securities and
Common Securities, to be distributed to the Holders of the Preferred Securities
and Common Securities on a Pro Rata basis in liquidation of such Holders'
interests in the Trust, within 90 days following receipt of Sponsor's notice of
election.
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<PAGE>
If a Tax Event shall occur and be continuing, EQ in its capacity as
issuer of the Debentures ("the Debenture Issuer") shall have the right at any
time, upon not less than 30 nor more than 60 days' notice, to redeem the
debentures in whole or in part for cash within 90 days following the occurrence
of such Tax Event, and, following such redemption, Preferred Securities and
Common Securities with an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so redeemed shall be redeemed by the Trust at
the Redemption Price on a Pro Rata basis; provided, however, that, if at the
time there is available to the Debenture Issuer or the Trust the opportunity to
eliminate, within such 90 day period, the Tax Event by taking some ministerial
action, such as filing a form or making an election, or pursuing some other
similar reasonable measure, which has no adverse effect on the Trust, the
Sponsor or the Holders, the Sponsor or the Regular Trustees on behalf of the
Trust will pursue such measure in lieu of redemption.
"Tax Event" means that the Sponsor shall have obtained an opinion of
nationally recognized independent tax counsel experienced in such matters to the
effect that, as a result of (a) any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein, (b) any amendment to, or change in, an interpretation or application
of, any such laws or regulations by any legislative body, court, governmental
agency or regulatory authority (including the enactment of any legislation and
the publication of any judicial decision or regulatory determination), (c) any
interpretation or pronouncement that provides for a position with respect to
such laws or regulations that differs from the theretofore generally accepted
position or (d) any action taken by any governmental agency or regulatory
authority, which amendment or change is enacted, promulgated, issued or
announced or which interpretation or pronouncement is issued or announced or
which action is taken, in each case on or after the day before the date of
issuance of Preferred Securities under the Declaration, there is more than an
insubstantial risk (x) that the Trust is, or will be within 90 days of the date
thereof, subject to United States federal income tax with respect to income
received or accrued on the Debentures and that the Trust would be subject to
United States federal income tax if the Debentures were distributed to the
holders of the Securities in liquidation of such holders' interests in the Trust
pursuant to the exercise by the Sponsor of its right to dissolve the Trust, (y)
that interest payable by EQ on the Debentures is not, or within 90 days of the
date thereof, will not be, deductible, in whole or in part, for United States
federal income tax purposes, even if the Debentures were distributed to the
holders of the Securities in liquidation of such holders' interests in the Trust
pursuant to the exercise by the Sponsor of its right to dissolve the Trust or
(z) that the Trust is, or will be within 90 days of the date thereof, subject to
more than a de minimis amount of other taxes, duties or other governmental
charges and that the Trust would be subject to more than a de minimis amount of
taxes, duties or other governmental charges if the Debentures were distributed
to the holders of the Securities in liquidation of such holders' interests in
the Trust pursuant to the exercise by the Sponsor of its right to dissolve the
Trust.
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<PAGE>
On the date fixed for any distribution of Debentures, upon dissolution
of the Trust, (i) the Preferred Securities will no longer be deemed to be
outstanding and (ii) certificates representing Preferred Securities will be
deemed to represent beneficial interests in the Debentures having an aggregate
principal amount equal to the stated liquidation amount of, and bearing accrued
and unpaid interest equal to accrued and unpaid Distributions on, such Preferred
Securities until such certificates are presented to EQ or its agent for transfer
or reissuance.
(d) The Trust may not redeem fewer than all the outstanding Preferred
Securities unless all accrued and unpaid Distributions have been paid on all
Preferred Securities for all monthly Distribution periods terminating on or
prior to the date of redemption.
(e) If Debentures are distributed to Holders of the Preferred
Securities, EQ, pursuant to the terms of the Indenture, will use its best
efforts to have the Debentures listed on the New York Stock Exchange or on such
other exchange as the Preferred Securities were listed immediately prior to the
distribution of the Debentures.
(f) (i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Preferred Securities and Common Securities (a
"Redemption/Distribution Notice") will be given by the Regular Trustees on
behalf of the Trust by mail to each Holder of Preferred Securities and Common
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 Preferred Securities and Common
Securities. Each Redemption/ Distribution Notice shall be addressed to the
Holders of Preferred Securities and Common 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 redemption or exchange
proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding Preferred
Securities are to be redeemed, the Preferred Securities to be redeemed will be
redeemed Pro Rata from each Holder of Preferred Securities, it being understood
that, in respect of Preferred Securities registered in the name of and held of
record by DTC (or successor Clearing Agency) or any other nominee, the 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) Subject to paragraph 9 hereof, if the Trust gives a Redemption/
Distribution Notice in respect of a redemption of Preferred Securities as
provided in this paragraph 4 (which notice will be irrevocable) then (A) while
the Preferred Securities are in book-entry only form, with respect to the
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<PAGE>
Preferred Securities, by 12:00 noon, New York City time, on the redemption date,
provided that EQ has paid the Property Trustee, in immediately available funds,
a sufficient amount of cash in connection with the related redemption or
maturity of the Debentures, the Property Trustee will deposit irrevocably with
DTC (or successor Clearing Agency) funds sufficient to pay the applicable
Redemption Price with respect to the Preferred Securities and will give DTC (or
successor Clearing Agency) irrevocable instructions and authority to pay the
Redemption Price to the Holders of the Preferred Securities and (B) if the
Preferred Securities are issued in definitive form, with respect to the
Preferred Securities and provided that EQ has paid the Property Trustee, in
immediately available funds, a sufficient amount of cash in connection with the
related redemption or maturity of the Debentures, the Property Trustee will pay
the relevant Redemption Price to the Holders of such Preferred 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 Preferred Securities called for redemption, such
Preferred Securities will no longer be deemed to be outstanding and all rights
of Holders of such Preferred Securities so called for redemption will cease,
except the right of the Holders of such Preferred 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 Preferred Securities which have been so called for
redemption. If any date fixed for redemption of Preferred 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 Preferred Securities is improperly withheld or refused and not paid either by
the Property Trustee or by EQ pursuant to the Preferred Securities Guarantee,
Distributions on such Preferred Securities will continue to accrue, 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 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 Preferred Securities.
(v) Upon the date of dissolution of the Trust and distribution of
Debentures as a result of the occurrence of a Special Event, Preferred Security
Certificates shall be deemed to represent beneficial interests in the Debentures
so distributed, and the Preferred Securities will no longer be deemed
outstanding and may be canceled by the Regular Trustees. The Debentures so
distributed shall have an aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Securities so distributed.
(vi) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), EQ or any of its
subsidiaries may at any time and from time to time purchase outstanding
Preferred Securities by tender, in the open market or by private agreement.
5. VOTING RIGHTS. (a) Except as provided under paragraph 5(b) below
and as otherwise required by law and the Declaration, the Holders of the
Preferred Securities will have no voting rights.
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<PAGE>
(b) If any proposed amendment to the Declaration provides for, or the
Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than in connection
with the distribution of Debentures held by the Property Trustee, upon the
occurrence of a Special Event or in connection with the redemption of Preferred
Securities as a consequence of a redemption of Debentures, then the Holders of
outstanding Securities will be entitled to vote on such amendment or proposal as
a class and such amendment or proposal shall not be effective except with the
approval of the Holders of Securities representing 66-2/3% in liquidation amount
of such Securities; provided, however, that (A) if any amendment or proposal
referred to in clause (i) above would adversely affect only the Preferred
Securities or the Common Securities, then only the affected class will be
entitled to vote on such amendment or proposal and such amendment or proposal
shall not be effective except with the approval of 66-2/3% in
liquidation amount of such class of Securities and (B) amendments to the
Declaration shall be subject to such further requirements as are set forth in
Sections 12.1 and 12.2 of the Declaration.
In the event the consent of the Property Trustee, as the holder of the
Debentures, is required under the Indenture with respect to any amendment,
modification or termination of the Indenture or the Debentures, the Property
Trustee shall request the written direction of the Holders of the Securities
with respect to such amendment, modification or termination. The Property
Trustee shall vote with respect to such amendment, modification or termination
as directed by a Majority in liquidation amount of the Securities voting
together as a single class; provided that where such amendment, modification or
termination of the Indenture requires the consent or vote of (1) holders of
Debentures representing a specified percentage greater than a majority in
principal amount of the Debentures or (2) each holder of Debentures, the
Property Trustee may only vote with respect to that amendment, modification or
termination as directed by, in the case of clause (1) above, the vote of Holders
of Securities representing such specified percentage of the aggregate
liquidation amount of the Securities, or, in the case of clause (2) above, each
Holder of Securities; and provided, further, that the Property Trustee shall not
take any action in accordance with the directions of the Holders of Securities
unless the Property Trustee shall have received, at the expense of the Sponsor,
a written 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 fail to be classified for United States federal income tax purposes as a
grantor trust.
Subject to Section 2.6 of the Declaration, and the provisions of this
and the next succeeding paragraph, the Holders of a Majority in liquidation
amount of the Preferred Securities, voting separately as a class shall have the
right to (A) on behalf of all Holders of Preferred Securities, waive any past
default that is waivable under the Declaration (subject to, and in accordance
with the Declaration) and (B) 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 under the Declaration,
including the right to direct the Property Trustee, as the holder of the
Debentures, to (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or exercising any
trust or power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past default that is waivable under Section 5.7 of
the Indenture, or (iii) exercise any right to rescind or annul a declaration
that the principal of all the Debentures shall be due and payable; provided that
where the taking of any action under the Indenture requires the consent or vote
of (1) holders of Debentures representing a specified percentage greater than a
majority in principal amount
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<PAGE>
of the Debentures or (2) each holder of Debentures, the Property Trustee may
only take such action if directed by, in the case of clause (1) above, the vote
of Holders of Preferred Securities representing such specified percentage of the
aggregate liquidation amount of the Preferred Securities, or, in the case of
clause (2) above, each Holder of Preferred Securities. The Property Trustee
shall not revoke any action previously authorized or approved by a vote of the
Holders of the Preferred Securities. Other than with respect to directing the
time, method and place of conducting any proceeding for any remedy available to
the Property Trustee or the Debenture Trustee as set forth above, the Property
Trustee shall not take any of the foregoing actions at the direction of the
Holders of Preferred Securities unless the Property Trustee shall have received,
at the expense of the Sponsor, a written 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 fail to be classified for United States
federal income tax purposes as a grantor trust. If the Property Trustee fails to
enforce its rights under the Declaration (including, without limitation, its
rights, powers and privileges as a holder of the Debentures under the
Indenture), any Holder of Preferred Securities may, to the extent permitted by
law, after a period of 30 days has elapsed from such Holder's written request to
the Property Trustee to enforce such rights, institute a legal proceeding
directly against EQ to enforce the Property Trustee's rights under the
Declaration, without first instituting a legal proceeding against the Property
Trustee or any other Person.
A waiver of an Indenture Event of Default by the Property Trustee at
the direction of the Holders of the Preferred Securities will constitute a
waiver of the corresponding Event of Default under the Declaration in respect of
the Securities.
Any required approval or direction of Holders of Preferred Securities
may be given at a separate meeting of Holders of Preferred Securities convened
for such purpose, at a meeting of all of the Holders of Securities of the Trust
or pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred 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 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 Preferred Securities will be
required for the Trust to redeem and cancel Preferred Securities in accordance
with the Declaration.
Notwithstanding that Holders of Preferred Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Preferred Securities at such time that are owned by EQ or by any entity directly
or indirectly controlling or controlled by or under direct or indirect common
control with EQ shall not be entitled to vote or consent and shall, for
purposes of such vote or consent, be treated as if they were not outstanding,
except to the extent EQ or such other entity holds Preferred Securities on
behalf of a third party (including in any Separate Account).
Except as provided in this paragraph 5, Holders of the 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 Common Securities.
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<PAGE>
6. PRO RATA TREATMENT. A reference in these terms of the Preferred
Securities to any payment, distribution or treatment as being "Pro Rata" shall
mean pro rata to each Holder of Securities according to the aggregate
liquidation amount of the Securities held by the relevant Holder in relation to
the aggregate liquidation amount of all 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 Preferred Securities pro rata according to the aggregate
liquidation amount of Preferred Securities held by the relevant Holder relative
to the aggregate liquidation amount of all Preferred Securities outstanding, and
only after satisfaction of all amounts owed to the Holders of the Preferred
Securities, to each Holder of Common Securities pro rata according to the
aggregate liquidation amount of Common Securities held by the relevant Holder
relative to the aggregate liquidation amount of all Common Securities
outstanding.
7. RANKING. The Preferred Securities rank pari passu and payment
thereon will be made Pro Rata with the Common Securities except that where an
Event of Default occurs and is continuing, the rights of Holders of Preferred
Securities to payment in respect of Distributions and payments upon liquidation,
redemption or otherwise rank in priority to the rights of Holders of the Common
Securities.
8. MERGERS, CONSOLIDATIONS OR AMALGAMATIONS. The Trust may not
consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets to, any corporation or other body.
9. TRANSFER, EXCHANGE, METHOD OF PAYMENTS. Payment of Distributions and
payments on redemption of the Preferred Securities will be payable, the transfer
of the Preferred Securities will be registrable, and Preferred Securities will
be exchangeable for Preferred Securities of other denominations of a like
aggregate liquidation 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 by
check mailed to the address of the persons entitled thereto and that the payment
on redemption of any Preferred Security will be made only upon surrender of such
Preferred Security to the Property Trustee.
10. ACCEPTANCE OF INDENTURE AND PREFERRED GUARANTEE. Each Holder of
Preferred Securities, by the acceptance thereof, agrees to the provisions of (i)
the Preferred Guarantee, including the subordination provisions therein and (ii)
the Indenture and the Debentures, including the subordination provisions of the
Indenture.
11. NO PREEMPTIVE RIGHTS. The Holders of Preferred Securities shall
have no preemptive rights to subscribe to any additional Preferred Securities or
Common Securities.
12. MISCELLANEOUS. These terms shall constitute a part of the
Declaration. The Trust will provide a copy of the Declaration and the Indenture
to a Holder without charge on written request to the Trust at its principal
place of business.
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<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 DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK) 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 THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., 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.
--------------
$
---------------------
Certificate Evidencing Preferred Securities
of
EQ Capital Trust [ ]
____% Preferred Trust Securities
(liquidation amount $25 per Preferred Security)
EQ Capital Trust [ ], 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 the assets of the Trust
designated the ____% Preferred Trust Securities (liquidation amount $25 per
Preferred Security) (the "Preferred Securities"). The Preferred Securities are
transferable 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 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
___________, 199_, as the same may be amended from time to time (the
"Declaration") including the designation of the terms of Preferred Securities as
set forth in Exhibit B thereto. The Preferred Securities and the Common
Securities issued by the Trust pursuant to the Declaration represent undivided
beneficial interests in the assets of the Trust, including the Debentures (as
defined in the Declaration) issued by The Equitable Companies Incorporated, a
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<PAGE>
Delaware corporation ("EQ"), to the Trust pursuant to the Indenture referred to
in the Declaration. The Holder is entitled to the benefits of the Guarantee
Agreement of EQ dated as of __________, 199_ (the "Guarantee") to the extent
provided therein. The Trust will furnish a copy of the Declaration, the
Guarantee and the Indenture 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 (i) agreed to the terms of the Indenture and the Debentures,
including that the Debentures are subordinate and junior in right of payment to
all Senior Debt (as defined in the Indenture) as and to the extent provided in
the Indenture and (ii) agreed to the terms of the Guarantee, including that the
Guarantee is pari passu with the Debentures and any other securities that are
pari passu by their terms with the Debentures and is subordinate and junior in
right of payment to all other liabilities of EQ, except those made subordinate
by their terms, and senior to all capital stock now or hereafter issued by EQ
and to any guarantee now or hereafter entered into by EQ in respect of any of
its capital stock.
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_.
EQ CAPITAL TRUST [ ]
By: , as Trustee
-------------------------
Name:
Title: Trustee
By: , as Trustee
-------------------------
Name:
Title: Trustee
Dated:
Countersigned and Registered:
- ------------------------------------
- ------------------------------------
Transfer Agent and Registrar
By:
-------------------------------
Authorized Signature
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<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:
------------------------
Signature Guarantee:
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the [Registrar], which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the [Registrar]
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
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.
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<PAGE>
EXHIBIT C
TERMS OF
COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust of EQ Capital Trust [ ] dated as of ____________, 199__ (as amended from
time to time, the "Declaration"), the designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth below (each capitalized term used but not defined
herein having the meaning set forth in the Declaration):
1. DESIGNATION AND NUMBER. Common Securities of the Trust with an
aggregate liquidation amount in the assets of the Trust of
__________________________________________ Dollars ($____________) and a
liquidation amount in the assets of the Trust of $25 per Common Security, are
hereby designated as "____% Common Trust Securities". The Common Security
Certificates evidencing the Common 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.
The Common Securities are to be issued and sold to The Equitable Companies
Incorporated ("EQ") in consideration of $_____________ in cash. In connection
with the issuance and sale of the Preferred Securities and the Common
Securities, the Trust will purchase as trust assets Debentures of EQ having an
aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Securities and Common Securities so issued, and bearing interest at an
annual rate equal to the annual Distribution rate on the Preferred Securities
and Common Securities and having payment and redemption provisions which
correspond to the payment and redemption provisions of the Preferred Securities
and Common Securities.
2. DISTRIBUTIONS. (a) Distributions payable on each Common Security
will be fixed at a rate per annum of ____% (the "Coupon Rate") of the stated
liquidation amount of $25 per Common Security. Distributions in arrears for more
than one month will bear interest at the rate per annum of ____% thereof (to the
extent permitted by applicable law), compounded ____________. The term
"Distributions" as used in these terms means such periodic cash distributions
and any such interest payable unless otherwise stated. A Distribution will be
made by the Property Trustee only to the extent that interest payments are made
in respect of the Debentures held by the Property Trustee. The amount of
Distributions payable for any period will be computed for any monthly
Distribution period on the basis of a 360-day year of twelve 30-day months, and
for any Distribution period shorter than a 30-day month Distribution period for
which Distributions are computed, Distributions will be computed on the basis of
the actual number of days elapsed.
(b) Distributions on the Common Securities will be cumulative, will
accrue from _________, 199__ and will be payable _______ in arrears, on
__________________ commencing on __________, 199__, except as otherwise
described below, but only if and to the extent that interest payments are made
in respect of the Debentures held by the Property Trustee. So long as EQ shall
not be in default in the payment of interest on the Debentures, EQ has the right
under the Indenture for the Debentures to defer payments of interest by
extending the interest payment period from time to time on the Debentures for a
period not exceeding ____________________ interest periods (each, an "Extension
Period") and, as a consequence, ________ Distributions will continue to accrue
with interest thereon (to the extent permitted by applicable law) at the rate of
____% per annum, compounded _______ during any such Extension Period. Prior to
the termination of any such Extension Period, EQ may further extend such
Extension Period; provided that such Extension Period together with all such
previous and further extensions thereof may not exceed __________________
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<PAGE>
_____ interest periods. Upon the termination of any Extension Period and the
payment of all amounts then due, EQ may commence a new Extension Period, subject
to the above requirements. Payments of accrued Distributions will be payable to
Holders of Common Securities as they appear on the books and records of the
Trust on the first record date after the end of the Extension Period.
(c) Distributions on the Common 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
of the Trust on the relevant record dates which will be one business day prior
to the relevant Distribution date unless the Preferred Securities are no longer
in book-entry only form in which event the relevant record dates will be
_________ (___) days prior to the relevant Distribution date, which record and
payment dates correspond to the record and interest payment dates on the
Debentures. Distributions payable on any Common Securities that are not
punctually paid on any Distribution date as a result of EQ having failed to make
the corresponding interest payment on the Debentures will forthwith cease to be
payable to the person in whose name such Common Security is registered on the
relevant record date, and such defaulted Distribution will instead be payable to
the person in whose name such Common Security is registered on the special
record date established by the Regular Trustees, which record date shall
correspond to the special record date or other specified date determined in
accordance with the Indenture; provided, however, that Distributions shall not
be considered payable on any Distribution payment date falling within an
Extension Period unless EQ has elected to make a full or partial payment of
interest accrued on the Debentures on such Distribution payment date. Subject to
any applicable laws and regulations and the provisions of the Declaration, each
payment in respect of the Common Securities will be made as described in
paragraph 9 hereof. If any date on which Distributions are payable on the Common
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 Common Securities and
the Preferred Securities will be paid Pro Rata to the Holders thereof entitled
thereto. If an Event of Default has occurred and is continuing, the Preferred
Securities shall have a priority over the Common Securities with respect to
Distributions.
(e) In the event that there is any money or other property held by or
for the Trust that is not accounted for under the Declaration, such money or
property shall be distributed Pro Rata among the Holders of the Preferred
Securities and Common Securities.
