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 Xxxxxxx X. Xxxxx, Xxxxx X. Xxxxx and
Xxxxxx X. 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 xxx 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, Xxxxxxx X. Xxxxx, Xxxxx X. Xxxxx and
Xxxxxx X. 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 Xxxxxxx X.
Xxxxx, Xxxxx X. Xxxxx, Xxxxx X. Xxxxxx, Xxxx X. Xxxxxx and Xxxxxxx Xxxxxxx, 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
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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/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President,
Chief Financial Officer
The Bank of New York,
not in its individual capacity
but solely as Property Trustee
By: /s/ Xxxxxx X. Xxxxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Assistant Vice President
The Bank of New York (Delaware), not in its
individual capacity but solely as Delaware
Trustee
By: /s/ Xxxx Xxxx Xxxxxxxxx
----------------------------------
Name: Xxxx Xxxx Xxxxxxxxx
Title: Authorized Signatory
/s/ Xxxxxxx X. Xxxxx
---------------------------------------
not in his individual capacity
but solely as Trustee
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/s/ Xxxxx X. Xxxxx
---------------------------------------
not in his individual capacity
but solely as Trustee
/s/ Xxxxxx X. Gender
---------------------------------------
not in his individual capacity
but solely as Trustee
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