EXHIBIT 4b(4)
PUBLIC SERVICE ELECTRIC AND GAS COMPANY
and
FIRST FIDELITY BANK, NATIONAL ASSOCIATION, as Trustee
INDENTURE
Dated as of November 1, 1994
Providing for the Issuance of
Deferrable Interest Subordinated Debentures in Series
including
9-3/8% Deferrable Interest Subordinated Debentures, Series A
TABLE OF CONTENTS
Page
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ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions........................................ 2
SECTION 1.02 Other Definitions.................................. 7
SECTION 1.03 Incorporation by Reference of Trust
Indenture Act.................................... 7
SECTION 1.04 Rules of Construction.............................. 8
SECTION 1.05 Acts of Holders.................................... 8
ARTICLE 2. THE DEBENTURES; THE SERIES A DEBENTURES
SECTION 2.01 Issue of Debentures Generally...................... 9
SECTION 2.02 Terms and Form of the Series A
Debentures....................................... 10
SECTION 2.03 Payment of Principal and Interest.................. 11
SECTION 2.04 Execution, Authentication and Delivery............. 13
SECTION 2.05 Registrar and Paying Agent......................... 15
SECTION 2.06 Paying Agent to Hold Money in Trust................ 16
SECTION 2.07 Debentureholder Lists.............................. 16
SECTION 2.08 Transfer and Exchange.............................. 16
SECTION 2.09 Replacement Debentures............................. 17
SECTION 2.10 Outstanding Debentures; Determinations of
Holders' Action.................................. 18
SECTION 2.11 Temporary Debentures............................... 19
SECTION 2.12 Book Entry System.................................. 19
SECTION 2.13 Cancellation....................................... 21
ARTICLE 3. REDEMPTION
SECTION 3.01 Redemption; Notice to Trustee...................... 21
SECTION 3.02 Selection of Debentures to be Redeemed............. 22
SECTION 3.03 Notice of Redemption............................... 22
SECTION 3.04 Effect of Notice of Redemption..................... 23
SECTION 3.05 Deposit of Redemption Price........................ 23
SECTION 3.06 Debentures Redeemed in Part........................ 23
ARTICLE 4. COVENANTS
SECTION 4.01 Payment of Debentures.............................. 23
SECTION 4.02 Prohibition Against Dividends, etc. ............... 24
SECTION 4.03 SEC Reports........................................ 25
SECTION 4.04 Compliance Certificates............................ 25
SECTION 4.05 Relationship with the Partnership.................. 25
SECTION 4.06 Further Instruments and Acts....................... 26
SECTION 4.07 Payments for Consents.............................. 26
ARTICLE 5. SUCCESSOR CORPORATION
SECTION 5.01 When the Company May Merge, Etc. .................. 26
ARTICLE 6. DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default.................................. 27
SECTION 6.02 Acceleration....................................... 28
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SECTION 6.03 Other Remedies..................................... 29
SECTION 6.04 Waiver of Past Defaults............................ 29
SECTION 6.05 Control by Majority or the Special
Representative................................... 30
SECTION 6.06 Limitation on Suits................................ 30
SECTION 6.07 Rights of Holders to Receive Payment............... 30
SECTION 6.08 Collection Suit by the Trustee..................... 31
SECTION 6.09 The Trustee May File Proofs of Claim............... 31
SECTION 6.10 Priorities......................................... 31
SECTION 6.11 Undertaking for Costs.............................. 32
SECTION 6.12 Waiver of Stay, Extension or Usury Laws............ 32
ARTICLE 7. THE TRUSTEE
SECTION 7.01 Duties of the Trustee.............................. 32
SECTION 7.02 Rights of the Trustee.............................. 33
SECTION 7.03 Individual Rights of the Trustee................... 34
SECTION 7.04 The Trustee's Disclaimer........................... 34
SECTION 7.05 Notice of Defaults................................. 35
SECTION 7.06 Reports by Trustee to Holders...................... 35
SECTION 7.07 Compensation and Indemnity......................... 35
SECTION 7.08 Replacement of Trustee............................. 36
SECTION 7.09 Successor Trustee by Merger........................ 37
SECTION 7.10 Eligibility; Disqualification...................... 37
SECTION 7.11 Preferential Collection of Claims Against
the Company...................................... 37
ARTICLE 8. SATISFACTION AND DISCHARGE OF INDENTURE;
DEFEASANCE OF CERTAIN OBLIGATIONS; UNCLAIMED MONEYS
SECTION 8.01 Satisfaction and Discharge of Indenture............ 38
SECTION 8.02 Application by Trustee of Funds Deposited
for Payment of Debentures........................ 39
SECTION 8.03 Repayment of Moneys Held by Paying Agent........... 39
SECTION 8.04 Return of Moneys Held by the Trustee and
Paying Agent Unclaimed for Three Years........... 39
ARTICLE 9. AMENDMENTS
SECTION 9.01 Without Consent of Holders......................... 40
SECTION 9.02 With Consent of Holders............................ 40
SECTION 9.03 Compliance with Trust Indenture Act................ 41
SECTION 9.04 Revocation and Effect of Consents,
Waivers and Actions.............................. 41
SECTION 9.05 Notation on or Exchange of Debentures.............. 42
SECTION 9.06 Trustee to Execute Supplemental