3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION. In the event of any
voluntary or involuntary dissolution, winding-up or termination of the Trust,
the Holders of the Preferred Securities and Common Securities at the date of the
dissolution, winding-up or termination, as the case may be, will be entitled to
receive Pro Rata solely out of the assets of the Trust available for
distribution to Holders of Preferred Securities and Common Securities, after
satisfaction of liabilities to creditors, an amount equal to the aggregate of
the stated liquidation amount of $25 per Preferred Security and Common Security
plus accrued and unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution"), unless, in connection with such
dissolution, winding-up or termination, and after satisfaction of liabilities to
creditors, Debentures in an aggregate principal amount equal to the aggregate
stated liquidation amount of such Preferred Securities and Common Securities
bearing accrued and unpaid interest in an amount equal to the accrued and unpaid
Distributions on, such Preferred Securities and Common Securities, shall be
distributed Pro Rata to the Holders of the Preferred Securities and Common
Securities in exchange for such Securities.
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<PAGE>
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 Preferred Securities and Common Securities shall be paid, subject
to the next paragraph, on a Pro Rata basis.
Holders of Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution Pro Rata with Holders of Preferred
Securities, except that if an Event of Default has occurred and is continuing,
the Preferred Securities shall have a priority over the Common Securities with
respect to such Liquidation Distribution.
4. REDEMPTION AND DISTRIBUTION OF DEBENTURES. The Preferred Securities
and Common Securities may only be redeemed if Debentures having an aggregate
principal amount equal to the aggregate liquidation amount of the Preferred
Securities and Common Securities are repaid, redeemed or distributed as set
forth below:
(a) Upon the repayment of the Debentures, in whole or in part, whether
at maturity or upon redemption at any time or from time to time on or after
___________, the proceeds of such repayment will be promptly applied to redeem
Pro Rata Preferred Securities and Common Securities having an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures so
repaid or redeemed, upon not less than 30 nor more than 60 days' notice, at a
redemption price of $25 per Preferred and Common Security plus an amount equal
to accrued and unpaid Distributions thereon to the date of redemption, payable
in cash (the "Redemption Price"). The date of any such repayment or redemption
of Preferred Securities and Common Securities shall be established to coincide
with the repayment or redemption date of the Debentures.
(b) If fewer than all the outstanding Preferred Securities and Common
Securities are to be so redeemed, the Preferred Securities and the Common
Securities will be redeemed Pro Rata and the Common Securities to be redeemed
will be redeemed as described in paragraph 4(e)(ii) below. If a partial
redemption would result in the delisting of the Preferred Securities by any
national securities exchange or other organization on which the Preferred
Securities are then listed, EQ pursuant to the Indenture will only redeem
Debentures in whole and, as a result, the Trust may only redeem the Common
Securities in whole.
(c) The Sponsor shall have the right at any time, upon notice to the
Regular Trustees, to elect to dissolve the Trust, and upon receipt of such
notice, the Regular Trustees shall dissolve the Trust and, after satisfaction of
creditors of the Trust, cause Debentures held by the Property Trustee having an
aggregate principal amount equal to the aggregate stated liquidation amount of,
and accrued and unpaid interest equal to accrued and unpaid Distributions on,
and having the same record date for payment as the Preferred Securities and
Common Securities, to be distributed to the Holders of the Preferred Securities
and Common Securities on a Pro Rata basis in liquidation of such Holders'
interests in the Trust, within 90 days following receipt of Sponsor's notice of
election.
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<PAGE>
If a Tax Event shall occur and be continuing, EQ, in its capacity as
issuer of the Debentures (the "Debenture Issuer"), shall have the right at any
time, upon not less than 30 nor more than 60 days' notice, to redeem the
Debentures in whole or in part for cash within 90 days following the occurrence
of such Tax Event, and, following such redemption, Preferred Securities and
Common Securities with an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so redeemed shall be redeemed by the Trust at
the Redemption Price on a Pro Rata basis; provided, however, that, if at the
time there is available to the Debenture Issuer or the Trust the opportunity to
eliminate, within such 90 day period, the Tax Event by taking some ministerial
action, such as filing a form or making an election, or pursuing some other
reasonable measure, which has no adverse effect on the Trust, the Sponsor or the
Holders, the Sponsor or the Regular Trustees on behalf of the Trust will pursue
such measure in lieu of redemption.
"Tax Event" means that the Sponsor shall have obtained an opinion of
nationally recognized independent tax counsel experienced in such matters to the
effect that, as a result of (a) any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein, (b) any amendment to or change in, an interpretation or application of,
any such laws or regulations by any legislative body, court, governmental agency
or regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination), (c) any
interpretation or pronouncement that provides for a position with respect to
such laws or regulations that differs from the theretofore generally accepted
position or (d) any action taken by any governmental agency or regulatory
authority, which amendment or change is enacted, promulgated, issued or
announced or which interpretation or pronouncement is issued or announced or
which action is taken, in each case on or after the day before the date of
issuance of Preferred Securities under the Declaration, there is more than an
insubstantial risk (x) that the Trust is, or will be within 90 days of the date
thereof, subject to United States federal income tax with respect to income
received or accrued on the Debentures and that the Trust would be subject to
United States federal income tax if the Debentures were distributed to the
holders of the Securities in liquidation of such holders' interests in the Trust
pursuant to the exercise by the Sponsor of its right to dissolve the Trust, (y)
that interest payable by the Sponsor on the Debentures is not, or within 90 days
of the date thereof, will not be, deductible, in whole or in part, for United
States federal income tax purposes, even if the Debentures were distributed to
the holders of the Securities in liquidation of such holders' interests in the
Trust pursuant to the exercise by the Sponsor of its right to dissolve the Trust
or (z) that the Trust is, or will be within 90 days of the date thereof, subject
to more than a de minimis amount of other taxes, duties or other governmental
charges and that the Trust would be subject to more than a de minimis amount of
taxes, duties or other governmental charges if the Debentures were distributed
to the holders of the Securities in liquidation of such holders' interests in
the Trust pursuant to the exercise by the Sponsor of its right to dissolve the
Trust.
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<PAGE>
On the date fixed for any distribution of Debentures, upon dissolution
of the Trust, (i) the Common Securities will no longer be deemed to be
outstanding and (ii) any certificates representing Common Securities will be
deemed to represent beneficial interests in the Debentures having an aggregate
principal amount equal to the stated liquidation amount of, and bearing accrued
and unpaid interest equal to accrued and unpaid Distributions on, such Common
Securities until such certificates are presented to EQ or its agent for transfer
or reissuance.
(d) The Trust may not redeem fewer than all the outstanding Common
Securities unless all accrued and unpaid Distributions have been paid on all
Common Securities for all monthly Distribution periods terminating on or prior
to the date of redemption.
(e)(i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Preferred Securities and Common Securities (a
"Redemption/Distribution Notice") will be given by the Regular Trustees on
behalf of the Trust by mail to each Holder of Preferred Securities and Common
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 (e)(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 Preferred Securities and Common
Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of Preferred Securities and Common 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 redemption or exchange
proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding Common Securities
are to be redeemed, the Common Securities to be redeemed will be redeemed Pro
Rata from each Holder of Common Securities (subject to adjustment to eliminate
fractional Common Securities).
(iii) If the Trust gives a Redemption/ Distribution Notice in respect of
a redemption of Common Securities as provided in this paragraph 4 (which notice
will be irrevocable) then immediately prior to the close of business on the
redemption date, provided that EQ has paid to the Property Trustee in
immediately available funds a sufficient amount of cash in connection with the
related redemption or maturity of the Debentures, Distributions will cease to
accrue on the Common Securities called for redemption, such Common Securities
will no longer be deemed to be outstanding and all rights of Holders of such
Common Securities so called for redemption will cease, except the right of the
Holders of such Common 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 Common
Securities which have been so called for redemption. If any date fixed for
redemption of Common 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 Common Securities
- 5 -
<PAGE>
is improperly withheld or refused and not paid by the Property Trustee,
Distributions on such Common Securities will continue to accrue, 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 to the Holders of the Common Securities.
(v) Upon the date of dissolution of the Trust and distribution of
Debentures as a result of the occurrence of a Special Event, Common Security
Certificates shall be deemed to represent beneficial interests in the Debentures
so distributed, and the Common Securities will no longer be deemed outstanding
and may be canceled by the Regular Trustees. The Debentures so distributed shall
have an aggregate principal amount equal to the aggregate liquidation amount of
the Common Securities so distributed.
5. VOTING RIGHTS. (a) Except as provided under paragraph 5(b) below
and as otherwise required by law and the Declaration, the Holders of the Common
Securities will have no voting rights.
(b) Holders of Common Securities have the sole right under the
Declaration to increase or decrease the number of Trustees, and to appoint,
remove or replace a Trustee, any such increase, decrease, appointment, removal
or replacement to be approved by Holders of Common Securities representing a
Majority in liquidation amount of the Common Securities.
If any proposed amendment to the Declaration provides for, or the
Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than in connection
with the distribution of Debentures held by the Property Trustee, upon the
occurrence of a Special Event or in connection with the redemption of Common
Securities as a consequence of a redemption of Debentures, then the Holders of
outstanding Securities will be entitled to vote on such amendment or proposal as
a class and such amendment or proposal shall not be effective except with the
approval of the Holders of Securities representing 66-2/3% in liquidation amount
of such Securities; provided, however, that (A) if any amendment or proposal
referred to in clause (i) above would adversely affect only the Preferred
Securities or the Common Securities, then only the affected class will be
entitled to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of 66-2/3% in
liquidation amount of such class of Securities, (B) the rights of Holders of
Common Securities under Article V of the Declaration 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, and (C) amendments to
the Declaration shall be subject to such further requirements as are set forth
in Sections 12.1 and 12.2 of the Declaration.
In the event the consent of the Property Trustee as the holder of the
Debentures, is required under the Indenture with respect to any amendment,
modification or termination of the Indenture or the Debentures, the Property
Trustee shall request the written direction of the Holders of the Securities
with respect to such amendment, modification or termination. The Property
Trustee shall vote with respect to such amendment, modification or termination
as directed by a Majority in liquidation amount of the Securities voting
together as a single class; provided that where such amendment, modification or
termination of the Indenture requires the consent or vote of (1) holders of
Debentures representing a specified percentage greater than a majority in
principal amount of the Debentures or (2) each holder of Debentures, the
Property Trustee may only vote with respect to that amendment, modification or
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<PAGE>
termination as directed by, in the case of clause (1) above, the vote of Holders
of Securities representing such specified percentage of the aggregate
liquidation amount of the Securities, or, in the case of clause (2) above, each
Holder of Securities; and provided, further, that the Property Trustee shall not
take any action in accordance with the directions of the Holders of the
Securities unless the Property Trustee shall have received, at the expense of
the Sponsor, a written opinion of nationally recognized independent tax counsel
recognized as an expert in such matters to the effect that such action
will not cause the Trust to fail to be classified for United States federal
income tax purposes as a grantor trust.
Subject to Section 2.6 of the Declaration, and the provisions of this
and the next succeeding paragraph, the Holders of a Majority in liquidation
amount of the Common Securities, voting separately as a class shall have the
right to (A) on behalf of all Holders of Common Securities, waive any past
default that is waivable under the Declaration (subject to, and in accordance
with the Declaration) and (B) 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 under the Declaration,
including the right to direct the Property Trustee, as holder of the Debentures,
to (i) direct the time, method and place of conducting any proceeding for any
remedy available to the Debenture Trustee, or exercising any trust or power
conferred on the Debenture Trustee with respect to the Debentures, (ii) waive
any past default and its consequences that is waivable under Section 5.7 of the
Indenture, or (iii) exercise any right to rescind or annul a declaration that
the principal of all the Debentures shall be due and payable; provided that
where the taking of any action under the Indenture requires the consent or vote
of (1) holders of Debentures representing a specified percentage greater than a
majority in principal amount of the Debentures or (e) each holder of Debentures,
the Property Trustee may only take such action if directed by, in the case of
clause (1) above, the vote of Holders of Common Securities representing such
specified percentage of the aggregate liquidation amount of the Common
Securities, or, in the case of clause (2) above, each Holder of Common
Securities. Pursuant to this paragraph, the Property Trustee shall not revoke,
or take any action inconsistent with, any action previously authorized or
approved by a vote of the Holders of the Preferred Securities, and shall not
take any action in accordance with the direction of the Holders of the Common
Securities under this paragraph if the action is prejudicial to the Holders of
Preferred Securities. Other than with respect to directing the time, method and
place of conducting any proceeding for any remedy available to the Property
Trustee or the Debenture Trustee as set forth above, the Property Trustee shall
not take any of the foregoing actions at the direction of the Holders of Common
Securities unless the Properties Trustee shall have received, at the expense of
the Sponsor, a written 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 fail to be classified for United States federal income tax
purposes as a grantor trust.
Notwithstanding any other provision of these terms, each Holder of
Common Securities will be deemed to have waived any Event of Default with
respect to the Common Securities and its consequences until all Events of
Default with respect to the Preferred Securities have been cured, waived by the
Holders of Preferred Securities as provided in the Declaration or otherwise
eliminated, and until all Events of Default with respect to the Preferred
Securities have been so cured, waived by the Holders of Preferred Securities or
otherwise eliminated, the Property Trustee will be deemed to be acting solely on
behalf of the Holders of Preferred Securities and only the Holders of the
Preferred Securities will have the right to direct the Property Trustee in
accordance with the terms of the Declaration or of the Securities. In the event
that any Event of Default with respect to the
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<PAGE>
Preferred Securities is waived by the Holders of Preferred Securities as
provided in the Declaration, the Holders of Common Securities agree that such
waiver shall also constitute the waiver of such Event of Default with respect to
the Common Securities for all purposes under the Declaration without any further
act, vote or consent of the Holders of the Common Securities.
A waiver of an Indenture Event of Default by the Property Trustee at
the direction of the Holders of the Preferred Securities will constitute a
waiver of the corresponding Event of Default under the Declaration in respect of
the Securities.
Any required approval of Holders of Common Securities may be given at a
separate meeting of Holders of Common Securities convened for such purpose, at a
meeting of all of the Holders of Securities of the Trust or pursuant to written
consent. The Regular Trustees will cause a notice of any meeting at which
Holders of Common 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 Common 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 Common Securities will be required
for the Trust to redeem and cancel Common Securities in accordance with the
Declaration.
6. PRO RATA TREATMENT. A reference in these terms of the Common
Securities to any payment, distribution or treatment as being "Pro Rata" shall
mean pro rata to each Holder of Securities according to the aggregate
liquidation amount of the Securities held by the relevant Holder in relation to
the aggregate liquidation amount of all 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 Preferred Securities pro rata according to the aggregate
liquidation amount of Preferred Securities held by the relevant Holder relative
to the aggregate liquidation amount of all Preferred Securities outstanding, and
only after satisfaction of all amounts owed to the Holders of the Preferred
Securities, to each Holder of Common Securities pro rata according to the
aggregate liquidation amount of Common Securities held by the relevant Holder
relative to the aggregate liquidation amount of all Common Securities
outstanding.
7. RANKING. The Common Securities rank pari passu and payment thereon
will be made Pro Rata with the Preferred Securities except that where an Event
of Default occurs and is continuing, the rights of Holders of Common Securities
to payment in respect of Distributions and payments upon liquidation, redemption
or otherwise are subordinate to the rights of Holders of the Preferred
Securities.
8. MERGERS, CONSOLIDATIONS OR AMALGAMATIONS. The Trust may not
consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets to, any corporation or other body.
9. TRANSFERS, EXCHANGES, METHOD OF PAYMENTS. Payment of Distributions
and payments on redemption of the Common Securities will be payable, the
transfer of the Common Securities will be registrable, and Common Securities
will be exchangeable for Common Securities of other denominations of a like
aggregate liquidation 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
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<PAGE>
the Trust by check mailed to the address of the persons entitled thereto and
that the payment on redemption of any Common Security will be made only upon
surrender of such Common Security to the Property Trustee. Notwithstanding the
foregoing, transfers of Common Securities are subject to conditions set forth in
Section 9.1(c) of the Declaration.
10. ACCEPTANCE OF INDENTURE. Each Holder of Common Securities, by the
acceptance thereof, agrees to the provisions of the Indenture and the
Debentures, including the subordination provisions thereof.
11. NO PREEMPTIVE RIGHTS. The Holders of Common Securities shall have
no preemptive rights to subscribe to any additional Common Securities or
Preferred Securities.
12. MISCELLANEOUS. These terms shall constitute a part of the
Declaration. The Trust will provide a copy of the Declaration and the Indenture
to a Holder without charge on written request to the Trust at its principal
place of business.
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<PAGE>
Annex I
TRANSFER OF THIS CERTIFICATE
IS SUBJECT TO THE CONDITIONS
SET FORTH IN THE DECLARATION
REFERRED TO BELOW
Certificate Number Number of Common Securities
------ ---------
Certificate Evidencing Common Securities
of
EQ Capital Trust [ ]
____% Common Trust Securities
(liquidation amount $25 per Common Security)
EQ Capital Trust [ ], a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that The Equitable
Companies Incorporated (the "Holder") is the registered owner of
____________________ (_________) common securities of the Trust representing
undivided beneficial interests in the assets of the Trust designated the "____%
Common Trust Securities" (liquidation amount $25 per Common Security) (the
"Common Securities"). The Common Securities are transferable 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 transfer and
satisfaction of the other conditions set forth in the Declaration (as defined
below) including, without limitation Section 9.1(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 __________, 199__, as the same may be amended from time to
time (the "Declaration") including the designation of the terms of Common
Securities as set forth in Exhibit C thereto. The Common Securities and the
Preferred Securities issued by the Trust pursuant to the Declaration represent
undivided beneficial interests in the assets of the Trust, including the
Debentures (as defined in the Declaration) issued by The Equitable Companies
Incorporated, a Delaware corporation, to the Trust pursuant to the Indenture
referred to in the Declaration. The Trust will furnish a copy of the Declaration
and the Indenture 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 (i) agreed to the terms of the Indenture and the Debentures,
including that the Debentures are subordinate and junior in right of payment to
all Senior Debt (as defined in the Indenture) as and to the extent provided in
the Indenture and (ii) agreed to the terms of the Common Guarantee, including
that the Common Guarantee is pari passu with the Debentures and any other
securities that are pari passu by their terms with the Debentures and is
subordinate and junior in right of payment to all other liabilities of EQ,
except those made subordinate by their terms, and senior to all capital stock
now or hereafter issued by EQ and to any guarantee nor or hereafter entered into
by EQ in respect of any of its capital stock.
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_.
EQ CAPITAL TRUST [ ]
By , as Trustee
------------------------
Name:
Title: Trustee
By , as Trustee
------------------------
Name:
Title: Trustee
Dated:
Countersigned and Registered:
- -----------------------------------
- -----------------------------------
Transfer Agent and Registrar
By:
-------------------------------
Authorized Signature
<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)
57991
THE EQUITABLE COMPANIES INCORPORATED
to
THE BANK OF NEW YORK
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of __________________________
Providing for Issuance of
-------- % Junior Subordinated Debentures due------
<PAGE>
FIRST SUPPLEMENTAL INDENTURE (the "Supplemental Indenture"),
dated as of[_______________], from THE EQUITABLE COMPANIES INCORPORATED, a
Delaware corporation (the "Company"), to THE BANK OF NEW YORK, Trustee, a
New York banking corporation (the "Trustee").
Recitals
--------
In accordance with Sections 2.1, 3.1 and 8.1 of the Junior
Subordinated Indenture, dated as of [____________________], from the Company to
the Trustee (the "Indenture"), this Supplemental Indenture is being entered into
in order to establish the form and terms of one series of Securities.
All capitalized terms used herein without definition shall
have the meanings specified in the Indenture.
For and in consideration of the premises, it is mutually
covenanted and agreed as follows:
Section 1. Issuance of _________% Junior Subordinated
Debentures. There shall be a series of debt securities designated the __________
% Junior Subordinated Debentures due _______ (the "Junior Subordinated
Debentures") and such Subordinated Debentures shall have the following terms in
accordance with the provisions of the Indenture and this Supplemental Indenture:
(a) Limitation on Aggregate Principal Amount. The aggregate
principal amount of the Junior Subordinated Debentures which may be
authenticated and delivered shall be limited to $_______________.
(b) Principal Payment Date. Except as set forth in Section 3,
the principal amount of the Junior Subordinated Debentures Outstanding (together
with any accrued and unpaid interest thereon) shall be payable in a single
installment on
- -----------------.
