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------
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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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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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
4
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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(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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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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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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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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(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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(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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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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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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[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
- 4 -
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 -
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 -
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 -
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 -
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 -
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 -
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 -
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 -
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 -
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 -
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 -
[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 -
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 -
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 -
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 -
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 -
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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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.
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SCHEDULE A
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
---- ---------------- -------- -------
----- --------------- ------------ ------------ -------
----- --------------- ------------ ------------ -------
----- --------------- ------------ ------------ -------
----- --------------- ------------ ------------ -------
----- --------------- ------------ ------------ -------
----- --------------- ------------ ------------ -------
----- --------------- ------------ ------------ -------
----- --------------- ------------ ------------ -------
----- --------------- ------------ ------------ -------
----- --------------- ------------ ------------ -------
----- --------------- ------------ ------------ -------
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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.