Indentures....................................... 42
SECTION 9.07 Effect of Supplemental Indentures.................. 42
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ARTICLE 10. SUBORDINATION
SECTION 10.01 Debentures Subordinated to Senior Indebtedness..... 43
SECTION 10.02 Priority and Payment of Proceeds in
Certain Events; Remedies Standstill.............. 43
SECTION 10.03 Payments which May Be Made Prior to Notice......... 44
SECTION 10.04 Rights of Holders of Senior Indebtedness
Not to Be Impaired............................... 44
SECTION 10.05 Trustee May Take Action to Effectuate
Subordination.................................... 45
SECTION 10.06 Subrogation........................................ 45
SECTION 10.07 Obligations of Company Unconditional;
Reinstatement.................................... 46
SECTION 10.08 Trustee Entitled to Assume Payments Not
Prohibited in Absence of Notice.................. 46
SECTION 10.09 Right of Trustee to Hold Senior
Indebtedness..................................... 47
ARTICLE 11. MISCELLANEOUS
SECTION 11.01 Trust Indenture Act Controls....................... 47
SECTION 11.02 Notices............................................ 48
SECTION 11.03 Communication by Holders with Other Holders........ 48
SECTION 11.04 Certificate and Opinion as to Conditions
Precedent........................................ 49
SECTION 11.05 Statements Required in Certificate or Opinion...... 49
SECTION 11.06 Severability Clause................................ 49
SECTION 11.07 Rules by Trustee, Paying Agent and
Registrar........................................ 50
SECTION 11.08 Legal Holidays..................................... 50
SECTION 11.09 Governing Law...................................... 50
SECTION 11.10 No Recourse Against Others......................... 50
SECTION 11.11 Successors......................................... 50
SECTION 11.12 Multiple Original Copies of this Indenture......... 50
SECTION 11.13 No Adverse Interpretation of Other Agreements...... 51
SECTION 11.14 Table of Contents; Headings, Etc. ................. 51
SECTION 11.15 Benefits of the Indenture.......................... 51
SECTION 11.16 Partnership Books and Records...................... 51
iii
CROSS-REFERENCE TABLE
of Provisions of the Indenture
Required by the Trust Indenture Act of 1939
Trust Indenture Provision of
Act Section Indenture
--------------- -----------------
310(a)(1)........................... 7.10
(a)(2)........................... 7.10
(a)(3)........................... Not Applicable
(a)(4)........................... Not Applicable
(a)(5)........................... Not Applicable
(b).............................. 7.08; 7.10; 11.01
(c).............................. Not Applicable
311(a).............................. 7.11
(b).............................. 7.11
(c).............................. Not Applicable
312(a).............................. 2.07
(b).............................. 11.03
(c).............................. 11.03
313(a).............................. 7.06
(b)(1)........................... Not Applicable
(b)(2)........................... 7.06
(c).............................. 7.06; 11.02
(d).............................. 7.06
314(a).............................. 4.03; 11.02
(b).............................. Not Applicable
(c)(1)........................... 2.02; 11.04; 11.05
(c)(2)........................... 2.02; 11.04; 11.05
(c)(3............................ Not Applicable
(d).............................. Not Applicable
(e).............................. 11.05
(f).............................. Not Applicable
315(a).............................. 7.01(b)
(b).............................. 7.05; 11.02
(c).............................. 7.01(a)
(d).............................. 7.01(c)
(e).............................. 6.11
316(a)(1)(A)........................ 6.05
(a)(1)(B)........................ 6.04
(a)(2)........................... Not Applicable
(a)(last sentence)............... 2.10
(b).............................. 6.07
(c).............................. 2.02
317(a)(1)........................... 6.08
(a)(2)........................... 6.09
(b).............................. 2.06
318(a).............................. 11.01
(b).............................. Not Applicable
(c).............................. 11.01
-------------------
Note: This Cross-Reference Table shall not, for any purpose, be
deemed to be part of the Indenture.
iv
INDENTURE, dated as of November 1, 1994, by and between Public
Service Electric and Gas Company, a corporation duly organized and existing
under the laws of the State of New Jersey (the "Company"), and First Fidelity
Bank, National Association, a national banking association duly organized and
existing under the laws of the United States of America as trustee (the
"Trustee").
WHEREAS, the Company is the general partner of Public Service
Electric and Gas Capital, L.P., a New Jersey limited partnership (the
"Partnership"), which intends to issue in series from time to time its limited
partner interests and to loan the proceeds thereof, together with the
investment by the Company, as its sole general partner, in the Partnership to
the Company.
WHEREAS, in order to evidence its intention to make such loans and
to accept the Debentures as evidence of such loans, and its approval of the
terms of the Series A Debentures (as hereinafter defined), the Partnership has
joined in this Indenture.