(c) Interest Rate and Interest Payment Dates. The Junior
Subordinated Debentures shall bear interest at the rate per annum of _______%
from and including _________________ (the "Issue Date") or from the most recent
Interest Payment Date (as defined below) to which interest has been paid or duly
provided for on the Junior Subordinated Debentures. To the extent allowed by
law, the Company will also pay interest on overdue principal, premium and
interest at such rate. Interest shall be payable (subject to paragraph (d)
below) ________ in arrears on the last day of each calendar month (each an
"Interest Payment Date"), commencing on _____________. Interest payable on any
Junior Subordinated Debenture that is punctually paid or
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<PAGE>
duly provided for on any Interest Payment Date shall be paid to the person in
whose name such Junior Subordinated Debenture is registered at the close of
business on the regular record date for such interest installment, which, except
as set forth below, shall be, in respect of any Junior Subordinated Debenture of
which the Property Trustee is the registered holder or a Global Debenture, the
close of business on the ______________ Business Day preceding that Interest
Payment Date. Notwithstanding the foregoing sentence, if the Preferred
Securities are no longer in book-entry only form, or if Junior Subordinated
Debentures are not represented by a Global Debenture, the regular record dates
for such interest installment shall be the close of business on the
_______________ Business Day preceding that Interest Payment Date (in each case,
a "Regular Record Date"). Interest will be computed on the basis of twelve
30-day months and a 360-day year and, for any period shorter than a full
calendar month, on the basis of the actual number of days elapsed in such
period. If any date on which interest is payable on the Junior Subordinated
Debentures is not a Business Day, the payment of interest due on such date may
be made on the next succeeding Business Day (and without any interest or other
payment in respect of 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, with the same force and effect as if made on such date.
A "Business Day" shall mean any day other than a day on which banking
institutions in The City of New York or __________________________________ are
authorized or required by law to close. The interest so payable on the Junior
Subordinated Debentures which is not punctually paid or provided for shall
forthwith cease to be payable to the Persons in whose names such Junior
Subordinated Debentures are registered on the relevant Regular Record Date, and
such defaulted interest shall instead be payable to the Persons in whose names
such Junior Subordinated Debentures are registered on the Special Record Date or
other specified date in accordance with the Indenture; provided, however, that
interest shall not be considered payable by the Company on any Interest Payment
Date falling within an Extension Period (as defined below) unless the Company
has elected to make a full or partial payment of interest accrued on the
Subordinated Debentures on such Interest Payment Date.
(d) Option to Extend Interest Payment. (1) Notwithstanding
anything contained in the Indenture or this Supplemental Indenture to the
contrary, so long as the Company is not then in default in the payment of any
interest on the Junior Subordinated Debentures, the Company shall have the right
at any time during the term of the Junior Subordinated Debentures, by notice
given prior to an
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<PAGE>
Interest Payment Date as provided below, to extend the interest payment period
from time to time to another Interest Payment Date by one or more ____________
periods, not to exceed at any one time __________ consecutive _________ interest
periods from the last Interest Payment Date to which interest was paid in full
(each, an "Extension Period"). Except as provided in the next succeeding
sentence, no interest shall be due and payable during an Extension Period, but
at the end of each Extension Period the Company shall pay to the Holders of
record on the Regular Record Date for such Interest Payment Date (regardless of
who the Holders of record may have been on other dates during the Extension
Period) all interest then accrued and unpaid on the Junior Subordinated
Debentures, together with interest thereon, compounded monthly commencing on the
first Interest Payment Date in such Extension Period, at the rate specified for
the Junior Subordinated Debentures to the extent permitted by applicable law
("Compounded Interest"). Prior to the termination of any Extension Period, the
Company may pay all or any portion of the interest accrued on the Junior
Subordinated Debentures on any Interest Payment Date to Holders of record on the
Regular Record Date for such Interest Payment Date or from time to time further
extend the interest payment period; provided that any such Extension Period
together with all such previous and further extensions thereof may not exceed
________________ interest periods at any one time. If the Company shall elect to
pay all of the interest accrued on the Junior Subordinated Debentures on an
Interest Payment Date during an Extension Period, such Extension Period shall
automatically terminate on such Interest Payment Date. Upon the termination of
any Extension Period and the payment of all amounts of interest then due, the
Company may select a new Extension Period, subject to the above requirements.
(2) So long as the Property Trustee is the legal owner and holder of
record of the Junior Subordinated Debentures, at the time the Company selects an
Extension Period, the Company shall give both the Property Trustee and the
Trustee written notice of its selection of such Extension Period one business
day prior to the earlier of (i) the next succeeding date on which distributions
on the Preferred Securities are payable or (ii) the date EQ Capital Trust [ ] is
required to give notice of the record date or the date such distributions are
payable to the New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Preferred Securities, but in any event not
less than one business day prior to such record date. The Company shall cause EQ
Capital Trust [ ] to give notice of the Company's selection of such Extension
Period to the holders of the Preferred Securities.
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(3) If as a result of the dissolution of EQ Capital Trust [ ] Junior
Subordinated Debentures have been distributed to holders of Preferred Securities
and Common Securities, at the time the Company selects an Extension Period, the
Company shall give the holders of the Junior Subordinated Debentures and the
Trustee written notice of its selection of such Extension Period at least 10
Business Days prior to the earlier of (i) the next succeeding Interest Payment
Date or (ii) the date the Company is required to give notice of the record or
payment date of such interest payment to the New York Stock Exchange or other
applicable self-regulatory organization or to holders of the Junior Subordinated
Debentures.
(4) The period in which any notice is given pursuant to paragraph (2)
or (3) of this Section 1(d) shall be counted as one of the ______ periods
permitted in the maximum Extension Period permitted under this Section 1(d).
(e) Place of Payment and Method of Payment. The place of
payment of principal and interest on the Subordinated Debentures shall initially
be the Corporate Trust Office of the Trustee; provided, however, that payment of
principal and interest may be paid at the option of the Company (i) by check
mailed to the addresses of the Persons in whose names such Junior Subordinated
Debentures are registered on the relevant record date or (ii) by wire transfer
of immediately available funds to any Holder entitled thereto as specified in
the Register of Holders of the Junior Subordinated Debentures; and provided,
further, that the final payment of principal shall be payable only upon
surrender of such Junior Subordinated Debentures to the Paying Agent.
Notwithstanding the foregoing, so long as the Property Trustee is the legal
owner and record holder of the Junior Subordinated Debentures, the payment of
the principal
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<PAGE>
of and interest (including Compounded Interest, if any) on the Junior
Subordinated Debentures held by the Property Trustee will be made by the Company
in immediately available funds on the payment date therefor to the Property
Account (as defined in the Declaration of Trust) established and maintained by
the Property Trustee pursuant to the Declaration of Trust.
(f) Limitation on Dividends and Capital Stock Acquisitions. The Company
covenants and agrees that the Company will not declare or pay any dividends on,
or redeem, purchase, acquire or make any distribution, liquidation or guarantee
payment with respect to its capital stock, if at any time, (i) it shall have
failed to make any payment of interest, principal or premium on the Junior
Subordinated Debentures when due (after giving effect to any grace period for
payment thereof as provided in Section 5.1 of the Indenture), (ii) the Company
shall have given notice of its election to defer payments of interest on the
Junior Subordinated Debentures held by EQ Capital Trust[ ] as trust assets by
extending the interest payment period as provided in the terms of the Junior
Subordinated Debentures and such period, or any extension thereof, is
continuing, or (iii) the Company shall be in default with respect to its
Guarantee Payments (as defined in the Preferred Securities Guarantee), provided,
that the Company may (A) make redemptions, purchases, retirements, acquisitions
or distributions in shares of capital stock of the Company or redemptions,
purchases or acquisitions of shares of Common Stock of the Company, par value
$.01 per share (the "Common Stock"), for purposes of any employee benefit plan
or program of the Company or any Subsidiary and (B) pay accrued dividends (and
cash in lieu of fractional shares) upon the conversion of any preferred stock of
the Company as may be outstanding from time to time, in accordance with the
terms of such stock. The term "capital stock" shall include the Company's Common
Stock and any issue of preferred stock from time to time outstanding but shall
not include any indebtedness of any kind, whether or not convertible or
exchangeable for shares of Common Stock or preferred stock.
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<PAGE>
(g) Denominations. The Junior Subordinated Debentures, whether
certificated or in global form, shall be fully registered, without coupons, and
issued in minimum denominations of $25 and any integral multiples of $25 in
excess thereof.
(h) Form of Debentures. The Junior Subordinated Debentures
shall be issuable as Registered Securities only and shall be substantially in
the form, attached as Exhibit A-1 and A-2 hereto.
(i) Defeasance and Covenant Defeasance. The provisions of
Sections 4.4 and 4.5 of the Indenture entitled "Defeasance and Discharge" and
"Covenant Defeasance", respectively, shall apply to the Junior Subordinated
Debentures; provided that it shall be a condition to the application of Section
4.4 or Section 4.5 of the Indenture to the Junior Subordinated Debentures, in
addition to the conditions set forth in subsections (b) through (i) of Section
4.6 of the Indenture, that the Company shall have deposited or caused to be
deposited irrevocably with the Trustee (or another trustee satisfying the
requirements of Section 6.12 of the Indenture who shall agree to comply with,
and shall be entitled to the benefits of, the provisions of Sections 4.3 through
4.9 inclusive of the Indenture and the last paragraph of Section 9.3 of the
Indenture applicable to the Trustee, for purposes of such Sections also a
"Trustee") as trust funds in trust for the purpose of making the payments
referred to below in this Section l(i), specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the Junior Subordinated
Debentures, with written instructions to the Trustee as to the application
thereof, (A) money in an amount or (B) Government Obligations which through the
payment of interest and principal in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any payment
referred to below in this Section 1(i), money in an amount or (C) a combination
thereof in an amount, sufficient, in the opinion of a nationally recognized firm
of independent certified public accountants expressed in a written certification
thereof
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<PAGE>
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee to pay and discharge, the principal of, premium, if any, and
interest (including interest accruing during any Extension Period specified at
the time of the establishment of the trust), if any, on the Junior Subordinated
Debentures on the Maturity of such principal or installment of interest. Before
such a deposit the Company may make arrangements satisfactory to the Trustee for
the redemption of Securities at a future date or dates in accordance with
Section 3 which shall be given effect in applying the foregoing. For the purpose
of such defeasance or covenant defeasance, the term "Government Obligations"
shall only include obligations of the United States or an agency or
instrumentality of the United States. If the Company establishes a trust as
provided in this Section 1(i), it shall be permitted at the date of
establishment to extend the interest payment period pursuant to Section 1(d) for
only one Extension Period (including any Extension Period outstanding at the
date of such establishment).
(j) Sinking Fund Obligations. The Company has no obligation to
redeem or purchase any Junior Subordinated Debentures pursuant to any sinking
fund or analogous requirement or upon the happening of a specified event or at
the option of a Holder thereof.
(k) Junior Subordinated Debentures Constituting Indebtedness.
Each Junior Subordinated Debenture issued hereunder shall provide that the
Company and, by its acceptance of a Junior Subordinated Debenture or a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, such Junior Subordinated Debenture agree that for United
States federal, state and local tax purposes it is intended that such Junior
Subordinated Debenture constitute indebtedness.
(l) Registrar and Paying Agent. The Trustee shall initially
serve as Registrar and Paying Agent for the Junior Subordinated Debentures.
(m) Initial Depositary. The initial depositary for the Junior
Subordinated Debentures shall be The Depository Trust Company ("DTC").
(n) Global Securities. The Junior Subordinated Debentures
shall initially be issued in certificated form (the "Certificated Junior
Subordinated Debentures") and may from time to time be issued in global form
(the "Global Junior Subordinated Debenture"). Beneficial owners of interests in
the Global Junior Subordinated Debenture may exchange all or a portion of such
beneficial interests for Certificated Junior Subordinated Debentures at any
time, in accordance
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<PAGE>
with the applicable rules of the Depositary. Holders of Certificated Junior
Subordinated Debentures who are eligible to hold an interest in the Global
Junior Subordinated Debenture may exchange all or a portion of such Certificated
Junior Subordinated Debentures for an interest in the Global Junior Subordinated
Debenture at any time, in accordance with the applicable rules of the
Depositary.
Section 2. (a) Except as provided in Section 2(b), Junior Subordinated
Debentures may not be redeemed by the Company [prior to ______________, 200__].
Subject to the terms of Articles Ten and Eleven of the Indenture, the Company
shall have the right to redeem Junior Subordinated Debentures for cash, in whole
or in part, from time to time, [on or after ________________, 200__], at a
redemption price equal to 100% of the principal amount to be redeemed plus any
accrued and unpaid interest therein, including Compounded Interest, if any, to
the date of such redemption (the "Optional Redemption Price"). Any redemption
pursuant to this paragraph will be made upon not less than 30 nor more than 60
days' notice, at the Optional Redemption Price.
(b) If, at any time, a Tax Event (as defined below) shall occur or be
continuing the Company shall have the right at any time, upon not less than 30
nor more than 60 days'
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<PAGE>
notice, to redeem the Junior Subordinated Debentures in whole or in part for
cash at the Optional Redemption Price within 90 days following the occurrence of
such Tax Event; provided, however, that, if at the time there is available to
the Company or the Regular Trustees on behalf of EQ Capital Trust [ ] the
opportunity to eliminate, within such 90 day period, the Tax Event by taking
some ministerial action, such as filing a form or making an election, or
pursuing some other similar reasonable measure, which has no adverse effect on
EQ Capital Trust [ ], the Company or the holders of the Preferred Securities,
the Company or the Regular Trustees on behalf of EQ Capital Trust [ ] will
pursue such measure in lieu of redemption.
"Tax Event" means that the Company shall have obtained an opinion of
nationally recognized independent tax counsel experienced in such matters to the
effect that, as a result of (a) any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein, (b) any amendment to, or change in, an interpretation or application of
any such laws or regulations by any legislative body, court, governmental agency
or regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination), (c) any
interpretation or pronouncement that provides for a position with respect to
such laws or regulations that differs from the theretofore generally accepted
position or (d) any action taken by any governmental agency or regulatory
authority, which amendment or change is enacted, promulgated, issued or
announced or which interpretation or pronouncement is issued or announced or
which action is taken, in each case on or after the day before the date of
issuance of Preferred Securities under the Declaration, there is more than an
insubstantial risk (x) that the Trust is, or will be within 90 days of the date
thereof, subject to United States federal income tax with respect to income
received or accrued on the Junior Subordinated Debentures and that the Trust
would be subject to United States federal income tax if the Debentures were
distributed to the holders of the Securities in liquidation of such holders'
interests in the Trust pursuant to the exercise by the Company of its right to
dissolve the Trust, (y) that interest payable by the Company on the Junior
Subordinated Debentures is not, or within 90 days of the date thereof, will not
be, deductible, in whole or in part, for United States federal income tax
purposes, even if the Junior Subordinated Debentures were distributed to the
holders of the Preferred Securities and Common Securities of EQ Capital Trust
[ ] in liquidation of such holders' interests in the Trust pursuant to the
exercise by the Company of its right to dissolve EQ Capital Trust [ ]
or (z) that the EQ Capital Trust [ ] is, or will be within 90 days of the date
thereof, subject to more than a de minimis amount of other taxes, duties or
other governmental charges and that the EQ Capital Trust [ ] would be subject to
more than a de minimis amount of taxes, duties or other governmental charges if
the Junior Subordinated Debentures were distributed to the holders of the
Preferred Securities and Common Securities of EQ Capital Trust [ ] in
liquidation of such holders' interests in EQ Capital Trust [ ] pursuant to the
exercise by the Company of its right to dissolve the EQ Capital Trust [ ].
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<PAGE>
(c) If the Junior Subordinated Debentures are only partially redeemed
pursuant to this Section Two, the Junior Subordinated Debentures will be
redeemed pro rata or by lot or by any other method utilized by the Trustee,
provided that to the extent at the time of redemption, Junior Subordinated
Debentures are registered as a Global Debenture, the Trustee and the Depository
shall determine by lot or other equitable method the principal amount of such
Junior Subordinated Debentures held by each Holder to be redeemed in accordance
with its customary procedures. Notwithstanding the foregoing, if a partial
redemption of the Junior Subordinated Debentures would result in the delisting
of the Preferred Securities by any national securities exchange or other
organization on which the Preferred Securities are then listed, the Company
shall not be permitted to effect such partial redemption and will only redeem
the Junior Subordinated Debentures in whole.
Section 3. Expenses.
(a) In connection with the purchase of the Junior Subordinated
Debentures by EQ Capital Trust [ ], the Company shall be responsible for and
shall pay for all debts and obligations (other than with respect to the Junior
Subordinated Debentures) and all costs and expenses of EQ Capital Trust [ ]
(including, but not limited to, costs and expenses relating to the organization
of EQ Capital Trust [ ], the issuance of the Preferred Securities to initial
purchasers thereof, the fees and expenses (including reasonable counsel fees and
expenses) of the Trustees (as defined in the Declaration, as defined below)
(including any amounts payable under Article X of the Amended and Restated
Declaration of Trust of EQ Capital Trust [ ] (the "Declaration")), the costs and
expenses relating to the operation of EQ Capital 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), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the disposition of assets of EQ
Capital Trust [ ]).
(b) In connection with the purchase of the Junior Subordinated
Debentures by EQ Capital Trust [ ], the Company will pay any and all taxes
(other than United States withholding taxes attributable to EQ Capital Trust [ ]
or its assets) and all liabilities, costs and expenses with respect to such
taxes of EQ Capital Trust [ ].
Section 4. Miscellaneous.
(a) Counterparts. This Supplemental Indenture may be executed
in any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one instrument.
(b) Governing Law. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York.
(c) Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
(d) Successor and Assigns. All covenants and agreements in
this Supplemental Indenture by the Company shall bind its successor and assigns,
whether so expressed or not.
(e) Separability. In case any provision of this Supplemental
Indenture or the Junior Subordinated Debentures shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
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<PAGE>
(f) Benefits of Indenture. Nothing in this Supplemental
Indenture or in the Junior Subordinated Debentures, expressed or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
THE EQUITABLE COMPANIES
INCORPORATED
By: _______________________
Name:
Title:
(Seal]
Attest:
- -------------------------
THE BANK OF NEW YORK,
as Trustee
By: _______________________
Name:
Title:
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<PAGE>
EXHIBIT A-1
[CUSIP]
[FORM OF FACE OF CERTIFICATED DEBENTURE]
REGISTERED REGISTERED
THE EQUITABLE COMPANIES INCORPORATED
Principal Amount:
No...... $......
________% Junior Subordinated Debenture due______________
THE EQUITABLE COMPANIES INCORPORATED, a corporation duly
organized and existing under the laws of the state of Delaware (herein referred
to as the "Company", which term includes any successor corporation under the
Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to _________________________________ or registered assigns, the
principal sum of ________________________________ Dollars ($______________) on
________________ (subject to earlier redemption at the option of the Company),
and, subject to the right of the Company to extend the interest payment period
on this Debenture as provided on the reverse hereof, to pay interest on the
unpaid principal amount hereof, _______ on ____________________________________
(each an "Interest Payment Date"), commencing on _____________________, at the
rate of ___% per annum from and including ___________________ (the "Issue
Date")or from the most recent Interest Payment Date to which interest has been
paid or duly provided for on this Debenture, until the principal hereof is paid
or made available for payment.
The interest so payable on this Debenture which is punctually
paid or provided for shall be paid to the Person in whose name this Debenture is
registered at the close of business on the regular record date for such interest
installment, which, except as set forth below, shall be, in respect of any
Junior Subordinated Debenture of which the Property Trustee is the registered
holder or a Global Debenture, the close of business on the _______ Business Day
preceding that Interest Payment Date. Notwithstanding the foregoing sentence, if
the Preferred Securities are no longer in book-entry only form, or if Junior
Subordinated Debentures are not represented by a Global Debenture, the regular
record dates for such interest installment shall be
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the close of business on the _____________ Business Day preceding that Interest
Payment Date (in each case, a "Regular Record Date"). The interest so payable
on this Debenture which is not punctually paid or provided for shall forthwith
cease to be payable to the Person in whose name this Debenture is registered on
the relevant record date, and such defaulted interest shall instead be payable
to the Person in whose name this Debenture is registered on the special record
date or other specified date in accordance with the Indenture; provided,
however, that interest shall not be considered payable by the Company on any
Interest Payment Date falling during the extension of any interest payment
period as provided on the reverse hereof unless the Company has elected to make
a full or partial payment of interest accrued on this Debenture on such Interest
Payment Date.
To the extent allowed by law, the Company will pay interest on
overdue installments of principal and interest at the applicable rate of
interest borne by this Debenture.
Payment of the principal and interest on this Debenture will
initially be paid at [_________________] as Trustee, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts. Notwithstanding the foregoing, payment of
principal and interest may be paid at the option of the Company (i) by check
mailed to the address of the Person in whose name this Debenture is registered
on the relevant record date or (ii) by wire transfer of immediately available
funds to any Holder entitled thereto as specified in the Register of Holders of
the Debentures, provided that the final payment of principal shall be payable
only upon surrender of this Debenture to the Paying Agent. Notwithstanding the
foregoing, so long as the Property Trustee is the legal owner and record holder
of the Junior Subordinated Debentures, the payment of the principal of and
interest (including Compounded Interest, if any) on the Junior Subordinated
Debentures held by the Property Trustee will be made by the Company in
immediately available funds on the payment date therefor to the Property Account
(as defined in the Declaration of Trust) established and maintained by the
Property Trustee pursuant to the Declaration of Trust.
Reference is hereby made to the further provisions of this
Debenture set forth on the reverse hereof. Such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
This Debenture shall not be valid or become obligatory for any
purpose until the certificate of authentica-
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<PAGE>
tion hereon shall have been signed by the Trustee under the Indenture referred
to on the reverse hereof.
IN WITNESS WHEREOF, THE EQUITABLE COMPANIES INCORPORATED, has
caused this instrument to be executed in its corporate name by the manual or
facsimile signatures of duly authorized officers, and impressed or imprinted
with its corporate seal or facsimile thereof, attested by the manual or
facsimile signature of its Secretary or one of its Assistant Secretaries.
Dated: ________________
[Seal] THE EQUITABLE COMPANIES
INCORPORATED
By: __________________
Attest: Name:
Title
By: ________________
Name:
Title:
By: __________________
Name:
Title:
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series described in the
within-mentioned Indenture.
THE BANK OF NEW YORK
as Trustee
Dated: ________________
By: _____________________
Authorized Signatory
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<PAGE>
[FORM OF REVERSE OF DEBENTURE]
THE EQUITABLE COMPANIES INCORPORATED
_______% Junior Subordinated Debenture due _________
This Debenture is one of the securities of the Company, all
issued or to be issued under an Indenture, dated as of _________________, duly
executed and delivered by the Company to ________________________, as Trustee
(hereinafter, the "Trustee", which term includes any successor trustee under
such Indenture), as supplemented by a First Supplemental Indenture, dated as of
____________________ (as so supplemented, the "Indenture"), duly executed and
delivered by the Company to the Trustee, to which Indenture, and all indentures
supplemental thereto reference is hereby made for a description of the
respective rights and duties thereunder of the Trustee, the Company and the
Holders of the Junior Subordinated Debentures. This Debenture is designated as
one of the _______% Junior Subordinated Debentures due _____________ (the
"Junior Subordinated Debentures"), limited in aggregate principal amount to
_____________, and is issued pursuant to the Indenture.
Notwithstanding anything contained in the Indenture to the
contrary, so long as the Company is not then in default in the payment of any
interest on the Junior Subordinated Debentures, the Company shall have the right
at any time during the term of the Junior Subordinated Debentures, by notice
given prior to an Interest Payment Date as provided below, to extend the
interest payment period from time to time to another Interest Payment Date by
one or more _________ periods, not to exceed at any one time ______ consecutive
_________ interest periods from the last Interest Payment Date to which interest
was paid in full (each, an "Extension Period"). Except as provided in the next
succeeding sentence, no interest shall be due and payable during an Extension
Period, but at the end of each Extension Period the Company shall pay to the
Holders of record on the Regular Record Date for such Interest Payment Date
(regardless of who the Holders of record may have been on other dates during the
Extension Period) all interest then accrued and unpaid on the Junior
Subordinated Debentures, together with interest thereon, compounded ___________
commencing on the first Interest Payment Date in such Extension Period, at the
rate specified for the Junior Subordinated Debentures to the extent permitted by
applicable law ("Compounded Interest"). Prior to the termination of any
Extension Period, the Company may pay all or any portion of the interest accrued
on the Junior
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<PAGE>
Subordinated Debentures on any Interest Payment Date to Holders of record on the
Regular Record Date for such Interest Payment Date or from time to time further
extend the interest payment period, provided that any such Extension Period
together with all such previous and further extensions thereof may not exceed
________ interest periods at any one time. If the Company shall elect to pay all
of the interest accrued on the Junior Subordinated Debentures on an Interest
Payment Date during an Extension Period, such Extension Period shall
automatically terminate on such Interest Payment Date. Upon the termination of
any Extension Period and the payment of all amounts of interest then due, the
Company may select a new Extension Period, subject to the above requirements.
So long as the Property Trustee is the legal owner and holder
of record of the Junior Subordinated Debentures, at the time the Company selects
an Extension Period, the Company shall give both the Property Trustee and the
Trustee written notice of its selection of such Extension Period one business
day prior to the earlier of (i) the next succeeding date on which distributions
on the Preferred Securities are payable or (ii) the date EQ Capital Trust [ ] is
required to give notice of the record date or the date such distributions are
payable to the New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Preferred Securities, but in any event not
less than one business day prior to such record date. The Company shall cause EQ
Capital Trust [ ] to give notice of the Company's selection of such Extension
Period to the holders of the Preferred Securities.
If as a result of a Dissolution Event Junior Subordinated
Debentures have been distributed to holders of Preferred Securities and Common
Securities, at the time the Company selects an Extension Period, the Company
shall give the holders of the Junior Subordinated Debentures and the
Trustee written notice of its selection of such Extension Period at least 10
Business Days prior to the earlier of (i) the next succeeding Interest Payment
Date or (ii) the date the Company is required to give notice of the record or
payment date of such interest payment to the New York Stock Exchange or other
applicable self-regulatory organization or to holders of the Junior Subordinated
Debentures.
- 5 -
<PAGE>
Except as provided in the next paragraph, Junior Subordinated
Debentures may not be redeemed by the Company [prior to ______________, 200__].
The Company shall have the right to redeem this Debenture for cash at the option
of the Company, without premium or penalty, in whole or in part, at any time [on
or after ________________, 200__], (an "Optional Redemption"), at a redemption
price equal to 100% of the principal amount plus any accrued and unpaid
interest,including Compounded Interest, if any, to the date of such redemption
(the "Optional Redemption Price"). Any redemption pursuant to this paragraph
will be made upon not less than 30 nor more than 60 days' notice, at the
Optional Redemption Price. If the Junior Subordinated Debentures are only
partially redeemed by the Company pursuant to an Optional Redemption, the Junior
Subordinated Debentures will be redeemed pro rata or by lot or by any other
method utilized by the Trustee, provided that to the extent at the time of
redemption, Junior Subordinated Debentures are registered as a Global Debenture,
the Trustee and the Depository shall determine by lot or other equitable method
the principal amount of such Junior Subordinated Debentures held by each Holder
to be redeemed in accordance with its customary procedures. Notwithstanding the
foregoing, if a partial redemption of the Junior Subordinated Debentures would
result in the delisting of the Preferred Securities by any national securities
exchange or other organization on which the Preferred Securities are then
listed, the Company shall not be permitted to effect such partial redemption and
will only redeem the Junior Subordinated Debentures in whole.
If, at any time, a Tax Event (as defined below) shall occur or be
continuing
- 6 -
<PAGE>
the Company shall have the right at any time, upon not less than 30 nor more
than 60 days' notice, to redeem the Junior Subordinated Debentures in whole or
in part for cash at the Optional Redemption Price within 90 days following the
occurrence of such Tax Event; provided, however, that, if at the time there is
available to the Company or the Regular Trustees on behalf of EQ Capital Trust
[ ] the opportunity to eliminate, within such 90 day period, the Tax Event by
taking some ministerial action (such as filing a form or making an election, or
pursuing some other similar reasonable measure, which has no adverse effect on
EQ Capital Trust [ ], the Company or the holders of the Preferred Securities,
the Company or the Regular Trustees on behalf of EQ Capital Trust [ ] will
pursue such measure in lieu of redemption.
"Tax Event" means that the Company shall have obtained an opinion of
nationally recognized independent tax counsel experienced in such matters to the
effect that, as a result of (a) any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein, (b) any amendment to, or change in, an interpretation or application of
any such laws or regulations by any legislative body, court, governmental agency
or regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination), (c) any
interpretation or pronouncement that provides for a position with respect to
such laws or regulations that differs from the theretofore generally accepted
position or (d) any action taken by any governmental agency or regulatory
authority, which amendment or change is enacted, promulgated, issued or
announced or which interpretation or pronouncement is issued or announced or
which action is taken, in each case on or after the day before the date of
issuance of Preferred Securities under the Declaration, there is more than an
insubstantial risk (x) that the Trust is, or will be within 90 days of the date
thereof, subject to United States federal income tax with respect to income
received or accrued on the Junior Subordinated Debentures and that the Trust
would be subject to United States federal income tax if the Debentures were
distributed to the holders of the Securities in liquidation of such holders'
interests in the Trust pursuant to the exercise by the Company of its right to
dissolve the Trust, (y) that interest payable by the Company on the Junior
Subordinated Debentures is not, or within 90 days of the date thereof, will not
be, deductible, in whole or in part, for United States federal income tax
purposes, even if the Junior Subordinated Debentures were distributed to the
holders of the Preferred Securities and Common Securities of EQ Capital Trust
[ ] in liquidation of such holders' interests in the Trust pursuant to the
exercise by the Company of its right to dissolve EQ Capital Trust [ ]
or (z) that the EQ Capital Trust [ ] is, or will be within 90 days of the date
thereof, subject to more than a de minimis amount of other taxes, duties or
other governmental charges and that the EQ Capital Trust [ ] would be subject to
more than a de minimis amount of taxes, duties or other governmental charges if
the Junior Subordinated Debentures were distributed to the holders of the
Preferred Securities and Common Securities of EQ Capital Trust [ ] in
liquidation of such holders' interests in EQ Capital Trust [ ] pursuant to the
exercise by the Company of its right to dissolve the EQ Capital Trust [ ].
- 7 -
<PAGE>
The Indenture contains provisions for defeasance and covenant
defeasance at any time of the indebtedness evidenced by this Debenture upon
compliance by the Company with certain conditions set forth therein.
If an Event of Default shall have occurred and be continuing,
the principal hereof may be declared, and upon such declaration become, due and
payable, in the manner, with the effect and subject to the conditions provided
in the Indenture.
The indebtedness evidenced by the Junior Subordinated
Debentures is, to the extent and in the manner provided in the Indenture,
subordinate and subject in right of payment to the prior payment in full of
Senior Debt as defined in the Indenture and this Debenture is issued subject to
the provisions of the Indenture with respect thereto. Each Holder of this
Debenture, by accepting the same, agrees to and shall be bound by such
provisions and authorizes the Trustee in his behalf to take such action as may
be necessary or appropriate to effectuate the subordination so provided and
appoints the Trustee his attorney-in-fact for such purpose.
The Company and, by its acceptance of this Debenture or a
beneficial interest herein, the Holder of, and any Person that acquires a
beneficial interest in, this Debenture agree that for United States federal,
state and local tax purposes it is intended that this Debenture constitute
indebtedness.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount (calculated as provided in the Indenture) of the
outstanding
- 8 -
<PAGE>
Junior Subordinated Debentures to modify the Indenture or any supplemental
indenture with respect to the rights of the Holders of the Junior Subordinated
Debentures, provided that no such modification shall (i) extend the fixed
maturity of any Junior Subordinated Debenture, or reduce the principal thereof,
or reduce the rate or extend the time of payment of interest thereon without the
consent of the Holders of each such Junior Subordinated Debenture so affected,
(ii) modify the provisions of the Indenture with respect to the subordination of
the Junior Subordinated Debentures in a manner adverse to the Holders thereof,
or (iii) reduce the aforesaid percentage of Junior Subordinated Debentures the
consent of the Holders of which is required for any such modification without
the consent of the Holder of each such Junior Subordinated Debenture so
affected. Any such consent given by the Holder of this Debenture shall be
conclusive and binding upon such Holder and all future Holders of this Debenture
and of any Junior Subordinated Debenture issued on registration hereof, the
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, premium,
if any, and interest on this Debenture at the place, at the respective time and
at the rate herein prescribed.
This Debenture is issuable in registered form without coupons
and in denominations of $25 and any integral multiples of $25 in excess thereof.
This Debenture may be exchanged for a like aggregate principal amount of Junior
Subordinated Debentures of other authorized denominations in the manner and
subject to the limitations provided in the Indenture.
Upon due presentment for registration of transfer of this
Debenture, the Company shall execute and the Trustee shall authenticate and
deliver a new Junior Subordinated Debenture or Junior Subordinated Debentures of
like tenor and authorized denominations for an equal aggregate principal amount
in exchange herefor, subject to the limitations provided in the Indenture.
No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
- 9 -
<PAGE>
Prior to due presentment of this Debenture for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the person in whose name this Debenture is registered as the owner
hereof for all purposes (subject to the provisions hereof with respect to
determination of the person to whom interest is payable).
All terms used in this Debenture which are defined in the
Indenture shall have the respective meanings assigned to them in the Indenture.
THIS DEBENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
- 10 -
<PAGE>
ASSIGNMENT
(To be executed by the registered Holder
if such Holder desires to transfer this Debenture)
FOR VALUE RECEIVED __________________________________ hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
TAX IDENTIFYING NUMBER OF TRANSFEREE
- ----------------------------------------
- --------------------------------------------------------------------------------
(Please print name and address of transferee)
- --------------------------------------------------------------------------------
this Debenture, together with all right, title and interest herein, and does
hereby irrevocably constitute and appoint Attorney to transfer
this Debenture on the securities register relating to this Debenture, with full
power of substitution.
Dated: _________________ _______________________
Signature
-----------------------
Signature Guaranteed
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the [Registrar], which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the [Registrar] in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
NOTICE: The signature to the foregoing assignment must correspond to the name as
written upon the face of this Debenture in every particular, without alteration
or any change whatsoever.
- 11 -
<PAGE>
EXHIBIT A-2
[CUSIP]
[FORM OF FACE OF GLOBAL DEBENTURE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS DEBENTURE IS IN GLOBAL FORM WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A
NOMINEE OF DTC. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
DEBENTURES IN CERTIFICATED FORM, THIS DEBENTURE MAY NOT BE TRANSFERRED EXCEPT AS
A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER
NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
REGISTERED REGISTERED
THE EQUITABLE COMPANIES INCORPORATED
Original Principal
Amount (subject to
reduction as
herein provided):
No...... $......
___________% Junior Subordinated Debenture due ___________
THE EQUITABLE COMPANIES INCORPORATED, a corporation duly
organized and existing under the laws of the state of Delaware (herein referred
to as the "Company", which term includes any successor corporation under the
Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to _________________________________ or registered assigns, the
principal sum of ___________________________ Dollars ($______________) or such
amount as shall be the outstanding principal amount hereof, after (i)
subtracting the aggregate principal amount
- 1 -
<PAGE>
of the Junior Subordinated Debentures that are not in global form (the
"Certificated Junior Debentures") issued upon transfer or exchange for a portion
or portions hereof as reflected on Schedule A hereto and (ii) adding the
aggregate principal amount of any Certificated Junior Debentures which are
cancelled upon a transfer or exchange for a resulting portion or portions hereof
as reflected on Schedule A hereto, on ________________ (subject to earlier
redemption at the option of the Company), and, subject to the right of the
Company to extend the interest payment period on this Debenture as provided on
the reverse hereof, to pay interest on the unpaid principal amount hereof,
_______ on ________________________________________ (each an "Interest Payment
Date"), commencing on ________________ the rate of _________% per annum from and
including _______________ (the "Issue Date") or from the most recent Interest
Payment Date to which interest has been paid or duly provided for on this
Debenture, until the principal hereof is paid or made available for payment.
The interest so payable on this Debenture which is punctually
paid or provided for shall be paid to the Person in whose name this Debenture is
registered at the close of business on the regular record date for such interest
installment, which, except as set forth below, shall be, in respect of any
Junior Subordinated Debenture of which the Property Trustee is the registered
holder or a Global Debenture, the close of business on the _______ Business Day
preceding that Interest Payment Date. Notwithstanding the foregoing sentence, if
the Preferred Securities are no longer in book-entry only form, or if Junior
Subordinated Debentures are not represented by a Global Debenture, the regular
record dates for such interest installment shall be the close of business on the
______________ Business Day preceding that Interest Payment Date (in each case,
a "Regular Record Date"). The interest so payable on this Debenture which is not
punctually paid or provided for shall forthwith cease to be payable to the
Person in whose name this Debenture is registered on the relevant record date,
and such defaulted interest shall instead be payable to the Person in whose name
this Debenture is registered on the special record date or other specified date
in accordance with the Indenture; provided, however, that interest shall not be
considered payable by the Company on any Interest Payment Date falling during
the extension of any interest payment period as provided on the reverse hereof
unless the Company has elected to make a full or partial payment of interest
accrued on this Debenture on such Interest Payment Date.
- 2 -
<PAGE>
To the extent allowed by law, the Company will pay interest on
overdue installments of principal and interest at the applicable rate of
interest borne by this Debenture.
Payment of the principal and interest on this Debenture will
initially be paid at ________________________as Trustee, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. Notwithstanding the foregoing,
payment of principal and interest may be paid at the option of the Company (i)
by check mailed to the address of the Person in whose name this Debenture is
registered on the relevant record date or (ii) by wire transfer of immediately
available funds to any Holder entitled thereto as specified in the Register of
Holders of the Debentures, provided that the final payment of principal shall be
payable only upon surrender of this Debenture to the Paying Agent.
Notwithstanding the foregoing, so long as the Property Trustee is the legal
owner and record holder of the Junior Subordinated Debentures, the payment of
the principal of and interest (including Compounded Interest, if any) on the
Junior Subordinated Debentures held by the Property Trustee will be made by the
Company in immediately available funds on the payment date therefor to the
Property Account (as defined in the Declaration of Trust) established and
maintained by the Property Trustee pursuant to the Declaration of Trust.
Reference is hereby made to the further provisions of this
Debenture set forth on the reverse hereof. Such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
This Debenture shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been signed by
the Trustee under the Indenture referred to on the reverse hereof.
- 3 -
<PAGE>
IN WITNESS WHEREOF, THE EQUITABLE COMPANIES INCORPORATED, has
caused this instrument to be executed in its corporate name by the manual or
facsimile signatures of duly authorized officers, and impressed or imprinted
with its corporate seal or facsimile thereof, attested by the manual or
facsimile signature of its Secretary or one of its Assistant Secretaries.
Dated: ____________________
[Seal] THE EQUITABLE COMPANIES
INCORPORATED
By: __________________
Attest: Name:
Title:
By: ____________________
Name:
Title:
By: __________________
Name:
Title:
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series described in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated: ____________________
By: ______________________
Authorized Signatory
- 4 -
<PAGE>
[FORM OF REVERSE OF DEBENTURE]
THE EQUITABLE COMPANIES INCORPORATED
____________% Junior Subordinated Debenture due ____________
This Debenture is one of the securities of the Company, all
issued or to be issued under an Indenture, dated as of _______________, duly
executed and delivered by the Company to ________________________, as Trustee
(hereinafter, the "Trustee", which term includes any successor trustee under
such Indenture), as supplemented by a First Supplemental Indenture, dated as of
_______________ (as so supplemented, the "Indenture"), duly executed and
delivered by the Company to the Trustee, to which Indenture, and all indentures
supplemental thereto reference is hereby made for a description of the
respective rights and duties thereunder of the Trustee, the Company and the
Holders of the Junior Subordinated Debentures. This Debenture is designated as
one of the _______% Junior Subordinated Debentures due 2024 (the "Junior
Subordinated Debentures"), limited in aggregate principal amount to
$__________________, and is issued pursuant to the Indenture.
Notwithstanding anything contained in the Indenture to the
contrary, so long as the Company is not then in default in the payment of any
interest on the Junior Subordinated Debentures, the Company shall have the right
at any time during the term of the Junior Subordinated Debentures, by notice
given prior to an Interest Payment Date as provided below, to extend the
interest payment period from time to time to another Interest Payment Date by
one or more _______ periods, not to exceed at any one time __ consecutive
_______ interest periods from the last Interest Payment Date to which interest
was paid in full (each, an "Extension Period"). Except as provided in the next
succeeding sentence, no interest shall be due and payable during an Extension
Period, but at the end of each Extension Period the Company shall pay to the
Holders of record on the Regular Record Date for such Interest Payment Date
(regardless of who the Holders of record may have been on other dates during the
Extension Period) all interest then accrued and unpaid on the Junior
Subordinated Debentures, together with interest thereon, compounded ___________
commencing on the first Interest Payment Date in such Extension Period, at the
rate specified for the Junior Subordinated Debentures to the extent permitted by
applicable law ("Compounded Interest"). Prior to the termination of any
Extension Period, the Company may pay all or any portion of the interest accrued
on the Junior
- 1 -
<PAGE>
Subordinated Debentures on any Interest Payment Date to Holders of record on the
Regular Record Date for such Interest Payment Date or from time to time further
extend the interest payment period, provided that any such Extension Period
together with all such previous and further extensions thereof may not exceed
________________ interest periods at any one time. If the Company shall elect to
pay all of the interest accrued on the Junior Subordinated Debentures on an
Interest Payment Date during an Extension Period, such Extension Period shall
automatically terminate on such Interest Payment Date. Upon the termination of
any Extension Period and the payment of all amounts of interest then due, the
Company may select a new Extension Period, subject to the above requirements.
So long as the Property Trustee is the legal owner and holder
of record of the Junior Subordinated Debentures, at the time the Company selects
an Extension Period, the Company shall give both the Property Trustee and the
Trustee written notice of its selection of such Extension Period one business
day prior to the earlier of (i) the next succeeding date on which distributions
on the Preferred Securities are payable or (ii) the date EQ Capital Trust [ ] is
required to give notice of the record date or the date such distributions are
payable to the New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Preferred Securities, but in any event not
less than one business day prior to such record date. The Company shall cause EQ
Capital Trust [ ] to give notice of the Company's selection of such Extension
Period to the holders of the Preferred Securities.