WHEREAS, the Company has authorized the issuance of its 9-3/8%
Deferrable Interest Subordinated Debentures, Series A (the "Series A
Debentures") to evidence its obligations with respect to a loan from the
Partnership of the proceeds of a series of its preferred limited partner
interests designated 9-3/8% Cumulative Monthly Income Preferred Securities,
Series A and the related investment by the Company, as its sole general
partner, in the Partnership, and to provide therefor, the Company has duly
authorized the execution and delivery of this Indenture.
WHEREAS, all things necessary to make the Series A Debentures, when
duly issued and executed by the Company and authenticated and delivered
hereunder, the valid obligations of the Company, and to make this Indenture a
valid and binding agreement of the Company, in accordance with its terms, have
been done.
NOW THEREFORE:
Each of the Company and the Trustee, intending to be legally bound
hereby, agrees as follows for the benefit of the other party and for the equal
and ratable benefit of the Holders (as hereinafter defined) of the securities
issued hereunder, including the Series A Debentures:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
"Additional Interest," with respect to the Series A Debentures, means
an amount equal to and payable at the same time as any Additional Amounts
payable on the Series A Preferred Securities, as defined in the action pursuant
to the Limited Partnership Agreement creating the Series A Preferred
Securities, plus amounts, if any, which the Partnership would be required to
pay as taxes, duties, assessments or governmental charges of whatever nature
(other than withholding taxes) imposed by the United States, or any other
taxing authority, with respect to the Series A Debentures so that the net
amounts received and retained by the Partnership after paying any such taxes,
duties, assessments or governmental charges will be not less than the amounts
the Partnership would have received had no such taxes, duties, assessments or
governmental charges been imposed. With respect to any other series of
Debentures, "Additional Interest" shall have the meaning set forth in the
supplemental indenture creating such series.
"Affiliate" of any specified Person means any other Person, directly
or indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. When used with respect to any Person,
"control" 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.
"Board of Directors" means the Board of Directors of the Company or
any committee thereof duly authorized to act on behalf of such Board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or the 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
such certification and delivered to the Trustee.
"Business Day" means any day that is not a Saturday, a Sunday or a
day on which banking institutions in The City of New York or the State of New
Jersey are authorized or required by law or executive order to close.
"Capital Lease Obligations" of a Person means any obligation which
is required to be classified and accounted for as a capital lease on the face
of a balance sheet of such Person prepared in accordance with GAAP.
"Capital Stock" means any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of or
interests in (however designated) corporate stock.
"Company" means Public Service Electric and Gas Company, a New Jersey
corporation, or any successor thereto.
"Company Order" means a written request or order signed in the name
of the Company by an Officer of the Company and delivered to the Trustee.
"Debentureholder" or "Holder" means a Person in whose name a
Debenture is registered on the Registrar's books.
"Debentures" shall mean any of the securities of any series issued,
authenticated and delivered under this Indenture.
"Default" means any event which is, or after notice or passage of
time, or both, would be, an Event of Default pursuant to Section 6.01 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Extension Period" means a period, up to 60 consecutive months, in
which the Company elects to extend the interest payment period on the
Debentures pursuant to Section 4.01(b) hereof; provided that no Extension
Period shall extend beyond the Stated Maturity Date or the Redemption Date of
any Debenture.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board.
"General Partner" means the Company, as the general partner of the
Partnership, or any successor thereto or permitted assigns thereof that becomes
a general partner of the Partnership pursuant to the Limited Partnership
Agreement.
"Guarantee Agreement" means that certain payment and guarantee
agreement issued by the Company with respect to a series of Preferred
Securities, in which the Company irrevocably and unconditionally agrees to pay
the Guarantee Payments (as defined in the Guarantee Agreement) to the holders
of the series of Preferred Securities issued concurrently therewith.
"Indebtedness" means without duplication, (i) the principal of and
premium (if any) in respect of (A) indebtedness of the Company for money
borrowed and (B) indebtedness evidenced by securities, debentures, bonds or
other similar instruments issued by the Company; (ii) all Capital Lease
Obligations of the Company; (iii) all obligations of the Company issued or
assumed as the deferred purchase price of property, all conditional sale
obligations of the Company and all obligations of the Company under any title
retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) all obligations of the Company for the
reimbursement of any obligor on any letter of credit, banker's acceptance,
security purchase facility or similar credit transaction (other than
obligations with respect to letters of credit securing obligations (other than
obligations described in (i) through (iii) above) entered into in the ordinary
course of business of the Company to the extent such letters of credit are not
drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no
later than the third Business Day following receipt by the Company of a demand
for reimbursement following payment on the letter of credit); (v) all
obligations of the type referred to in clauses (i) through (iv) of other
Persons and all dividends of other Persons (other than the Preferred
Securities) for the payment of which, in either case, the Company is
responsible or liable as obligor, guarantor or otherwise (other than the
Guarantee Agreement); and (vi) all obligations of the type referred to in
clauses (i) through (v) of other Persons secured by any lien on any property
or asset of the Company (whether or not such obligation is assumed by the
Company), the amount of such obligation being deemed to be the lesser of the
value of such property or assets or the amount of the obligation so secured;
provided, however, that Indebtedness will not include endorsements of
negotiable instruments for collection in the ordinary course of business.