If as a result of the dissolution of EQ Capital Trust [ ]
Junior Subordinated Debentures have been distributed to holders of Preferred
Securities and Common Securities, at the time the Company selects an Extension
Period, the Company shall give the holders of the Junior Subordinated Debentures
and the Trustee written notice of its selection of such Extension Period at
least 10 Business Days prior to the earlier of (i) the next succeeding Interest
Payment Date or (ii) the date the Company is required to give notice of the
record or payment date of such interest payment to the New York Stock Exchange
or other applicable self-regulatory organization or to holders of the Junior
Subordinated Debentures.
- 2 -
<PAGE>
Except as provided in the next paragraph, Junior Subordinated
Debentures may not be redeemed by the Company [prior to ______________, 200__].
The Company shall have the right to redeem this Debenture for cash at the option
of the Company, without premium or penalty, in whole or in part, at any time [on
or after ________________, 200__], (an "Optional Redemption"), at a redemption
price equal to 100% of the principal amount plus any accrued and unpaid
interest, including Compounded Interest, if any, to the date of such redemption
(the "Optional Redemption Price"). Any redemption pursuant to this paragraph
will be made upon not less than 30 nor more than 60 days' notice, at the
Optional Redemption Price. If the Junior Subordinated Debentures are only
partially redeemed by the Company pursuant to an Optional Redemption, the Junior
Subordinated Debentures will be redeemed pro rata or by lot or by any other
method utilized by the Trustee, provided that to the extent at the time of
redemption, Junior Subordinated Debentures are registered as a Global Debenture,
the Trustee and the Depository shall determine by lot or other equitable method
the principal amount of such Junior Subordinated Debentures held by each Holder
to be redeemed in accordance with its customary procedures. Notwithstanding the
foregoing, if a partial redemption of the Junior Subordinated Debentures would
result in the delisting of the Preferred Securities by any national securities
exchange or other organization on which the Preferred Securities are then
listed, the Company shall not be permitted to effect such partial redemption and
will only redeem the Junior Subordinated Debentures in whole.
If, at any time, a Tax Event (as defined below) shall occur or be
continuing
- 3 -
<PAGE>
the Company shall have the right at any time, upon not less than 30 nor more
than 60 days' notice, to redeem the Junior Subordinated Debentures in whole or
in part for cash at the Optional Redemption Price within 90 days following the
occurrence of such Tax Event; provided, however, that, if at the time there is
available to the Company or the Regular Trustees on behalf of EQ Capital Trust
[ ] the opportunity to eliminate, within such 90 day period, the Tax Event by
taking some ministerial action such as filing a form or making an election, or
pursuing some other similar reasonable measure, which has no adverse effect on
EQ Capital Trust [ ], the Company or the holders of the Preferred Securities,
the Company or the Regular Trustees on behalf of EQ Capital Trust [ ] will
pursue such measure in lieu of redemption.
"Tax Event" means that the Company shall have obtained an opinion of
nationally recognized independent tax counsel experienced in such matters to the
effect that, as a result of (a) any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein, (b) any amendment to, or change in, an interpretation or application of
any such laws or regulations by any legislative body, court, governmental agency
or regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination), (c) any
interpretation or pronouncement that provides for a position with respect to
such laws or regulations that differs from the theretofore generally accepted
position or (d) any action taken by any governmental agency or regulatory
authority, which amendment or change is enacted, promulgated, issued or
announced or which interpretation or pronouncement is issued or announced or
which action is taken, in each case on or after the day before the date of
issuance of Preferred Securities under the Declaration, there is more than an
insubstantial risk (x) that the Trust is, or will be within 90 days of the date
thereof, subject to United States federal income tax with respect to income
received or accrued on the Junior Subordinated Debentures and that the Trust
would be subject to United States federal income tax if the Debentures were
distributed to the holders of the Securities in liquidation of such holders'
interests in the Trust pursuant to the exercise by the Company of its right to
dissolve the Trust, (y) that interest payable by the Company on the Junior
Subordinated Debentures is not, or within 90 days of the date thereof, will not
be, deductible, in whole or in part, for United States federal income tax
purposes, even if the Junior Subordinated Debentures were distributed to the
holders of the Preferred Securities and Common Securities of EQ Capital Trust
[ ] in liquidation of such holders' interests in the Trust pursuant to the
exercise by the Company of its right to dissolve EQ Capital Trust [ ]
or (z) that the EQ Capital Trust [ ] is, or will be within 90 days of the date
thereof, subject to more than a de minimis amount of other taxes, duties or
other governmental charges and that the EQ Capital Trust [ ] would be subject to
more than a de minimis amount of taxes, duties or other governmental charges if
the Junior Subordinated Debentures were distributed to the holders of the
Preferred Securities and Common Securities of EQ Capital Trust [ ] in
liquidation of such holders' interests in EQ Capital Trust [ ] pursuant to the
exercise by the Company of its right to dissolve the EQ Capital Trust [ ].
- 4 -
<PAGE>
The Indenture contains provisions for defeasance and covenant
defeasance at any time of the indebtedness evidenced by this Debenture upon
compliance by the Company with certain conditions set forth therein.
If an Event of Default shall have occurred and be continuing,
the principal hereof may be declared, and upon such declaration become, due and
payable, in the manner, with the effect and subject to the conditions provided
in the Indenture.
The indebtedness evidenced by the Junior Subordinated
Debentures is, to the extent and in the manner provided in the Indenture,
subordinate and subject in right of payment to the prior payment in full of
Senior Debt as defined in the Indenture and this Debenture is issued subject to
the provisions of the Indenture with respect thereto. Each Holder of this
Debenture, by accepting the same, agrees to and shall be bound by such
provisions and authorizes the Trustee in his behalf to take such action as may
be necessary or appropriate to effectuate the subordination so provided and
appoints the Trustee his attorney-in-fact for such purpose.
The Company and, by its acceptance of this Debenture or a
beneficial interest herein, the Holder of, and any Person that acquires a
beneficial interest in, this Debenture agree that for United States federal,
state and local tax purposes it is intended that this Debenture constitute
indebtedness.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount (calculated as provided in the Indenture) of the
outstanding
- 5 -
<PAGE>
Junior Subordinated Debentures to modify the Indenture or any supplemental
indenture with respect to the rights of the Holders of the Junior Subordinated
Debentures, provided that no such modification shall (i) extend the fixed
maturity of any Junior Subordinated Debenture, or reduce the principal thereof,
or reduce the rate or extend the time of payment of interest thereon without the
consent of the Holders of each such Junior Subordinated Debenture so affected,
(ii) modify the provisions of the Indenture with respect to the subordination of
the Junior Subordinated Debentures in a manner adverse to the Holders thereof,
or (iii) reduce the aforesaid percentage of Junior Subordinated Debentures the
consent of the Holders of which is required for any such modification without
the consent of the Holder of each such Junior Subordinated Debenture so
affected. Any such consent given by the Holder of this Debenture shall be
conclusive and binding upon such Holder and all future Holders of this Debenture
and of any Junior Subordinated Debenture issued on registration hereof, the
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, premium,
if any, and interest on this Debenture at the place, at the respective time, at
the rate and in the coin or currency herein prescribed.
This Debenture is issuable in registered form without coupons
and in denominations of $25 and any integral multiples of $25 in excess thereof.
This Debenture may be exchanged for a like aggregate principal amount of Junior
Subordinated Debentures of other authorized denominations in the manner and
subject to the limitations provided in the Indenture.
Upon due presentment for registration of transfer of this
Debenture, the Company shall execute and the Trustee shall authenticate and
deliver a new Junior Subordinated Debenture or Junior Subordinated Debentures of
like tenor and authorized denominations for an equal aggregate principal amount
in exchange herefor, subject to the limitations provided in the Indenture.
No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Debenture for registration of
transfer, the Company, the Trustee and any
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<PAGE>
agent of the Company or the Trustee may treat the person in whose name this
Debenture is registered as the owner hereof for all purposes (subject to the
provisions hereof with respect to determination of the person to whom interest
is payable).
All terms used in this Debenture which are defined in the
Indenture shall have the respective meanings assigned to them in the Indenture.
This Debenture shall be governed by and construed in
accordance with the laws of the State of New York.
- 7 -
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Principal amount of this
Principal amount of Global Debenture Principal Amount of
Certificated Debentures exchanged or transferred this Global Debenture
exchanged or transferred for a Certificated After Relevant
for an interest in this Debenture Exchange or Notation
Date Global Debenture --------- Transfer Made by
- ---- ---------------- -------- -------
<S> <C> <C> <C> <C>
- ----- --------------- ------------ ------------ -------
- ----- --------------- ------------ ------------ -------
- ----- --------------- ------------ ------------ -------
- ----- --------------- ------------ ------------ -------
- ----- --------------- ------------ ------------ -------
- ----- --------------- ------------ ------------ -------
- ----- --------------- ------------ ------------ -------
- ----- --------------- ------------ ------------ -------
- ----- --------------- ------------ ------------ -------
- ----- --------------- ------------ ------------ -------
- ----- --------------- ------------ ------------ -------
- ----- --------------- ------------ ------------ -------
- ----- --------------- ------------ ------------ -------
- ----- --------------- ------------ ------------ -------
</TABLE>
- 8 -
<PAGE>
ASSIGNMENT
(To be executed by the registered Holder
if such Holder desires to transfer this Debenture)
FOR VALUE RECEIVED _______________________________ hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
TAX IDENTIFYING NUMBER OF TRANSFEREE
- ------------------------------------
- --------------------------------------------------------------------------------
(Please print name and address of transferee)
- --------------------------------------------------------------------------------
this Debenture, together with all right, title and interest herein, and does
hereby irrevocably constitute and appoint
Attorney to transfer this Debenture on the securities register relating to this
Debenture, with full power of substitution.
Dated: ____________________________
Signature
----------------------------
Signature Guaranteed
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the [Registrar], which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the [Registrar] in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
NOTICE: The signature to the foregoing assignment must correspond to the name as
written upon the face of this Debenture in every particular, without alteration
or any change whatsoever.
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
THE EQUITABLE COMPANIES INCORPORATED
GUARANTEE AGREEMENT
Dated as of __________, 199_
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
SECTION 1.1 Definitions.................................................... 1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application ............................. 3
SECTION 2.2 Lists of Holders of Preferred
Securities............................................ 4
SECTION 2.3 Reports by the Guarantee Trustee.............................. 4
SECTION 2.4 Periodic Reports to Guarantee
Trustee............................................... 4
SECTION 2.5 Evidence of Compliance with
Conditions Precedent.................................. 4
SECTION 2.6 Events of Default; Waiver..................................... 4
SECTION 2.7 Disclosure of Information..................................... 5
SECTION 2.8 Conflicting Interest.......................................... 5
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee
Trustee............................................... 5
SECTION 3.2 Certain Rights and Duties of the
Guarantee Trustee..................................... 6
SECTION 3.3 Not Responsible for Recitals or
Issuance of Guarantee................................. 7
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Qualifications................................................ 8
SECTION 4.2 Appointment, Removal and Resignation
of Guarantee Trustee.................................. 8
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee..................................................... 9
SECTION 5.2 Waiver of Notice, etc......................................... 9
SECTION 5.3 Obligations Not Affected...................................... 9
SECTION 5.4 Enforcement of Guarantee...................................... 10
SECTION 5.5 Guarantee of Payment.......................................... 10
SECTION 5.6 Subrogation................................................... 10
SECTION 5.7 Independent Obligations....................................... 10
<PAGE>
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions.................................... 11
SECTION 6.2 Subordination................................................. 12
ARTICLE VII
TERMINATION
SECTION 7.1 Termination................................................... 12
ARTICLE VIII
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 8.1 Exculpation................................................... 12
SECTION 8.2 Indemnification............................................... 13
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns........................................ 13
SECTION 9.2 Amendments.................................................... 13
SECTION 9.3 Notices....................................................... 13
SECTION 9.4 Genders....................................................... 14
SECTION 9.5 Benefit....................................................... 14
SECTION 9.6 Governing Law................................................. 14
SECTION 9.7 Counterparts.................................................. 14
SECTION 9.8 Exercise of Overallotment Option.............................. 14
(ii)
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of __________, 199_, is executed and
delivered by The Equitable Companies Incorporated, a Delaware corporation (the
"Guarantor"), and The Bank of New York, a New York banking corporation, as the
initial Guarantee Trustee (as defined herein) for the benefit of the Holders (as
defined herein) from time to time of the Preferred Securities (as defined
herein) of EQ Capital Trust ___, a Delaware statutory business trust (the
"Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of ______________, 199_ among the trustees of the
Issuer named therein, The Equitable Companies Incorporated, as Sponsor, and the
Holders from time to time of undivided beneficial interests in the assets of the
Issuer, the Issuer may issue up to _______________ aggregate liquidation amount
of its _____% Preferred Trust Securities (the "Preferred Securities")
representing undivided beneficial interests in the assets of the Issuer and
having the terms set forth in Exhibit B to the Declaration, of which $_________
liquidation amount of Preferred Securities are being issued as of the date
hereof. Up to the remaining $______________ liquidation amount of Preferred
Securities may be issued by the Issuer if and to the extent that the
over-allotment option granted by the Guarantor and the Issuer pursuant to the
Underwriting Agreement (as defined in the Declaration) is exercised by the
Underwriters named in the Underwriting Agreement.
WHEREAS, as incentive for the Holders to purchase Preferred Securities, the
Guarantor desires to irrevocably and unconditionally agree, to the extent set
forth herein, to pay to the Holders of the Preferred Securities the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by the initial purchasers
thereof of Preferred Securities, which purchase the Guarantor hereby agrees
shall benefit the Guarantor, the Guarantor executes and delivers this Guarantee
Agreement for the benefit of the Holders from time to time of the Preferred
Securities.
ARTICLE I
SECTION 1.1 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
Section 1.1;
(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; and
(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
<PAGE>
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 assets of the Issuer, having the terms set forth in
Exhibit C to the Declaration.
"Covered Person" means any Holder of Preferred Securities.
"Debentures" means the series of Junior Subordinated Debentures issued
by the Guarantor under the Indenture to the Property Trustee and entitled the
"_____% Junior Subordinated Debentures due ____".
"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 Exhibit B to the Declaration.
"Event of Default" means a default by the Guarantor on any of its
payment obligations under this Guarantee Agreement or a failure by the Guarantor
to comply in any material respect with any of its other obligations under this
Guarantee Agreement and such non-compliance continues for a period of 30 days
after there has been given, by registered or certified mail, to the Guarantor by
the Guarantee Trustee a written notice specifying such non-compliance and
requiring it to be remedied.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Preferred Securities, to
the extent not paid or made by the Issuer: (i) any accrued and unpaid
Distributions and the redemption price, including all accrued and unpaid
Distributions to the date of redemption (the "Redemption Price"), with respect
to Preferred Securities called for redemption by the Issuer but only if and to
the extent that in each case the Guarantor has made a payment to the Property
Trustee of interest or principal on the Debentures and (ii) upon a voluntary or
involuntary dissolution, winding-up or termination of the Issuer (other than in
connection with the distribution of Debentures to Holders or the redemption of
all the Preferred Securities upon the maturity or redemption of the Debentures
as provided in the Declaration), the lesser of (a) the aggregate of the
liquidation amount and all accrued and unpaid Distributions on the Preferred
Securities to the date of payment, to the extent the Issuer has funds available
therefor, or (b) the amount of assets of the Issuer remaining available for
distribution to Holders in liquidation of the Issuer (in either case, the
"Liquidation Distribution").
"Guarantee Trustee" means The Bank of New York 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" shall mean any holder, as registered on the books and records
of the Issuer, of 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 the Guarantor or any entity directly or indirectly controlling
or controlled by or under direct or indirect common control with the Guarantor
unless any such entity holds such Preferred Securities on behalf of a third
party.
"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.
"Indenture" means the Junior Subordinated Indenture dated as of
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<PAGE>
___________________, 199_ between the Guarantor and The Bank of New York, as
trustee, as supplemented by the ____________________ Supplemental Indenture
thereto dated as of ___________199___, pursuant to which the Debentures are to
be issued.
"Majority in liquidation amount of the Preferred Securities" means,
except as otherwise required by the Trust Indenture Act, Holder(s) of
outstanding Preferred Securities voting together as a single class, who are the
record owners of Preferred Securities whose liquidation amount (being 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 liquidation amount of all
outstanding Preferred Securities.
"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 Securities" has the meaning set forth in the first
WHEREAS clause above.
"Property Trustee" means the Person acting as Property Trustee under
the Declaration.
"Redemption Price" means the amount payable on redemption of the
Preferred Securities in accordance with the terms of the Preferred 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 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.
"66-2/3% in liquidation amount of the Preferred Securities" means,
except as otherwise required by the Trust Indenture Act, Holder(s) of
outstanding Preferred Securities voting together as a single class, who are the
record owners of Preferred Securities whose liquidation amount (being 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 66-2/3% or more of the liquidation amount of all
Preferred Securities.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as a Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 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
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<PAGE>
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; and
(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 assets of the
Issuer.
SECTION 2.2 Lists of Holders of Preferred Securities.
(a) The Guarantor shall provide the Guarantee Trustee with such
information as is required under Section 312(a) of the Trust Indenture Act
[semiannually on or before the last day of June and December in each year and]
at such other times and in the manner provided in Section 312(a); and
(b) the Guarantee Trustee shall comply with its obligations under
Sections 310(b), 311 and 312(b) of the Trust Indenture Act.
SECTION 2.3 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 2.4 Periodic Reports to Guarantee Trustee.
The Guarantor 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 Issuer).
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to 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 2.6 Events of Default; Waiver.
(a) Subject to Section 2.6(b), Holders of Preferred Securities may by
vote of at least a Majority in liquidation 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 the Guarantee Trustee or (B) on behalf of the Holders of all
Preferred Securities waive any past Event of Default 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
- 4 -
<PAGE>
Guarantee Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default 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 2.7 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 2.8 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 3.1 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 the 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 5.4. The right, title and interest of the Guarantee Trustee to the
Guarantee Agreement shall vest automatically in each Person who may hereafter be
appointed as Guarantee Trustee in accordance with Article IV and upon such
vesting the right, title and interest of the transferring Guarantee Trustee to
the Guarantee Agreement shall cease. 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 occurs and is continuing, the Guarantee
Trustee shall enforce this Guarantee Agreement for the benefit of the Holders of
the 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 90 days after the occurrence
of an Event of Default, 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
- 5 -
<PAGE>
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 this 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 3.2 Certain Rights and Duties of the Guarantee Trustee.
(a) The Guarantee Trustee, before the occurrence of an Event of
Default and after the curing or waiving 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
2.6(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 the 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 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 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
- 6 -
<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 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 Guarantee Agreement or
adequate indemnity against such risk or liability is not reasonably assured
to it.
(c) Subject to the provisions of Section 3.2(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 the
Guarantor;
(ii) the Guarantee Trustee (A) may consult with counsel (which may be
counsel to the Guarantor 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, 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 the 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 3.3 Not Responsible for Recitals or Issuance of Guarantee.
The recitals contained in this Guarantee shall be taken as the
statements of the Guarantor and the Guarantee Trustee does not assume any
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<PAGE>
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 4.1 Qualifications.
There shall at all times be a Guarantee Trustee which shall:
(a) not be an Affiliate of the Guarantor; and
(b) 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 4.1(a), 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 (a)and (b) above, the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2. 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
the Guarantor shall in all respects comply with the provisions of Section 310(b)
of the Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed in accordance with Section
4.2(a) until a Successor Guarantee Trustee possessing the qualifications to
act as Guarantee Trustee under Section 4.1(a) has been appointed and has
accepted such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the Guarantee Trustee
being removed.
(c) The Guarantee Trustee appointed to office shall hold office until his
successor shall have been appointed and shall have accepted such
appointment 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 the Guarantor,
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 4.1(a) has been appointed and has accepted such appointment by
instrument executed by such Successor Guarantee Trustee and delivered to
Guarantor and the resigning Guarantee Trustee.
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<PAGE>
(e) If no Successor Guarantee Trustee shall have been appointed and accepted
appointment as provided in this Section 4.2 within 60 days after (i)
delivery to the Guarantor of a Resignation Request or (ii) removal pursuant
to Section 4.2(a) hereof, 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 5.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer) regardless of any defense, right of set-off or counterclaim
which the Issuer may have or assert. The Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Guarantor to the Holders or by causing the Issuer to pay such amounts to the
Holders.
SECTION 5.2 Waiver of Notice, etc.
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Issuer
or any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
SECTION 5.3 Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
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 Issuer of any express or implied
agreement, covenant, term or condition relating to the Preferred Securities
to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions (other than an extension of time for payment
of Distributions that results from the extension of any interest payment
period on the Debentures), Redemption Price, Liquidation Distribution (as
defined in the Declaration) or any other sums payable under the terms of
the 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 Issuer 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 Issuer
or any of the assets of the Issuer;
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<PAGE>
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation Guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the
intent of this Section 5.3 that the obligations of the Guarantor 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, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Enforcement of Guarantee.
The Guarantor 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 liquidation 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
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) if the Guarantee Trustee fails to enforce this Guarantee
Agreement, any Holder of Preferred Securities may institute a legal proceeding
directly against the Guarantor to enforce its rights under this Guarantee
Agreement, without first instituting a legal proceeding against the Issuer, the
Guarantee Trustee, or any other Person.