"Indenture" means this indenture, as amended or supplemented from
time to time in accordance with the terms hereof, including the provisions of
the TIA that are deemed to be a part hereof.
"Interest Payment Date," when used with respect to the Debentures of
any series, means the stated maturity of any installment of interest on the
Debentures of that series.
"Issue Date," with respect to a series of Debentures, means the date
on which the Debentures of such series are originally issued.
"Limited Partnership Agreement" means the Amended and Restated
Limited Partnership Agreement of the Partnership dated as of November 9, 1994,
as it may be amended from time to time.
"Officer" means, with respect to any corporation, the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the
Treasurer, Assistant Treasurer, Secretary or the Assistant Secretary of such
corporation.
"Officer's Certificate" means a written certificate containing the
applicable information specified in Sections 11.04 and 11.05 hereof, signed in
the name of the Company by any one of its Officers, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion containing the
applicable information specified in Sections 11.04 and 11.05 hereof, by legal
counsel who is reasonably acceptable to the Trustee.
"Partnership" means Public Service Electric and Gas Capital, L.P.,
a New Jersey limited partnership, or any successor thereto.
"Paying Agent" means any Person authorized by the Company to pay the
principal of and premium, if any, and interest on the Debentures on behalf of
the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Predecessor Debentures" of any particular Debenture means every
previous Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Debenture; and for purposes of this definition,
any Debenture authenticated and delivered under Section 2.09 hereof in exchange
for or in lieu of a mutilated, destroyed, lost or stolen Debenture shall be
deemed to evidence the same debt as the mutilated, destroyed, lost or stolen
Debenture.
"Preferred Securities" means the limited partner interests issued
from time to time in series by the Partnership.
"Record Date," with respect to any series of the Debentures, means
the Regular Record Date, the Special Record Date or any date set to determine
the Holders of such series entitled to vote, consent, make a request or
exercise any other right associated with such series.
"Redemption Date," with respect to any Debenture to be redeemed,
means the date specified for the redemption of such Debenture in accordance
with the terms thereof and pursuant to Article 3 of this Indenture.
"Redemption Price," with respect to any Debenture to be redeemed,
means the price at which such Debenture is to be redeemed in accordance with
the terms thereof and pursuant to Article 3 of this Indenture.
"Regular Record Date," with respect to an interest payment on the
Debentures of a series, means the date set forth in this Indenture or the
supplemental indenture creating such series for the determination of Holders
entitled to receive payment of interest on the next succeeding Interest Payment
Date.
"SEC" or "Commission" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means all Indebtedness, except for Indebtedness
that is by its terms subordinated to or pari passu with the Debentures.
Notwithstanding anything to the contrary in the foregoing, Senior Indebtedness
shall not include any Indebtedness between or among the Company and any
Affiliates.
"Series A Debentures" means any of the Company's 9-3/8% Deferrable
Interest Subordinated Debentures, Series A issued under this Indenture.
"Series A Preferred Securities" means the limited partner interests
designated 9-3/8% Cumulative Monthly Income Preferred Securities, Series A
issued by the Partnership.
"Special Record Date" for the payment of any Defaulted Interest on
the Debentures of any series means the date determined pursuant to Section 2.03
hereof.
"Special Representative" means a special representative appointed by
the holders of the Preferred Securities pursuant to Section 13.02(d) of the
Limited Partnership Agreement, provided that any appointment of a Special
Representative shall terminate upon the distribution of the Debentures to the
holders of the Preferred Securities (if not previously terminated).
"Stated Maturity Date," with respect to any Debenture, means the date
specified for the Debentures as the fixed date on which the principal of the
Debentures is due and payable.
"Subsidiary" means any corporation, association, partnership or other
business entity of which more than 50% of the total voting power of shares of
Capital Stock or other interests (including partnership interests) entitled
(without regard to the occurrence of any contingency) to vote in the election
of directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by (i) the Company, (ii) the Company and one or more
Subsidiaries, or (iii) one or more Subsidiaries.
"TIA" means the Trust Indenture Act of 1939, as amended and as in
effect on the date of this Indenture; provided, however, that if the TIA is
amended after such date, TIA means, to the extent required by any such
amendment, the TIA as so amended.
"Trust Officer," when used with respect to the Trustee, means the
chairman or vice-chairman of the Board of Directors of the Trustee, the
chairman or vice-chairman of the executive committee of the Board of Directors
of the Trustee, the President, any vice president, any assistant vice
president, any trust officer, senior corporate trust officer or any other
officer of the 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 his or her knowledge of and familiarity with the
particular subject.
"Trustee" means First Fidelity Bank, National Association, until a
successor replaces it pursuant to the applicable provisions of this Indenture
and, thereafter, shall mean such successor.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the issuer's option.
"Voting Stock" means, with respect to a corporation, all classes of
Capital Stock then outstanding of such corporation normally entitled to vote
in elections of directors.
"Wholly Owned Subsidiary" means a Subsidiary all the Capital Stock
of which (other than directors' qualifying shares) is owned by the Company or
another Wholly Owned Subsidiary.
SECTION 1.02 Other Definitions.
TERM DEFINED IN SECTION
-------------------- ------------------
"Act"...................................... 1.05
"Bankruptcy Law"........................... 6.01
"Custodian"................................ 6.01
"Defaulted Interest"....................... 2.03
"Depositary"............................... 2.12
"global Debenture"......................... 2.12
"Legal Holiday"............................ 11.08
"Notice of Default"........................ 6.01
"Register"................................. 2.05
"Registrar"................................ 2.05
"Successor"................................ 5.01
SECTION 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Debentures.
"indenture security holder" means a Debentureholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any other
obligor on the Debentures.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
SECTION 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) A term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including, without limitation;
(5) words in the singular include the plural, and words in the
plural include the singular; and
(6) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article,
Section or other subdivision.
SECTION 1.05 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 an agent
duly appointed in writing or by the Special Representative and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to 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 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 Debentures shall be proved by the Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Debenture shall bind every future
Holder of the same Debenture and the Holder of every Debenture 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 action is made
upon such Debenture.
(e) If the Company solicits 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 resolution of its Board of Directors,
fix in advance a Record Date for the determination of Holders 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
Holders 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 Debentures have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the outstanding Debentures shall be computed
as of such Record Date.
ARTICLE 2
THE DEBENTURES; THE SERIES A DEBENTURES
SECTION 2.01 Issue of Debentures Generally.
The aggregate principal amount of the Debentures which may be
authenticated and delivered under this Indenture is limited to the sum of the
aggregate stated liquidation preference of the Preferred Securities and the
aggregate capital contribution of the General Partner to the Partnership.
The Debentures may be issued in one or more series as from time to
time shall be authorized by the Board of Directors.
The Debentures of each series and the Trustee's Certificate of
Authentication shall be substantially in the forms to be attached as exhibits
to the Indenture or supplemental indenture creating such series, but in the
case of Debentures other than the Series A Debentures, with such inclusions,
omissions and variations as to letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Indenture, or as may be required
to comply with any law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any securities exchange on which the Debentures
may be listed, or to conform to usage.
The several series of Debentures may differ from the Series A
Debentures, and as and between series, in respect of any or all of the
following matters:
(a) designation;
(b) Stated Maturity Date or Dates, which may be serial;
(c) interest rate or method of determination of the interest rate
and whether Additional Interest will be payable;
(d) the basis upon which interest shall be computed if other than
a 360-day year composed of twelve 30-day months;
(e) Interest Payment Dates and the Regular Record Dates therefor;
(f) Issue Date or Dates and interest accrual provisions;
(g) authorized denominations;
(h) the place or places for the payment of principal (and premium,
if any) and interest;
(i) the aggregate principal amount of Debentures of such series
which may be issued;
(j) the optional and mandatory redemption provisions, if any;
(k) provisions, if any, for any sinking or analogous fund with
respect to the Debentures of such series; and
(l) any other provisions expressing or referring to the terms and
conditions upon which the Debentures of such series are to be
issued under this Indenture which are not in conflict with the
provisions of this Indenture;
in each case as determined by the Board of Directors and specified in the
supplemental indenture creating such series.
SECTION 2.02 Terms and Form of the Series A Debentures.
The Series A Debentures shall be designated "Public Service Electric
and Gas Company 9-3/8% Deferrable Interest Subordinated Debentures, Series A."
The Series A Debentures and the Trustee's Certificate of Authentication shall
be substantially in the form of Exhibit A attached hereto. The terms and
provisions contained in the Series A Debentures shall constitute, and are
hereby expressly made, a part of this Indenture. The Company and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such
terms and provisions and to be bound thereby.
The aggregate principal amount of Series A Debentures outstanding at
any time may not exceed $154,639,176 except as provided in Section 2.09 hereof
to be initially authenticated and delivered from time to time upon delivery to
the Trustee of the items specified in Section 2.04(d) hereof.
The Stated Maturity Date of the Series A Debentures is November 17,
2043. The interest rate of the Series A Debentures is 9-3/8% per annum plus
Additional Interest, if any.
The Interest Payment Dates for the Series A Debentures are the last
calendar day of each month of each year commencing November 30, 1994. In the
event that any date on which interest is payable on the Series A Debentures is
not a Business Day, then payment of interest payable on such date will be made
on the next day which 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. The Regular Record Date for each Interest Payment
Date for the Series A Debentures shall be the 15th day of each month, provided
that if the Partnership is the sole Holder of the Series A Debentures or the
Series A Debentures are issued in book-entry-only form, the Regular Record Date
shall be the close of business on the Business Day next preceding such Interest
Payment Date.
Each Series A Debenture shall bear interest from its Issue Date or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for with respect to such Series A Debenture; except that, so long
as there is no existing Defaulted Interest or Extension Period on the Series
A Debentures, any Series A Debenture authenticated by the Trustee between the
Regular Record Date for any Interest Payment Date and such Interest Payment
Date shall bear interest from such Interest Payment Date.