SECTION 5.5 Guarantee of Payment.
This Guarantee Agreement creates 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 Issuer).
SECTION 5.6 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the
Holders against the Issuer in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement; provided, however, that the Guarantor
shall not (except to the extent required by mandatory provisions of law) be
entitled to enforce or 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 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 the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
SECTION 5.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities and that the Guarantor shall be liable as principal and as 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 5.3 hereof.
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ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions.
The Guarantor covenants and agrees that, the Guarantor will not declare or
pay any dividends on, or redeem, purchase, acquire or make any distribution,
liquidation or guarantee payment with respect to its capital stock, if at any
time (i) it shall have failed to make any payment of interest, principal or
premium on the Debentures when due (after giving effect to any grace period for
payment thereof as provided in Section 5.1 of the Indenture), (ii) the Guarantor
shall have given notice of its election to defer payments of interest on the
Debentures held by the Issuer as trust assets by extending the interest payment
period as provided in the terms of the Debentures and such period, or any
extension thereof, is continuing, or (iii) the Guarantor shall be in default
with respect to its Guarantee Payments hereunder; provided, that the Guarantor
may (A) make redemptions, purchases, retirements, acquisitions or distributions
in shares of capital stock of the Guarantor or redemptions, purchases or
acquisitions of shares of Common Stock of the Guarantor, par value $.01 per
share (the "Common Stock"), for purposes of any employee benefit plan or program
of the Guarantor or any Subsidiary and (B) pay accrued dividends (and cash in
lieu of fractional shares) upon the conversion of any preferred stock of the
Company as may be outstanding from time to time, in accordance with the terms of
such stock. The term "capital stock" shall include the Company's Common Stock
and any issue of preferred stock from time to time outstanding but shall not
include any indebtedness of any kind, whether or not convertible or exchangeable
for shares of Common Stock or preferred stock. In addition, so long as any
Preferred Securities remain outstanding, the Guarantor (i) will remain the sole
direct or indirect owner of all of the outstanding Common Securities and shall
not cause or permit the Common Securities to be transferred except to the extent
such transfer is permitted
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<PAGE>
under Section 9.1(c) of the Declaration; provided that any permitted successor
of the Guarantor under the Indenture may succeed to the Guarantor's ownership of
the Common Securities and (ii) will use reasonable efforts to cause the Issuer
to continue to be treated as a grantor trust for United States federal income
tax purposes except in connection with a distribution of Debentures as provided
in the Declaration.
SECTION 6.2 Subordination.
This Guarantee Agreement will constitute an unsecured obligation of
the Guarantor and will rank (i) pari passu with the Debentures, and (ii) senior
to all capital stock now or hereafter issued by the Guarantor and to any
Guarantee now or hereafter entered into by the Guarantor in respect of any of
its capital stock. The Guarantor'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 provide
for comparable Guarantees by the Guarantor of payment on preferred securities
issued by other EQ Capital Trusts (as such term is defined in the Indenture).
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.
This Guarantee Agreement shall terminate and be of no further force
and effect upon full payment of the Redemption Price of all Preferred
Securities, or upon the distribution of Debentures to Holders of Preferred
Securities and Common Securities in exchange for all of the Preferred Securities
and Common Securities, or upon full payment of the amounts payable in accordance
with the Declaration upon liquidation of the Issuer. Notwithstanding the
foregoing, this Guarantee Agreement will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must restore payment
of any sums paid with respect to the Preferred Securities or this Guarantee
Agreement.
ARTICLE VIII
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 8.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor 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 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 Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor 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 Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets,
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<PAGE>
liabilities, profits, losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders of Preferred Securities
might properly be paid.
SECTION 8.2 Indemnification.
(a) To the fullest extent permitted by applicable law, the Guarantor
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 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
Guarantor prior to the final disposition of such claim, demand, action, suit or
proceeding upon receipt by the Guarantor 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
8.2(a).
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.
All guarantees and agreements contained in this Guarantee
Agreement shall bind the successors, assignees, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding. Except in connection with a
consolidation, merger or sale involving the Guarantor that is permitted under
Article Ten of the Indenture, the Guarantor shall not assign its obligations
hereunder.
SECTION 9.2 Amendments.
Except with respect to any changes which do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Guarantee Agreement may only be amended with the prior approval of the Holders
of not less than 66-2/3% in liquidation amount of the Preferred Securities. The
provisions of Section 12.2 of the Declaration concerning meetings of Holders
shall apply to the giving of such approval.
SECTION 9.3 Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below or such
other address as the Guarantor may give notice of to the Holders:
The Equitable Companies Incorporated
1290 Avenue of the Americas
New York, New York 10104
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<PAGE>
Facsimile No.: (212) 314-4530
Attention: General Counsel
(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:
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Facsimile No.: 212-815-5915
Attention: Corp. Trust Administration
(c) if given to any Holder of Preferred Securities, at the address set
forth on the books and records of the Issuer.
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 9.4 Genders.
The masculine, feminine and neuter genders used herein shall include
the masculine, feminine and neuter genders.
SECTION 9.5 Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and
subject to Section 3.1(a) is not separately transferable from the Preferred
Securities.
SECTION 9.6 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 9.7 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 9.8 Exercise of Overallotment Option.
If and to the extent that Preferred Securities are issued by the
Issuer upon exercise of the overallotment option referred to in the first
WHEREAS clause, the Guarantor agrees to give prompt notice thereof to the
Guarantee Trustee but the failure to give such notice shall not relieve the
Guarantor of any of its obligations hereunder.
THIS GUARANTEE AGREEMENT is executed as of the day and year first
above written.
THE EQUITABLE COMPANIES INCORPORATED,
as Guarantor
By: ______________________________
Name:
Title:
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<PAGE>
THE BANK OF NEW YORK,
As Guarantee Trustee
By: _______________________________
Name:
Title:
- 15 -
<PAGE>
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this _______ day of ________,
199_, personally appeared _______________ of The Equitable Companies
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 person 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:_____________
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this _____________day of
________, 199_, personally appeared _______________ of [____________________],
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 person 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:_____________
57993
DEBEVOISE & PLIMPTON
875 THIRD AVENUE
NEW YORK, NY 10022
(212) 909-6000
January 29, 1998
The Equitable Companies Equitable Capital Trust III
Incorporated 1290 Avenue of the Americas
1290 Avenue of the Americas New York, New York 10104
New York, New York 10104
Equitable Capital Trust I Equitable Capital Trust IV
1290 Avenue of the Americas 1290 Avenue of the Americas
New York, New York 10104 New York, New York 10104
Equitable Capital Trust II
1290 Avenue of the Americas
New York, New York 10104
The Equitable Companies Incorporated
Equitable Capital Trust I
Equitable Capital Trust II
Equitable Capital Trust III
Equitable Capital Trust IV
Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
20512262.02
<PAGE>
The Equitable Companies
Incorporated
Equitable Capital Trust I
Equitable Capital Trust II
Equitable Capital Trust III
Equitable Capital Trust IV 2 January 29, 1998
We have acted as special counsel to The Equitable Companies
Incorporated, a Delaware corporation ("Equitable"), and Equitable Capital Trust
I, Equitable Capital Trust II, Equitable Capital Trust III and Equitable Capital
Trust IV, each a statutory business trust organized under the laws of the State
of Delaware (each, an "Equitable Capital Trust"), in connection with the
preparation and filing with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "1933 Act"), of
a Registration Statement on Form S-3 (the "Registration Statement"), including a
preliminary prospectus (the "Base Prospectus") relating to the public offering
of up to $1,000,000,000 in aggregate principal amount of (i) debt securities of
Equitable, which may either be senior debt securities (the "Senior Debt
Securities") to be issued pursuant to a Senior Indenture (the "Senior
Indenture") between Equitable and The Chase Manhattan Bank, formerly known as
Chemical Bank, as trustee (the "Senior Trustee") or subordinated debt securities
("Subordinated Debt Securities") to be issued pursuant to a Subordinated
Indenture (the "Subordinated Indenture") between Equitable and State Street Bank
and Trust Company, as successor to Shawmut Bank Connecticut, National
Association, as trustee (the "Subordinated Trustee"), (ii) such indeterminate
number of shares of common stock of Equitable, par value $0.01 per share (the
"Common Stock"), as may be issuable in exchange for or upon conversion of any
Senior Debt Security or Subordinated Debt Security that provides for conversion
or exchange into Common Stock or (iii) preferred securities representing
preferred undivided beneficial interests in the assets of the Equitable Capital
Trusts (the "Preferred Securities"). The proceeds of an offering of Preferred
Securities by an Equitable Capital Trust (together with the proceeds from the
issuance of common interests in such
20512262.02
<PAGE>
The Equitable Companies
Incorporated
Equitable Capital Trust I
Equitable Capital Trust II
Equitable Capital Trust III
Equitable Capital Trust IV 3 January 29, 1998
Equitable Capital Trust) will be loaned by such Equitable Capital Trust to
Equitable and such loan will be evidenced by junior subordinated debt
securities, to be issued pursuant to supplemental indentures to a Junior
Subordinated Indenture between Equitable and The Bank of New York, as Trustee
(the "Junior Subordinated Indenture"). In addition, certain payment obligations
of the respective Equitable Capital Trusts with respect to the Preferred
Securities of such Equitable Capital Trust will be guaranteed (on a subordinated
basis) by Equitable pursuant to a Preferred Securities Guarantee (each, a
"Guarantee", and collectively, the "Guarantees") to be executed by Equitable for
the benefit of holders of Preferred Securities of such Equitable Capital Trust.
In so acting, we have examined and relied upon the originals,
or copies certified or otherwise identified to our satisfaction, of such
records, documents, certificates and other instruments as in our judgment are
necessary or appropriate to enable us to render the opinion expressed below.
Based upon the foregoing, we are of the following opinion:
1. Equitable is validly existing as a corporation in good
standing under the laws of the State of Delaware.
2. When (i) the issuance, execution and delivery of (a)
supplemental indentures ("Senior Supplemental Indentures") to the
Senior Indenture and (b) the Senior Debt Securities have been duly
authorized by all necessary corporate action of Equitable and (ii) a
20512262.02
<PAGE>
The Equitable Companies
Incorporated
Equitable Capital Trust I
Equitable Capital Trust II
Equitable Capital Trust III
Equitable Capital Trust IV 4 January 29, 1998
Senior Supplemental Indenture has been duly executed and delivered by
Equitable and the Senior Trustee and Senior Debt Securities have been
duly executed, authenticated, issued, delivered and paid for as
contemplated by the Registration Statement, the Base Prospectus and any
prospectus supplement relating thereto and in accordance with the
Senior Indenture and such Senior Supplemental Indenture, assuming the
terms of such Senior Debt Securities are in compliance with then
applicable law, the Senior Debt Securities will be validly issued and
will constitute valid and binding obligations of Equitable enforceable
against Equitable in accordance with their terms, except as may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws of general applicability relating to or
affecting the rights of creditors and to general principles of equity
(whether considered in a proceeding at law or in equity).
3. When (i) the issuance, execution and delivery of (a)
supplemental indentures ("Subordinated Supplemental Indentures") to the
Subordinated Indenture and (b) Subordinated Debt Securities have been
duly authorized by all necessary corporate action of Equitable, and
(ii) a Subordinated Supplemental Indenture has been duly executed and
delivered by Equitable and the Subordinated Trustee and the
Subordinated Debt Securities have been duly executed, authenticated,
issued, delivered and paid for as contemplated by the Registration
Statement, the Base Prospectus and any prospectus supplement relating
thereto and in accordance with the Subordinated Indenture and such
Subordinated Supplemental Indenture, assuming the terms of such
Subordinated Debt Securities
20512262.02
<PAGE>
The Equitable Companies
Incorporated
Equitable Capital Trust I
Equitable Capital Trust II
Equitable Capital Trust III
Equitable Capital Trust IV 5 January 29, 1998
are in compliance with then applicable law, the Subordinated Debt
Securities will be validly issued and will constitute valid and binding
obligations of Equitable enforceable against Equitable in accordance
with their terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws of general
applicability relating to or affecting the rights of creditors and to
general principles of equity (whether considered in a proceeding at law
or in equity).
4. If the Senior Debt Securities or the Subordinated Debt
Securities are exchangeable or convertible into Common Stock, when (i)
the terms of the issuance of the Common Stock shall have been duly
authorized by all necessary corporate action of Equitable and (ii) the
shares of Common Stock shall have been issued in exchange for or upon
conversion of such Senior Debt Securities or Subordinated Debt
Securities as contemplated by the Registration Statement, the Base
Prospectus and any prospectus supplement relating to such Senior Debt
Securities or Subordinated Debt Securities, in accordance with the
terms of the Senior Debt Securities or Subordinated Debt Securities and
the applicable Senior Supplemental Indenture or Subordinated
Supplemental Indenture, as the case may be, assuming that Equitable has
reserved for issuance the requisite number of shares of Common Stock,
the shares of Common Stock so issued will be duly authorized, validly
issued, fully paid and nonassessable.
5. When (i) the execution and delivery of any Guarantee shall
have been duly authorized by all
20512262.02
<PAGE>
The Equitable Companies
Incorporated
Equitable Capital Trust I
Equitable Capital Trust II
Equitable Capital Trust III
Equitable Capital Trust IV 6 January 29, 1998
necessary corporate action of Equitable, (ii) such Guarantee shall have
been duly executed and delivered by Equitable, (iii) the Preferred
Securities to which such Guarantee relates have been duly issued and
sold and the purchase price therefor has been received by the
respective Equitable Capital Trust and (iv) the Guarantee shall have
been qualified under the Trust Indenture Act of 1939, as amended, such
Guarantee will constitute a valid and legally binding obligation of
Equitable, enforceable against Equitable in accordance with its terms,
except as may be limited by applicable bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting the rights of creditors generally and to general principles
of equity (whether considered in a proceeding in equity or at law).
We note that, as of the date of this opinion, a judgment for
money in an action based on a debt security denominated in a foreign currency,
currency unit or composite currency in a federal or state court in the United
States ordinarily would be enforced in the United States only in United States
dollars. The date used to determine the rate of conversion of the foreign
currency, currency unit or composite currency in which a particular debt
security is denominated into United States dollars will depend upon various
factors, including which court renders the judgment. In the case of a debt
security denominated in a foreign currency, a state court in the State of New
York rendering a judgment on such debt security would be required under Section
27 of the New York Judiciary Law to render such judgment in the foreign currency
in which the debt security is denominated, and such judgment would be
20512262.02
<PAGE>
The Equitable Companies
Incorporated
Equitable Capital Trust I
Equitable Capital Trust II
Equitable Capital Trust III
Equitable Capital Trust IV 7 January 29, 1998
converted into United States dollars at the exchange rate prevailing on the date
of entry of the judgment.
Our opinion expressed above is limited to the laws of the
State of New York, the Delaware General Corporation Law, and the federal laws of
the United States of America.
We hereby consent to the filing of this opinion as an Exhibit
to the Registration Statement and to the use of our name under the caption
"Legal Matters" in the Base Prospectus. In giving such consent, we do not
thereby concede that we are within the category of persons whose consent is
required under Section 7 of the 1933 Act or the Rules and Regulations of the
Commission thereunder.
Very truly yours,
/s/ Debevoise & Plimpton
20512262.02
Richards, Layton & Finger
A Professional Association
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
January 27, 1998
The Equitable Companies Incorporated
EQ Capital Trust I
EQ Capital Trust II
EQ Capital Trust III
EQ Capital Trust IV
c/o The Equitable Companies Incorporated
1290 Avenue of the Americas
New York, New York 10104
Re: EQ Capital Trust 1, EQ Capital Trust II, EQ Capital Trust III
and EQ Capital Trust IV
-------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for The Equitable Companies
Incorporated, a Delaware corporation (the "Company"), EQ Capital Trust I, a
Delaware business trust ("Trust I"), EQ Capital Trust II, a Delaware business
trust ("Trust II"), EQ Capital Trust III, a Delaware business trust ("Trust
III"), and EQ Capital Trust IV, a Delaware business trust ("Trust IV") (Trust I,
Trust II, Trust III and Trust IV are hereinafter collectively referred to as the
"Trusts" and sometimes hereinafter individually referred to as a "Trust"), in
connection with the matters set forth herein. At your request, this opinion
is being furnished to you.
For the purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of Trust I, as filed with the office of
the Secretary of State of the State of Delaware (the "Secretary of State") on
January 16, 1998;
(b) The Certificate of Trust of Trust II, as filed with the Secretary
of State on January 16, 1998;
RLF2-729610-1
<PAGE>
The Equitable Companies Incorporated
EQ Capital Trust I
EQ Capital Trust II
EQ Capital Trust III
EQ Capital Trust IV
January 27, 1998
Page 2
(c) The Certificate of Trust of Trust III, as filed with the
Secretary of State on January 16, 1998;
(d) The Certificate of Trust of Trust IV, as filed with the
Secretary of State on January 16, 1998;
(e) The Declaration of Trust of Trust I, dated as of January 14,
1998 among the Company and the trustees of Trust I named therein;
(f) The Declaration of Trust of Trust II, dated as of January 14,
1998 among the Company and the trustees of Trust II named therein;
(g) The Declaration of Trust of Trust III, dated as of January 14,
1998 among the Company and the trustees of Trust III named therein;
(h) The Declaration of Trust of Trust IV, dated as of January 14,
1998 among the Company and the trustees of Trust IV named therein;
(i) The Registration Statement (the "Registration Statement") on Form
S-3, including a preliminary prospectus respect to the Trusts (the
"Prospectus"), relating to the Preferred Securities of the Trusts representing
preferred undivided beneficial interests in the assets of the Trusts (each, a
"Preferred Security" and collectively, the "Preferred Securities"), to be filed
by the Company and the Trusts with the Securities and Exchange Commission on
February 2, 1998;
(j) A form of Amended and Restated Declaration of Trust for each of
the Trusts, to be entered into between the Company, the trustees of the Trust
named therein, and the holders, from time to time, of the undivided beneficial
interests in the assets of such Trust (including Exhibits A and B thereto)
(collectively, the "Declarations" and individually, a "Declaration"), attached
as an exhibit to the Registration Statement; and
(k) A Certificate of Good Standing for each of the Trusts, dated
January 27, 1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Declarations.
RLF2-729610-1
<PAGE>
The Equitable Companies Incorporated
EQ Capital Trust I
EQ Capital Trust II
EQ Capital Trust III
EQ Capital Trust IV
January 27, 1998
Page 3
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (k) above. In particular, we
have not reviewed any document (other than the documents listed in paragraphs
(a) through (i) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our own
but rather have relied solely upon the foregoing documents, the statements and
information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that each of the
Declarations will constitute the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the applicable Trust, and that the Declarations and
the Certificates of Trust will be in full force and effect and will not be
amended, (ii) except to the extent provided in paragraph 1 below, the due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its organization or formation, (iii) the legal capacity
of natural persons who are parties to the documents examined by us, (iv) that
each of the parties to the documents examined by us has the power and authority
to execute and deliver, and to perform its obligations under, such documents,
(v) the due authorization, execution and delivery by all parties thereto of all
documents examined by us, (vi) the receipt by each Person to whom a Preferred
Security Certificate is to be issued by the Trusts (collectively, the "Preferred
Security Holders") of a Preferred Security Certificate for such Preferred
Security and the payment for such Preferred Security in accordance with the
Declarations and the Registration Statement and (vii) that the Preferred
Securities are authenticated, issued and sold to the Preferred Security Holders
in accordance with the Declarations and the Registration Statement. We have not
participated in the preparation of the Registration Statement or the Prospectus
and assume no responsibility for their contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating
RLF2-729610-1
<PAGE>
The Equitable Companies Incorporated
EQ Capital Trust I
EQ Capital Trust II
EQ Capital Trust III
EQ Capital Trust IV
January 27, 1998
Page 4
thereto. Our opinions are rendered only with respect to Delaware laws and
rules, regulations and orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary
or appropriate, and subject to the assumptions, qualifications, limitations
and exceptions set forth herein, we are of the opinion that:
1. Each of the Trusts has been duly created and is validly existing
in good standing as a business trust under the Business Trust Act.
2. The Preferred Securities of each Trust will represent valid and,
subject to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the applicable
Trust.