Overdue principal of and interest on any Series A Debenture and
interest which has been deferred pursuant to Section 4.01(b) hereof shall bear
interest (to the extent that the payment of such interest shall be legally
enforceable) at a rate per annum equal to the interest rate per annum,
including Additional Interest, if any, payable on such Series A Debenture.
The Series A Debentures shall be issuable only in registered form
without coupons and only in denominations of $25 and any integral multiple
thereof.
SECTION 2.03 Payment of Principal and Interest.
Unless otherwise specified pursuant to Section 2.01(d), interest on
the Debentures shall be computed on the basis of a 360-day year composed of
twelve 30-day months, and for any period shorter than thirty days, interest
will be computed on the basis of the actual number of days elapsed in such
period.
Unless otherwise provided with respect to a series of Debentures,
(i) the principal and Redemption Price of and interest on each
Debenture shall be payable in such coin or currency of the
United States of America as at the time of payment is legal
tender for the payment of public and private debts;
(ii) the principal and Redemption Price of any Debenture and interest
payable on the Stated Maturity Date (if other than an Interest
Payment Date) or Redemption Date shall be payable, upon
surrender of such Debenture at the office or agency of any
Paying Agent therefor; and
(iii) interest on any Debenture on each Interest Payment Date therefor
shall be payable by check mailed to the address of the Person
entitled thereto as such address appears on the Register;
provided that, at the written request of the Holder of at least
$10,000,000 aggregate principal amount of Debentures received
by the Registrar not later than the Regular Record Date for such
Interest Payment Date, interest accrued on such Debenture will
be payable by wire transfer within the continental United States
in immediately available funds to the bank account number of
such Holder specified in such request and entered on the
Register by the Registrar.
Except as specified pursuant to Section 2.01 or Section 4.01(b)
hereof, interest on any Debenture 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 Debenture (or one or more Predecessor Debentures) is registered
at the close of business on the Regular Record Date for such interest. Any
interest on any Debenture 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 Holder on the relevant Regular
Record Date by virtue of having been such Holder, and such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in Clause
(1) and (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Debentures (or their respective Predecessor
Debentures) 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, not less than 15 Business Days prior to
the date of the proposed payment, notify the Trustee and the Paying Agent in
writing of the amount of Defaulted Interest proposed to be paid on each
Debenture and the date of the proposed payment, and at the same time the
Company shall deposit with the Paying Agent 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 Paying Agent 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 provided. The Special Record Date for the payment of such
Defaulted Interest shall be the close of business on the tenth calendar day
prior to the date of the proposed payment. The Trustee shall, in the name and
at the expense of the Company, cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be given to the
Holder thereof, not less than 7 calendar days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been given, such Defaulted Interest shall
be paid to the Persons in whose names the Debentures (or their respective
Predecessor Debentures) 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 any Defaulted Interest on the
Debentures in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Debentures may be listed, and upon
such notice as may be required by such exchange, if, after notice given by the
Company to the Trustee and the Paying Agent of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Paying Agent.
Subject to the foregoing provisions of this Section, each Debenture
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Debenture shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Debenture.
SECTION 2.04 Execution, Authentication and Delivery.
(a) The Debentures shall be executed on behalf of the Company by its
Chief Executive Officer, its President or one of its Vice Presidents, under its
corporate seal imprinted or reproduced thereon and attested by its Secretary
or one of its Assistant Secretaries. The signature of any such Officer on the
Debentures may be manual or facsimile.
(b) Debentures bearing the manual or facsimile signatures of
individuals who were at any time the proper Officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Debentures or did not hold such offices at the date of such Debentures.
(c) No Debenture shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Debenture a Certificate of Authentication duly executed by the Trustee by
manual signature of a Trust Officer, and such Certificate of Authentication
upon any Debenture shall be conclusive evidence, and the only evidence, that
such Debenture has been duly authenticated and made available for delivery
hereunder.
(d) The Trustee shall authenticate and deliver Debentures of a
series, for original issue, at one time or from time to time in accordance with
the Company Order referred to below, upon receipt by the Trustee of:
(1) a Board Resolution approving the form or forms and terms
of such series;
(2) a Company Order requesting the authentication and delivery
of such Debentures and stating the sum of the aggregate stated
liquidation preference of the Preferred Securities to be issued
concurrently with such Debentures plus the aggregate capital
contribution to be made by the General Partner to the Partnership
concurrently with the issuance of such Debentures;
(3) unless previously delivered, an indenture supplement hereto
setting forth the form of such Debentures and establishing the terms
thereof;
(4) the Debentures of such series, executed on behalf of the
Company in accordance with Section 2.04(a) hereof;
(5) an Opinion of Counsel to the effect that:
(i) the form or forms of such Debentures have been duly
authorized by the Company and have been established in
conformity with the provisions of this Indenture; and
(ii) such Debentures, when authenticated and delivered by
the Trustee and issued and delivered by the Company in the
manner and subject to any conditions specified in such Opinion
of Counsel, will have been duly issued under this Indenture
and will constitute valid and legally binding obligations of
the Company, entitled to the benefits provided by
this Indenture, and enforceable in accordance with their terms,
subject, as to enforcement to laws relating to or affecting
generally the enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency laws and to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and
(iii) that any supplemental indenture referred to in clause
(3) above has been duly authorized, executed and delivered by
the Company and is a valid instrument legally binding upon the
Company, enforceable in accordance with its terms, subject as
to enforcement to laws relating to or affecting creditors'
rights, including, without limitation, bankruptcy and insolvency
laws and to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or
at law); and
(iv) that all consents, approvals and orders of any
commission, governmental authority or agency required in
connection with the issuance and sale of the Debentures have
been obtained.
(e) an Officer's Certificate certifying that no Default or Event of
Default has occurred and is continuing.
(f) The Trustee shall act as the initial authenticating agent.
Thereafter, the Trustee may appoint an authenticating agent. An authenticating
agent may authenticate Debentures whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. The Trustee shall pay any authenticating agent
appointed by the Trustee reasonable compensation for its services and the
Trustee shall be reimbursed for such payment by the Company pursuant to Section
7.07 hereof. The provisions set forth in Section 7.02, Section 7.03, Section
7.04 and Section 7.07 hereof shall be applicable to any authenticating agent.
SECTION 2.05 Registrar and Paying Agent.
The Company shall maintain or cause to be maintained, within or
outside the State of New Jersey, an office or agency where the Debentures may
be presented for registration of transfer or for exchange ("Registrar"), an
office or agency where Debentures may be presented or surrendered for payment
("Paying Agent"), and an office or agency where notices and demands to or upon
the Company in respect of the Debentures and this Indenture may be served. The
Registrar shall keep a register (the "Register") of the Debentures and of their
transfer and exchange. The Company may have one or more co-Registrars and one
or more additional Paying Agents. The term Registrar includes any additional
registrar and the term Paying Agent includes any additional paying agent. The
corporate trust office of the Trustee in Newark, New Jersey, shall initially
be the Registrar for the Series A Debentures and agent for service of notice
or demands on the Company, and the Trustee shall initially be the Paying Agent
for the Series A Debentures.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-Registrar (if not the Company or the Trustee or
an affiliate of the Trustee). The agreement shall implement the provisions of
this Indenture that relate to such agent. The Company shall give prompt
written notice to the Trustee of any change of location of such office or
agency. If at any time the Company shall fail to maintain or cause to be
maintained 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 address of the Trustee set forth in
Section 11.02 hereof. The Company shall notify the Trustee of the name and
address of any such agent. If the Company fails to maintain a Registrar,
Paying Agent or agent for service of notices or demands, the Trustee shall act
as such and shall be entitled to appropriate compensation therefor pursuant to
Section 7.07 hereof. The Company or any Affiliate of the Company may act as
Paying Agent, Registrar or co-Registrar or agent for service of notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Debentures may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in location of any such other
office or agency.
SECTION 2.06 Paying Agent to Hold Money in Trust.
Except as otherwise provided herein, prior to or on each due date of
the principal of and premium (if any) and interest on any Debenture, the
Company shall deposit with the Paying Agent a sum of money sufficient to pay
such principal, premium (if any) and interest so becoming due. The Company
shall require each Paying Agent (other than the Trustee or the Company) to
agree in writing that such Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal of and premium (if any) and interest on the Debentures and shall
notify the Trustee of any Default by the Company in making any such payment.
At any time during the continuance of any such Default, the Paying Agent shall,
upon the request of the Trustee, forthwith pay to the Trustee all money so held
in trust and account for any money disbursed by it. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee and to
account for any money disbursed by it. Upon doing so, the Paying Agent shall
have no further liability for the money so paid over to the Trustee. If the
Company, a Subsidiary or an Affiliate of either of them acts as Paying Agent,
it shall segregate the money held by it as Paying Agent and hold it as a
separate trust fund.
SECTION 2.07 Debentureholder 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
Debentureholders. If the Trustee is not the Registrar, the Company shall cause
to be furnished to the Trustee on or before the Record Date for each Interest
Payment Date and at such other times as the Trustee may request in writing,
within five Business Days of such request, a list, in such form as the Trustee
may reasonably require of the names and addresses of Debentureholders.
SECTION 2.08 Transfer and Exchange.
When Debentures are presented to the Registrar or a co-Registrar with
a request to register the transfer or to exchange them for an equal principal
amount of Debentures of the same series of other authorized denominations, the
Registrar shall register the transfer or make the exchange as requested if its
reasonable requirements for such transactions are met. To permit registrations
of transfer and exchanges, the Company shall execute and the Trustee shall
authenticate Debentures, all at the Registrar's request.
Every Debenture presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Registrar duly executed by the Holder or his attorney duly
authorized in writing.
The Company shall not require payment of a service charge for any
registration of transfer or exchange of Debentures, but the Company may require
payment of a sum sufficient to pay all taxes, assessments or other governmental
charges that may be imposed in connection with the registration of the transfer
or exchange of Debentures from the Debentureholder requesting such transfer or
exchange (other than any exchange of a temporary Debenture for a definitive
Debenture not involving any change in ownership).