3. The Preferred Security Holders, as beneficial owners of the
applicable Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. We note that the Preferred
Security Holders may be obligated to make payments as set forth in the
Declaration.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. We hereby
consent to the use of our name under the heading "Legal Matters" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
----------------------------------
EAM
RLF2-729610-1
THE EQUITABLE COMPANIES INCORPORATED EXHIBIT 12.1
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
AND
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
<TABLE>
<CAPTION>
NINE MONTHS
1992 1993 1994 1995 1996 1997
----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS FROM CONTINUING OPERATIONS BEFORE FEDERAL
INCOME TAXES, MINORITY INTEREST AND CUMULATIVE
EFFECT OF ACCOUNTING CHANGE 9.2 376.3 546.6 645.2 515.8 1,066.8
EXCESS OF EQUITY IN INCOME OF UNCONSOLIDATED
INVESTEES OVER DISTRIBUTED INCOME (0.2) 57.4 92.4 44.4 15.7 (18.4)
EQUITY IN LOSSES OF UNCONSOLIDATED INVESTEES 52.8 29.8 45.7 16.7 16.6 25.0
----------------------------------------------------------------------------
EARNINGS BEFORE FIXED CHARGES 61.8 463.5 684.7 706.3 548.1 1,073.4
----------------------------------------------------------------------------
FIXED CHARGES:
INTEREST EXPENSE ON LONG AND SHORT-TERM DEBT 1,273.2 1,558.4 2,275.9 2,905.7 3,092.0 2,911.0
INTEREST FACTOR IN RENTAL EXPENSE 71.2 54.9 52.8 55.7 61.8 46.4
----------------------------------------------------------------------------
TOTAL FIXED CHARGES 1,344.4 1,613.3 2,328.7 2,961.4 3,153.8 2,957.4
----------------------------------------------------------------------------
TOTAL EARNINGS AND FIXED CHARGES 1,406.2 2,076.8 3,013.4 3,667.7 3,701.9 4,030.8
============================================================================
RATIO OF EARNINGS TO FIXED CHARGES 1.046 1.287 1.294 1.239 1.174 1.363
============================================================================
TOTAL OF FIXED CHARGES 1,344.4 1,613.3 2,328.7 2,961.4 3,153.8 2,957.4
PREFERRED DIVIDEND REQUIREMENTS 22.0 100.6 123.2 41.1 41.1 24.0
----------------------------------------------------------------------------
TOTAL COMBINED FIXED CHARGES AND PREFERRED
DIVIDENDS 1,366.4 1,713.9 2,451.9 3,002.5 3,194.9 2,981.4
----------------------------------------------------------------------------
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED DIVIDENDS 1.029 1.212 1.229 1.222 1.159 1.352
============================================================================
</TABLE>
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated February 10, 1997 which appears on page F-1 of The Equitable Companies
Incorporated's Annual Report on Form 10-K for the year ended December 31, 1996.
We also consent to the incorporation by reference of our report on the
Consolidated Financial Statement Schedules dated February 10, 1997 which
appears on page F-57 of such Annual Report on Form 10-K. We also consent to the
reference to us under the heading "Experts" in this Prospectus.
Price Waterhouse LLP
New York, New York
February 2, 1998
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
THE EQUITABLE COMPANIES INCORPORATED
EQ CAPITAL TRUST I
EQ CAPITAL TRUST II
EQ CAPITAL TRUST III
EQ CAPITAL TRUST IV
(Exact name of obligor as specified in its charter)
DELAWARE 13-3623351
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1290 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10104
(Address of principal executive offices) (Zip Code)
---------------------------------------------
SENIOR DEBT SECURITIES
(Title of the indenture securities)
-------------------------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, Suite 2310, 5 Empire State
Plaza, Albany, New York 12223. Board of Governors of the Federal
Reserve System 20th and C Street NW, Washington, D.C., 20551.
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y. 10045.
Federal Deposit Insurance Corporation, 550 Seventeenth Street NW
Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 16th day of January, 1998.
THE CHASE MANHATTAN BANK
By /s/ W.B. Dodge
--------------------------
W.B. Dodge
Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1997, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin .................................................$ 11,760
Interest-bearing balances ......................................... 4,343
Securities: ...........................................................
Held to maturity securities.........................................2,704
Available for sale securities........................................... 37,885
Federal funds sold and securities purchased under
agreements to resell .............................................. 27,358
Loans and lease financing receivables:
Loans and leases, net of unearned income....... $127,370
Less: Allowance for loan and lease losses...... 2,760
Less: Allocated transfer risk reserve ......... 13
--------
Loans and leases, net of unearned income,
allowance, and reserve ............................................ 124,597
Trading Assets ......................................................... 64,630
Premises and fixed assets (including capitalized
leases)............................................................ 2,925
Other real estate owned ................................................ 286
Investments in unconsolidated subsidiaries and
associated companies............................................... 232
Customers' liability to this bank on acceptances
outstanding ....................................................... 2,212
Intangible assets ...................................................... 1,480
Other assets ........................................................... 11,117
--------
TOTAL ASSETS ...........................................................$291,529
========
- 4 -
<PAGE>
LIABILITIES
Deposits
In domestic offices ...............................................$ 86,574
Noninterest-bearing .................................... $31,818
Interest-bearing ....................................... 54,756
-------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's ......................................................... 69,887
Noninterest-bearing..................................... $ 3,777
Interest-bearing ....................................... 66,110
Federal funds purchased and securities sold under agree-
ments to repurchase .................................................... 45,307
Demand notes issued to the U.S. Treasury ............................... 161
Trading liabilities .................................................... 47,406
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ..................... 4,578
With a remaining maturity of more than one year
through three years............................................ 261
With a remaining maturity of more than three years...............131
Bank's liability on acceptances executed and outstanding................ 2,212
Subordinated notes and debentures ...................................... 5,715
Other liabilities ...................................................... 12,355
TOTAL LIABILITIES ...................................................... 274,587
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus........................... 0
Common stock ........................................................... 1,211
Surplus (exclude all surplus related to preferred stock)............... 10,294
Undivided profits and capital reserves ................................. 5,414
Net unrealized holding gains (losses)
on available-for-sale securities ....................................... 7
Cumulative foreign currency translation adjustments .................... 16
TOTAL EQUITY CAPITAL ................................................... 16,942
--------
TOTAL LIABILITIES AND EQUITY CAPITAL ...................................$291,529
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
---------
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2) __
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
MASSACHUSETTS 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
JOHN R. TOWERS, ESQ. EXECUTIVE ASSISTANT VICE PRESIDENT AND GENERAL COUNSEL
225 FRANKLIN STREET, BOSTON, MASSACHUSETTS 02110
(617) 654-3253
(Name, address and telephone number of agent for service)
---------------------
THE EQUITABLE COMPANIES INCORPORATED
(Exact name of obligor as specified in its charter)
DELAWARE 13-3623351
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1290 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10104
(Address of principal executive offices) (Zip Code)
--------------------
SUBORDINATED DEBT SECURITIES
(Title of indenture securities)
<PAGE>
GENERAL
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY AUTHORITY TO
WHICH IT IS SUBJECT.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System, Washington,
D.C., Federal Deposit Insurance Corporation, Washington, D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee or of its
parent, State Street Boston Corporation.
(See note on page 2.)
ITEM 3. THROUGH ITEM 15. NOT APPLICABLE.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF ELIGIBILITY.
1. A COPY OF THE ARTICLES OF ASSOCIATION OF THE TRUSTEE AS NOW IN
EFFECT.
A copy of the Articles of Association of the trustee, as now
in effect, is on file with the Securities and Exchange
Commission as Exhibit 1 to Amendment No. 1 to the Statement
of Eligibility and Qualification of Trustee (Form T-1) filed
with the Registration Statement of Morse Shoe, Inc. (File No.
22-17940) and is incorporated herein by reference thereto.
2. A COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE
BUSINESS, IF NOT CONTAINED IN THE ARTICLES OF ASSOCIATION.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the
trustee to commence business was necessary or issued is on
file with the Securities and Exchange Commission as Exhibit 2
to Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File No.
22-17940) and is incorporated herein by reference thereto.
3. A COPY OF THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE
TRUST POWERS, IF SUCH AUTHORIZATION IS NOT CONTAINED IN THE DOCUMENTS
SPECIFIED IN PARAGRAPH (1) OR (2), ABOVE.
A copy of the authorization of the trustee to exercise
corporate trust powers is on file with the Securities and
Exchange Commission as Exhibit 3 to Amendment No. 1 to the
Statement of Eligibility and Qualification of Trustee (Form
T-1) filed with the Registration Statement of Morse Shoe,
Inc. (File No. 22-17940) and is incorporated herein by
reference thereto.
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE, OR INSTRUMENTS
CORRESPONDING THERETO.
A copy of the by-laws of the trustee, as now in effect, is on
file with the Securities and Exchange Commission as Exhibit 4
to the Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with the Registration Statement of Eastern
Edison Company (File No. 33-37823) and is incorporated herein
by reference thereto.
1
<PAGE>
5. A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4. IF THE OBLIGOR IS IN
DEFAULT.
Not applicable.
6. THE CONSENTS OF UNITED STATES INSTITUTIONAL TRUSTEES REQUIRED BY
SECTION 321(B) OF THE ACT.
The consent of the trustee required by Section 321(b) of the
Act is annexed hereto as Exhibit 6 and made a part hereof.
7. A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE PUBLISHED
PURSUANT TO LAW OR THE REQUIREMENTS OF ITS SUPERVISING OR EXAMINING
AUTHORITY.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority is annexed hereto as
Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates to
matters peculiarly within the knowledge of the obligor or any underwriter for
the obligor, the trustee has relied upon information furnished to it by the
obligor and the underwriters, and the trustee disclaims responsibility for the
accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 20th day of January, 1998.
STATE STREET BANK AND TRUST COMPANY
By: /S/ Jacqueline Connor
--------------------------------
Jacqueline Connor
Assistant Vice President
2
<PAGE>
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended, in connection with the proposed issuance by The
Equitable Companies Incorporated of its Subordinated Debt Securities, we hereby
consent that reports of examination by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /S/ Jacqueline Connor
--------------------------------
Jacqueline Connor
Assistant Vice President
Dated: January 20, 1998
3
<PAGE>
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company,
Massachusetts and foreign and domestic subsidiaries, a state banking institution
organized and operating under the banking laws of this commonwealth and a member
of the Federal Reserve System, at the close of business June 30, 1997, published
in accordance with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act and in accordance with a
call made by the Commissioner of Banks under General Laws, Chapter 172, Section
22(a).
<TABLE>
<CAPTION>
Thousands of
ASSETS Dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ......................................... 1,842,337
Interest-bearing balances .................................................................. 8,771,397
Securities .......................................................................................... 10,596,119
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary ........................................................ 5,953,036
Loans and lease financing receivables:
Loans and leases, net of unearned income ............ 5,769,090
Allowance for loan and lease losses ................. 74,031
Allocated transfer risk reserve...................... 0
Loans and leases, net of unearned income and allowances .................................... 5,695,059
Assets held in trading accounts ..................................................................... 916,608
Premises and fixed assets ........................................................................... 374,999
Other real estate owned ............................................................................. 755
Investments in unconsolidated subsidiaries .......................................................... 28,992
Customers' liability to this bank on acceptances outstanding ........................................ 99,209
Intangible assets ................................................................................... 229,412
Other assets ........................................................................................ 1,589,526
------------
Total assets ........................................................................................ 36,097,449
============
LIABILITIES
Deposits:
In domestic offices ........................................................................ 11,082,135
Noninterest-bearing ........................ 8,932,019
Interest-bearing ........................... 2,150,116
In foreign offices and Edge subsidiary ..................................................... 13,811,677
Noninterest-bearing ........................ 112,281
Interest-bearing ........................... 13,699,396
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary ........................................................ 6,785,263
Demand notes issued to the U.S. Treasury and Trading Liabilities .................................... 755,676
Other borrowed money ................................................................................ 716,013
Subordinated notes and debentures ................................................................... 0
Bank's liability on acceptances executed and outstanding ............................................ 99,605
Other liabilities ................................................................................... 841,566
Total liabilities ................................................................................... 34,091,935
------------
EQUITY CAPITAL
Perpetual preferred stock and related surplus........................................................ 0
Common stock ........................................................................................ 29,931
Surplus ............................................................................................. 437,183
Undivided profits and capital reserves/Net unrealized holding gains (losses) ........................ 1,542,695
Cumulative foreign currency translation adjustments ................................................ (4,295)
Total equity capital ................................................................................ 2,005,514
------------
Total liabilities and equity capital ................................................................ 36,097,449
</TABLE>
4
<PAGE>
I, Rex S. Schuette, Senior Assistant Vice President and Comptroller of the above
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
David A. Spina
Marshall N. Carter
Truman S. Casner
5
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
THE EQUITABLE COMPANIES INCORPORATED
(Exact name of obligor as specified in its charter)
Delaware 13-3623351
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1290 Avenue of the Americas
New York, New York 10104
(Address of principal executive offices) (Zip code)
----------------------
Junior Subordinated Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street
New York New York, N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza
New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 12th day of January, 1998.
THE BANK OF NEW YORK
By: /s/JAMES W.P. HALL
----------------------
Name: JAMES W.P. HALL
Title: VICE PRESIDENT
<PAGE>
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1997, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin ................................................................................. $ 5,004,638
Interest-bearing balances ......................................................................... 1,271,514
Securities:
Held-to-maturity securities ....................................................................... 1,105,782
Available-for-sale securities ..................................................................... 3,164,271
Federal funds sold and Securities pur-
chased under agreements to resell.................................................................... 5,723,829
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ................................................... 34,916,196
LESS: Allowance for loan and
lease losses ............................................. 581,177
LESS: Allocated transfer risk
reserve................................................... 429
Loans and leases, net of unearned
income, allowance, and reserve................................................................... 34,334,590
Assets held in trading accounts ..................................................................... 2,035,284
Premises and fixed assets (including
capitalized leases) ............................................................................... 671,664
Other real estate owned ............................................................................. 13,306
Investments in unconsolidated
subsidiaries and associated
companies ......................................................................................... 210,685
Customers' liability to this bank on
acceptances outstanding ........................................................................... 1,463,446
Intangible assets ................................................................................... 753,190
Other assets ........................................................................................ 1,784,796
-----------
Total assets ........................................................................................ $57,536,995
===========
LIABILITIES
Deposits:
In domestic offices ............................................................................... $27,270,824
Noninterest-bearing ........................................ 12,160,977
Interest-bearing ........................................... 15,109,847
</TABLE>
<PAGE>
<TABLE>
<S> <C>
In foreign offices, Edge and
Agreement subsidiaries, and IBFs .................................................................. 14,687,806
Noninterest-bearing ........................................ 657,479
Interest-bearing ........................................... 14,030,327
Federal funds purchased and Securities
sold under agreements to repurchase................................................................ 1,946,099
Demand notes issued to the U.S.
Treasury .......................................................................................... 283,793
Trading liabilities ................................................................................. 1,553,539
Other borrowed money:
With remaining maturity of one year
or less ......................................................................................... 2,245,014
With remaining maturity of more than
one year through three years..................................................................... 0
With remaining maturity of more than
three years ..................................................................................... 45,664
Bank's liability on acceptances exe-
cuted and outstanding ............................................................................. 1,473,588
Subordinated notes and debentures ................................................................... 1,018,940
Other liabilities ................................................................................... 2,193,031
-----------
Total liabilities ................................................................................... 52,718,298
-----------
EQUITY CAPITAL
Common stock ........................................................................................ 1,135,284
Surplus ............................................................................................. 731,319
Undivided profits and capital
reserves .......................................................................................... 2,943,008
Net unrealized holding gains
(losses) on available-for-sale
securities ........................................................................................ 25,428
Cumulative foreign currency transla-
tion adjustments .................................................................................. ( 16,342)
------------
Total equity capital ................................................................................ 4,818,697
-----------
Total liabilities and equity
capital ........................................................................................... $57,536,995
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
-
J. Carter Bacot |
Thomas A. Renyi |
Alan R. Griffith | Directors
-
- --------------------------------------------------------------------------------
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
EQ CAPITAL TRUST I
(Exact name of obligor as specified in its charter)
Delaware __________
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1290 Avenue of the Americas
New York, New York 10104
(Address of principal executive offices) (Zip code)
----------------------
Preferred Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street
New York New York, N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza
New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 12th day of January, 1998.
THE BANK OF NEW YORK
By: /s/JAMES W.P. HALL
----------------------
Name: JAMES W.P. HALL
Title: VICE PRESIDENT
<PAGE>
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1997, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin ................................................................................. $ 5,004,638
Interest-bearing balances ......................................................................... 1,271,514
Securities:
Held-to-maturity securities ....................................................................... 1,105,782
Available-for-sale securities ..................................................................... 3,164,271
Federal funds sold and Securities pur-
chased under agreements to resell.................................................................... 5,723,829
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ................................................... 34,916,196
LESS: Allowance for loan and
lease losses ............................................. 581,177
LESS: Allocated transfer risk
reserve................................................... 429
Loans and leases, net of unearned
income, allowance, and reserve................................................................... 34,334,590
Assets held in trading accounts ..................................................................... 2,035,284
Premises and fixed assets (including
capitalized leases) ............................................................................... 671,664
Other real estate owned ............................................................................. 13,306
Investments in unconsolidated
subsidiaries and associated
companies ......................................................................................... 210,685
Customers' liability to this bank on
acceptances outstanding ........................................................................... 1,463,446
Intangible assets ................................................................................... 753,190
Other assets ........................................................................................ 1,784,796
-----------
Total assets ........................................................................................ $57,536,995
===========
LIABILITIES
Deposits:
In domestic offices ............................................................................... $27,270,824
Noninterest-bearing ........................................ 12,160,977
Interest-bearing ........................................... 15,109,847
</TABLE>
<PAGE>
<TABLE>
<S> <C>
In foreign offices, Edge and
Agreement subsidiaries, and IBFs .................................................................. 14,687,806
Noninterest-bearing ........................................ 657,479
Interest-bearing ........................................... 14,030,327
Federal funds purchased and Securities
sold under agreements to repurchase................................................................ 1,946,099
Demand notes issued to the U.S.
Treasury .......................................................................................... 283,793
Trading liabilities ................................................................................. 1,553,539
Other borrowed money:
With remaining maturity of one year
or less ......................................................................................... 2,245,014
With remaining maturity of more than
one year through three years..................................................................... 0
With remaining maturity of more than
three years ..................................................................................... 45,664
Bank's liability on acceptances exe-
cuted and outstanding ............................................................................. 1,473,588
Subordinated notes and debentures ................................................................... 1,018,940
Other liabilities ................................................................................... 2,193,031
-----------
Total liabilities ................................................................................... 52,718,298
-----------
EQUITY CAPITAL
Common stock ........................................................................................ 1,135,284
Surplus ............................................................................................. 731,319
Undivided profits and capital
reserves .......................................................................................... 2,943,008
Net unrealized holding gains
(losses) on available-for-sale
securities ........................................................................................ 25,428
Cumulative foreign currency transla-
tion adjustments .................................................................................. ( 16,342)
------------
Total equity capital ................................................................................ 4,818,697
-----------
Total liabilities and equity
capital ........................................................................................... $57,536,995
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
-
J. Carter Bacot |
Thomas A. Renyi |
Alan R. Griffith | Directors
-
- --------------------------------------------------------------------------------
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
EQ CAPITAL TRUST II
(Exact name of obligor as specified in its charter)
Delaware __________
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1290 Avenue of the Americas
New York, New York 10104
(Address of principal executive offices) (Zip code)
----------------------
Preferred Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street
New York New York, N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza
New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 12th day of January, 1998.
THE BANK OF NEW YORK
By: /s/JAMES W.P. HALL
----------------------
Name: JAMES W.P. HALL
Title: VICE PRESIDENT
<PAGE>
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1997, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin ................................................................................. $ 5,004,638
Interest-bearing balances ......................................................................... 1,271,514
Securities:
Held-to-maturity securities ....................................................................... 1,105,782
Available-for-sale securities ..................................................................... 3,164,271
Federal funds sold and Securities pur-
chased under agreements to resell.................................................................... 5,723,829
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ................................................... 34,916,196
LESS: Allowance for loan and
lease losses ............................................. 581,177
LESS: Allocated transfer risk
reserve................................................... 429
Loans and leases, net of unearned
income, allowance, and reserve................................................................... 34,334,590
Assets held in trading accounts ..................................................................... 2,035,284
Premises and fixed assets (including
capitalized leases) ............................................................................... 671,664
Other real estate owned ............................................................................. 13,306
Investments in unconsolidated
subsidiaries and associated
companies ......................................................................................... 210,685
Customers' liability to this bank on
acceptances outstanding ........................................................................... 1,463,446
Intangible assets ................................................................................... 753,190
Other assets ........................................................................................ 1,784,796
-----------
Total assets ........................................................................................ $57,536,995
===========
LIABILITIES
Deposits:
In domestic offices ............................................................................... $27,270,824
Noninterest-bearing ........................................ 12,160,977
Interest-bearing ........................................... 15,109,847
</TABLE>
<PAGE>
<TABLE>
<S> <C>
In foreign offices, Edge and
Agreement subsidiaries, and IBFs .................................................................. 14,687,806
Noninterest-bearing ........................................ 657,479
Interest-bearing ........................................... 14,030,327
Federal funds purchased and Securities
sold under agreements to repurchase................................................................ 1,946,099
Demand notes issued to the U.S.
Treasury .......................................................................................... 283,793
Trading liabilities ................................................................................. 1,553,539
Other borrowed money:
With remaining maturity of one year
or less ......................................................................................... 2,245,014
With remaining maturity of more than
one year through three years..................................................................... 0
With remaining maturity of more than
three years ..................................................................................... 45,664
Bank's liability on acceptances exe-
cuted and outstanding ............................................................................. 1,473,588
Subordinated notes and debentures ................................................................... 1,018,940
Other liabilities ................................................................................... 2,193,031
-----------
Total liabilities ................................................................................... 52,718,298
-----------
EQUITY CAPITAL
Common stock ........................................................................................ 1,135,284
Surplus ............................................................................................. 731,319
Undivided profits and capital
reserves .......................................................................................... 2,943,008
Net unrealized holding gains
(losses) on available-for-sale
securities ........................................................................................ 25,428
Cumulative foreign currency transla-
tion adjustments .................................................................................. ( 16,342)
------------
Total equity capital ................................................................................ 4,818,697
-----------
Total liabilities and equity
capital ........................................................................................... $57,536,995
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
-
J. Carter Bacot |
Thomas A. Renyi |
Alan R. Griffith | Directors
-
- --------------------------------------------------------------------------------
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
EQ CAPITAL TRUST III
(Exact name of obligor as specified in its charter)
Delaware __________
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1290 Avenue of the Americas
New York, New York 10104
(Address of principal executive offices) (Zip code)
----------------------
Preferred Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street
New York New York, N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza
New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 12th day of January, 1998.
THE BANK OF NEW YORK
By: /s/JAMES W.P. HALL
----------------------
Name: JAMES W.P. HALL
Title: VICE PRESIDENT
<PAGE>
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1997, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin ................................................................................. $ 5,004,638
Interest-bearing balances ......................................................................... 1,271,514
Securities:
Held-to-maturity securities ....................................................................... 1,105,782
Available-for-sale securities ..................................................................... 3,164,271
Federal funds sold and Securities pur-
chased under agreements to resell.................................................................... 5,723,829
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ................................................... 34,916,196
LESS: Allowance for loan and
lease losses ............................................. 581,177
LESS: Allocated transfer risk
reserve................................................... 429
Loans and leases, net of unearned
income, allowance, and reserve................................................................... 34,334,590
Assets held in trading accounts ..................................................................... 2,035,284
Premises and fixed assets (including
capitalized leases) ............................................................................... 671,664
Other real estate owned ............................................................................. 13,306
Investments in unconsolidated
subsidiaries and associated
companies ......................................................................................... 210,685
Customers' liability to this bank on
acceptances outstanding ........................................................................... 1,463,446
Intangible assets ................................................................................... 753,190
Other assets ........................................................................................ 1,784,796
-----------
Total assets ........................................................................................ $57,536,995
===========
LIABILITIES
Deposits:
In domestic offices ............................................................................... $27,270,824
Noninterest-bearing ........................................ 12,160,977
Interest-bearing ........................................... 15,109,847
</TABLE>
<PAGE>
<TABLE>
<S> <C>
In foreign offices, Edge and
Agreement subsidiaries, and IBFs .................................................................. 14,687,806
Noninterest-bearing ........................................ 657,479
Interest-bearing ........................................... 14,030,327
Federal funds purchased and Securities
sold under agreements to repurchase................................................................ 1,946,099
Demand notes issued to the U.S.
Treasury .......................................................................................... 283,793
Trading liabilities ................................................................................. 1,553,539
Other borrowed money:
With remaining maturity of one year
or less ......................................................................................... 2,245,014
With remaining maturity of more than
one year through three years..................................................................... 0
With remaining maturity of more than
three years ..................................................................................... 45,664
Bank's liability on acceptances exe-
cuted and outstanding ............................................................................. 1,473,588
Subordinated notes and debentures ................................................................... 1,018,940
Other liabilities ................................................................................... 2,193,031
-----------
Total liabilities ................................................................................... 52,718,298
-----------
EQUITY CAPITAL
Common stock ........................................................................................ 1,135,284
Surplus ............................................................................................. 731,319
Undivided profits and capital
reserves .......................................................................................... 2,943,008
Net unrealized holding gains
(losses) on available-for-sale
securities ........................................................................................ 25,428
Cumulative foreign currency transla-
tion adjustments .................................................................................. ( 16,342)
------------
Total equity capital ................................................................................ 4,818,697
-----------
Total liabilities and equity
capital ........................................................................................... $57,536,995
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
-
J. Carter Bacot |
Thomas A. Renyi |
Alan R. Griffith | Directors
-
- --------------------------------------------------------------------------------
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
EQ CAPITAL TRUST IV
(Exact name of obligor as specified in its charter)
Delaware __________
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1290 Avenue of the Americas
New York, New York 10104
(Address of principal executive offices) (Zip code)
----------------------
Preferred Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street
New York New York, N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza
New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 12th day of January, 1998.
THE BANK OF NEW YORK
By: /s/JAMES W.P. HALL
----------------------
Name: JAMES W.P. HALL
Title: VICE PRESIDENT
<PAGE>
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1997, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin ................................................................................. $ 5,004,638
Interest-bearing balances ......................................................................... 1,271,514
Securities:
Held-to-maturity securities ....................................................................... 1,105,782
Available-for-sale securities ..................................................................... 3,164,271
Federal funds sold and Securities pur-
chased under agreements to resell.................................................................... 5,723,829
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ................................................... 34,916,196
LESS: Allowance for loan and
lease losses ............................................. 581,177
LESS: Allocated transfer risk
reserve................................................... 429
Loans and leases, net of unearned
income, allowance, and reserve................................................................... 34,334,590
Assets held in trading accounts ..................................................................... 2,035,284
Premises and fixed assets (including
capitalized leases) ............................................................................... 671,664
Other real estate owned ............................................................................. 13,306
Investments in unconsolidated
subsidiaries and associated
companies ......................................................................................... 210,685
Customers' liability to this bank on
acceptances outstanding ........................................................................... 1,463,446
Intangible assets ................................................................................... 753,190
Other assets ........................................................................................ 1,784,796
-----------
Total assets ........................................................................................ $57,536,995
===========
LIABILITIES
Deposits:
In domestic offices ............................................................................... $27,270,824
Noninterest-bearing ........................................ 12,160,977
Interest-bearing ........................................... 15,109,847
</TABLE>
<PAGE>
<TABLE>
<S> <C>
In foreign offices, Edge and
Agreement subsidiaries, and IBFs .................................................................. 14,687,806
Noninterest-bearing ........................................ 657,479
Interest-bearing ........................................... 14,030,327
Federal funds purchased and Securities
sold under agreements to repurchase................................................................ 1,946,099
Demand notes issued to the U.S.
Treasury .......................................................................................... 283,793
Trading liabilities ................................................................................. 1,553,539
Other borrowed money:
With remaining maturity of one year
or less ......................................................................................... 2,245,014
With remaining maturity of more than
one year through three years..................................................................... 0
With remaining maturity of more than
three years ..................................................................................... 45,664
Bank's liability on acceptances exe-
cuted and outstanding ............................................................................. 1,473,588
Subordinated notes and debentures ................................................................... 1,018,940
Other liabilities ................................................................................... 2,193,031
-----------
Total liabilities ................................................................................... 52,718,298
-----------
EQUITY CAPITAL
Common stock ........................................................................................ 1,135,284
Surplus ............................................................................................. 731,319
Undivided profits and capital
reserves .......................................................................................... 2,943,008
Net unrealized holding gains
(losses) on available-for-sale
securities ........................................................................................ 25,428
Cumulative foreign currency transla-
tion adjustments .................................................................................. ( 16,342)
------------
Total equity capital ................................................................................ 4,818,697
-----------
Total liabilities and equity
capital ........................................................................................... $57,536,995
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
-
J. Carter Bacot |
Thomas A. Renyi |
Alan R. Griffith | Directors
-
- --------------------------------------------------------------------------------
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
THE EQUITABLE COMPANIES INCORPORATED
(Exact name of obligor as specified in its charter)
Delaware 13-3623351
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1290 Avenue of the Americas
New York, New York 10104
(Address of principal executive offices) (Zip code)
----------------------
Guarantee of Preferred Securites of
EQ Capital Trust I
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street
New York New York, N.Y. 10006, and
Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza
New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 12th day of January, 1998.
THE BANK OF NEW YORK
By: /s/JAMES W.P. HALL
----------------------
Name: JAMES W.P. HALL
Title: VICE PRESIDENT
<PAGE>
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1997, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin ................................................................................. $ 5,004,638
Interest-bearing balances ......................................................................... 1,271,514
Securities:
Held-to-maturity securities ....................................................................... 1,105,782
Available-for-sale securities ..................................................................... 3,164,271
Federal funds sold and Securities pur-
chased under agreements to resell.................................................................... 5,723,829
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ................................................... 34,916,196
LESS: Allowance for loan and
lease losses ............................................. 581,177
LESS: Allocated transfer risk
reserve................................................... 429
Loans and leases, net of unearned
income, allowance, and reserve................................................................... 34,334,590
Assets held in trading accounts ..................................................................... 2,035,284
Premises and fixed assets (including
capitalized leases) ............................................................................... 671,664
Other real estate owned ............................................................................. 13,306
Investments in unconsolidated
subsidiaries and associated
companies ......................................................................................... 210,685
Customers' liability to this bank on
acceptances outstanding ........................................................................... 1,463,446
Intangible assets ................................................................................... 753,190
Other assets ........................................................................................ 1,784,796
-----------
Total assets ........................................................................................ $57,536,995
===========
LIABILITIES
Deposits:
In domestic offices ............................................................................... $27,270,824
Noninterest-bearing ........................................ 12,160,977
Interest-bearing ........................................... 15,109,847
</TABLE>
<PAGE>
<TABLE>
<S> <C>
In foreign offices, Edge and
Agreement subsidiaries, and IBFs .................................................................. 14,687,806
Noninterest-bearing ........................................ 657,479
Interest-bearing ........................................... 14,030,327
Federal funds purchased and Securities
sold under agreements to repurchase................................................................ 1,946,099
Demand notes issued to the U.S.
Treasury .......................................................................................... 283,793
Trading liabilities ................................................................................. 1,553,539
Other borrowed money:
With remaining maturity of one year
or less ......................................................................................... 2,245,014
With remaining maturity of more than
one year through three years..................................................................... 0
With remaining maturity of more than
three years ..................................................................................... 45,664
Bank's liability on acceptances exe-
cuted and outstanding ............................................................................. 1,473,588
Subordinated notes and debentures ................................................................... 1,018,940
Other liabilities ................................................................................... 2,193,031
-----------
Total liabilities ................................................................................... 52,718,298
-----------
EQUITY CAPITAL
Common stock ........................................................................................ 1,135,284
Surplus ............................................................................................. 731,319
Undivided profits and capital
reserves .......................................................................................... 2,943,008
Net unrealized holding gains
(losses) on available-for-sale
securities ........................................................................................ 25,428
Cumulative foreign currency transla-
tion adjustments .................................................................................. ( 16,342)
------------
Total equity capital ................................................................................ 4,818,697
-----------
Total liabilities and equity
capital ........................................................................................... $57,536,995
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
-
J. Carter Bacot |
Thomas A. Renyi |
Alan R. Griffith | Directors
-
- --------------------------------------------------------------------------------
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
THE EQUITABLE COMPANIES INCORPORATED
(Exact name of obligor as specified in its charter)
Delaware 13-3623351
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1290 Avenue of the Americas
New York, New York 10104
(Address of principal executive offices) (Zip code)
----------------------
Guarantee of Preferred Securites of
EQ Capital Trust II
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street
New York New York, N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza
New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 12th day of January, 1998.
THE BANK OF NEW YORK
By: /s/JAMES W.P. HALL
----------------------
Name: JAMES W.P. HALL
Title: VICE PRESIDENT
<PAGE>
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1997, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin ................................................................................. $ 5,004,638
Interest-bearing balances ......................................................................... 1,271,514
Securities:
Held-to-maturity securities ....................................................................... 1,105,782
Available-for-sale securities ..................................................................... 3,164,271
Federal funds sold and Securities pur-
chased under agreements to resell.................................................................... 5,723,829
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ................................................... 34,916,196
LESS: Allowance for loan and
lease losses ............................................. 581,177
LESS: Allocated transfer risk
reserve................................................... 429
Loans and leases, net of unearned
income, allowance, and reserve................................................................... 34,334,590
Assets held in trading accounts ..................................................................... 2,035,284
Premises and fixed assets (including
capitalized leases) ............................................................................... 671,664
Other real estate owned ............................................................................. 13,306
Investments in unconsolidated
subsidiaries and associated
companies ......................................................................................... 210,685
Customers' liability to this bank on
acceptances outstanding ........................................................................... 1,463,446
Intangible assets ................................................................................... 753,190
Other assets ........................................................................................ 1,784,796
-----------
Total assets ........................................................................................ $57,536,995
===========
LIABILITIES
Deposits:
In domestic offices ............................................................................... $27,270,824
Noninterest-bearing ........................................ 12,160,977
Interest-bearing ........................................... 15,109,847
</TABLE>
<PAGE>
<TABLE>
<S> <C>
In foreign offices, Edge and
Agreement subsidiaries, and IBFs .................................................................. 14,687,806
Noninterest-bearing ........................................ 657,479
Interest-bearing ........................................... 14,030,327
Federal funds purchased and Securities
sold under agreements to repurchase................................................................ 1,946,099
Demand notes issued to the U.S.
Treasury .......................................................................................... 283,793
Trading liabilities ................................................................................. 1,553,539
Other borrowed money:
With remaining maturity of one year
or less ......................................................................................... 2,245,014
With remaining maturity of more than
one year through three years..................................................................... 0
With remaining maturity of more than
three years ..................................................................................... 45,664
Bank's liability on acceptances exe-
cuted and outstanding ............................................................................. 1,473,588
Subordinated notes and debentures ................................................................... 1,018,940
Other liabilities ................................................................................... 2,193,031
-----------
Total liabilities ................................................................................... 52,718,298
-----------
EQUITY CAPITAL
Common stock ........................................................................................ 1,135,284
Surplus ............................................................................................. 731,319
Undivided profits and capital
reserves .......................................................................................... 2,943,008
Net unrealized holding gains
(losses) on available-for-sale
securities ........................................................................................ 25,428
Cumulative foreign currency transla-
tion adjustments .................................................................................. ( 16,342)
------------
Total equity capital ................................................................................ 4,818,697
-----------
Total liabilities and equity
capital ........................................................................................... $57,536,995
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
-
J. Carter Bacot |
Thomas A. Renyi |
Alan R. Griffith | Directors
-
- --------------------------------------------------------------------------------
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
THE EQUITABLE COMPANIES INCORPORATED
(Exact name of obligor as specified in its charter)
Delaware 13-3623351
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1290 Avenue of the Americas
New York, New York 10104
(Address of principal executive offices) (Zip code)
----------------------
Guarantee of Preferred Securites of
EQ Capital Trust III
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street
New York New York, N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza,
New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 12th day of January, 1998.
THE BANK OF NEW YORK
By: /s/JAMES W.P. HALL
----------------------
Name: JAMES W.P. HALL
Title: VICE PRESIDENT
<PAGE>
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1997, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin ................................................................................. $ 5,004,638
Interest-bearing balances ......................................................................... 1,271,514
Securities:
Held-to-maturity securities ....................................................................... 1,105,782
Available-for-sale securities ..................................................................... 3,164,271
Federal funds sold and Securities pur-
chased under agreements to resell.................................................................... 5,723,829
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ................................................... 34,916,196
LESS: Allowance for loan and
lease losses ............................................. 581,177
LESS: Allocated transfer risk
reserve................................................... 429
Loans and leases, net of unearned
income, allowance, and reserve................................................................... 34,334,590
Assets held in trading accounts ..................................................................... 2,035,284
Premises and fixed assets (including
capitalized leases) ............................................................................... 671,664
Other real estate owned ............................................................................. 13,306
Investments in unconsolidated
subsidiaries and associated
companies ......................................................................................... 210,685
Customers' liability to this bank on
acceptances outstanding ........................................................................... 1,463,446
Intangible assets ................................................................................... 753,190
Other assets ........................................................................................ 1,784,796
-----------
Total assets ........................................................................................ $57,536,995
===========
LIABILITIES
Deposits:
In domestic offices ............................................................................... $27,270,824
Noninterest-bearing ........................................ 12,160,977
Interest-bearing ........................................... 15,109,847
</TABLE>
<PAGE>
<TABLE>
<S> <C>
In foreign offices, Edge and
Agreement subsidiaries, and IBFs .................................................................. 14,687,806
Noninterest-bearing ........................................ 657,479
Interest-bearing ........................................... 14,030,327
Federal funds purchased and Securities
sold under agreements to repurchase................................................................ 1,946,099
Demand notes issued to the U.S.
Treasury .......................................................................................... 283,793
Trading liabilities ................................................................................. 1,553,539
Other borrowed money:
With remaining maturity of one year
or less ......................................................................................... 2,245,014
With remaining maturity of more than
one year through three years..................................................................... 0
With remaining maturity of more than
three years ..................................................................................... 45,664
Bank's liability on acceptances exe-
cuted and outstanding ............................................................................. 1,473,588
Subordinated notes and debentures ................................................................... 1,018,940
Other liabilities ................................................................................... 2,193,031
-----------
Total liabilities ................................................................................... 52,718,298
-----------
EQUITY CAPITAL
Common stock ........................................................................................ 1,135,284
Surplus ............................................................................................. 731,319
Undivided profits and capital
reserves .......................................................................................... 2,943,008
Net unrealized holding gains
(losses) on available-for-sale
securities ........................................................................................ 25,428
Cumulative foreign currency transla-
tion adjustments .................................................................................. ( 16,342)
------------
Total equity capital ................................................................................ 4,818,697
-----------
Total liabilities and equity
capital ........................................................................................... $57,536,995
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
-
J. Carter Bacot |
Thomas A. Renyi |
Alan R. Griffith | Directors
-
- --------------------------------------------------------------------------------
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
THE EQUITABLE COMPANIES INCORPORATED
(Exact name of obligor as specified in its charter)
Delaware 13-3623351
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1290 Avenue of the Americas
New York, New York 10104
(Address of principal executive offices) (Zip code)
----------------------
Guarantee of Preferred Securites of
EQ Capital Trust IV
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street
New York New York, N.Y. 10006, and
Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza
New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 12th day of January, 1998.
THE BANK OF NEW YORK
By: /s/JAMES W.P. HALL
----------------------
Name: JAMES W.P. HALL
Title: VICE PRESIDENT
<PAGE>
Exhibit 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1997, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin ................................................................................. $ 5,004,638
Interest-bearing balances ......................................................................... 1,271,514
Securities:
Held-to-maturity securities ....................................................................... 1,105,782
Available-for-sale securities ..................................................................... 3,164,271
Federal funds sold and Securities pur-
chased under agreements to resell.................................................................... 5,723,829
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ................................................... 34,916,196
LESS: Allowance for loan and
lease losses ............................................. 581,177
LESS: Allocated transfer risk
reserve................................................... 429
Loans and leases, net of unearned
income, allowance, and reserve................................................................... 34,334,590
Assets held in trading accounts ..................................................................... 2,035,284
Premises and fixed assets (including
capitalized leases) ............................................................................... 671,664
Other real estate owned ............................................................................. 13,306
Investments in unconsolidated
subsidiaries and associated
companies ......................................................................................... 210,685
Customers' liability to this bank on
acceptances outstanding ........................................................................... 1,463,446
Intangible assets ................................................................................... 753,190
Other assets ........................................................................................ 1,784,796
-----------
Total assets ........................................................................................ $57,536,995
===========
LIABILITIES
Deposits:
In domestic offices ............................................................................... $27,270,824
Noninterest-bearing ........................................ 12,160,977
Interest-bearing ........................................... 15,109,847
</TABLE>
<PAGE>
<TABLE>
<S> <C>
In foreign offices, Edge and
Agreement subsidiaries, and IBFs .................................................................. 14,687,806
Noninterest-bearing ........................................ 657,479
Interest-bearing ........................................... 14,030,327
Federal funds purchased and Securities
sold under agreements to repurchase................................................................ 1,946,099
Demand notes issued to the U.S.
Treasury .......................................................................................... 283,793
Trading liabilities ................................................................................. 1,553,539
Other borrowed money:
With remaining maturity of one year
or less ......................................................................................... 2,245,014
With remaining maturity of more than
one year through three years..................................................................... 0
With remaining maturity of more than
three years ..................................................................................... 45,664
Bank's liability on acceptances exe-
cuted and outstanding ............................................................................. 1,473,588
Subordinated notes and debentures ................................................................... 1,018,940
Other liabilities ................................................................................... 2,193,031
-----------
Total liabilities ................................................................................... 52,718,298
-----------
EQUITY CAPITAL
Common stock ........................................................................................ 1,135,284
Surplus ............................................................................................. 731,319
Undivided profits and capital
reserves .......................................................................................... 2,943,008
Net unrealized holding gains
(losses) on available-for-sale
securities ........................................................................................ 25,428
Cumulative foreign currency transla-
tion adjustments .................................................................................. ( 16,342)
------------
Total equity capital ................................................................................ 4,818,697
-----------
Total liabilities and equity
capital ........................................................................................... $57,536,995
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
-
J. Carter Bacot |
Thomas A. Renyi |
Alan R. Griffith | Directors
-
- --------------------------------------------------------------------------------