The Company shall not be required to make, and the Registrar need not
register, transfers or exchanges of (a) any Debenture for a period beginning
at the opening of business 15 days before the mailing of a notice of redemption
of Debentures and ending at the close of business on the day of such mailing
or (b) any Debenture selected, called or being called for redemption, except,
in the case of any Debenture to be redeemed in part, the portion thereof not
to be redeemed.
SECTION 2.09 Replacement Debentures.
If (a) any mutilated Debenture is surrendered to the Company or the
Trustee, or (b) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Debenture, and there is
delivered to the Company and the Trustee such Debenture or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Company or the Trustee that such Debenture has been acquired by a bona
fide purchaser, the Company shall execute in exchange for any such mutilated
Debenture or in lieu of any such destroyed, lost or stolen Debenture, a new
Debenture of the same series and of like tenor and principal amount, bearing
a number not contemporaneously outstanding, and the Trustee shall authenticate
and make such new Debenture available for delivery.
In case any such mutilated, destroyed, lost or stolen Debenture has
become or is about to become due and payable, or is about to be redeemed by the
Company pursuant to Article 3 hereof, the Company in its discretion may,
instead of issuing a new Debenture, pay or purchase such Debenture, as the case
may be.
Upon the issuance of any new Debentures under this Section 2.09, 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) in connection
therewith.
Every new Debenture issued pursuant to this Section 2.09 in lieu of
any mutilated, destroyed, lost or stolen Debenture shall constitute an original
additional contractual obligation of the Company (whether or not the mutilated,
destroyed, lost or stolen Debenture shall be at any time enforceable) by
anyone, and shall be entitled to all benefits of this Indenture equally and
ratably with any and all other Debentures duly issued hereunder.
The provisions of this Section 2.09 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 Debentures.
SECTION 2.10 Outstanding Debentures; Determinations of Holders' Action.
Debentures outstanding at any time are all the Debentures
authenticated by the Trustee except for those canceled by it, those delivered
to it for cancellation, those mutilated, destroyed, lost or stolen Debentures
referred to in Section 2.09 hereof, those redeemed by the Company pursuant to
Article 3 hereof, and those described in this Section 2.10 as not outstanding.
A Debenture does not cease to be outstanding because the Company or a
Subsidiary or Affiliate thereof holds the Debenture; provided, however, that
in determining whether the Holders of the requisite principal amount of
Debentures have given or concurred in any request, demand, authorization,
direction, notice, consent or waiver hereunder, Debentures owned by the Company
or a Subsidiary or Affiliate (other than the Partnership, so long as any of its
Preferred Securities are outstanding) shall be disregarded and deemed not to
be outstanding.
Subject to the foregoing, only Debentures outstanding at the time of
such determination shall be considered in any such determination (including
determinations pursuant to Articles 3, 6 and 9).
If a Debenture is replaced pursuant to Section 2.09 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Debenture is held by a bona fide purchaser.
If the Paying Agent (other than the Company) holds, in accordance
with this Indenture, at the Stated Maturity Date or on a Redemption Date, money
sufficient to pay the Debentures payable on that date, then immediately on the
Stated Maturity Date or such Redemption Date, as the case may be, such
Debentures shall cease to be outstanding, and interest, if any, on such
Debentures shall cease to accrue.
SECTION 2.11 Temporary Debentures.
So long as the Partnership is the sole Holder of the Debentures, the
Company may execute temporary Debentures, and upon the Company's Order, the
Trustee shall authenticate and make such temporary Debentures available for
delivery. Temporary Debentures shall be printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination, in the same
series and principal amount and of like tenor as the definitive Debentures in
lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the Officers of the Company executing
such Debentures may determine, as conclusively evidenced by their execution of
such Debentures.
After the preparation of definitive Debentures, the temporary
Debentures shall be exchangeable for definitive Debentures of the same series
upon surrender of the temporary Debentures at the office or agency of the
Company designated for such purpose pursuant to Section 2.05 hereof, without
charge to the Holders thereof. Upon surrender for cancellation of any one or
more temporary Debentures, the Company shall execute a like principal amount
of definitive Debentures of the same series of authorized denominations, and
the Trustee, upon written request of the Company signed by two Officers of the
Company, shall authenticate and make such Debentures available for delivery in
exchange therefor. Until so exchanged, the temporary Debentures shall in all
respects be entitled to the same benefits under this Indenture as definitive
Debentures.
SECTION 2.12 Book Entry System.
If the Partnership is not the sole Holder of the Debentures, in order
to utilize a book-entry-only system for all or any portion of the Debentures
of any series, all or a portion of the Debentures of any series may be issued
in the form of one or more fully registered Debentures of the same series for
the aggregate principal amount of such Debentures of each Issue Date, interest
rate and Stated Maturity Date (a "global Debenture"), which global Debenture
shall be registered in the name of the depositary (the "Depositary") selected
by the Company or in the name of such Depositary's nominee. Each global
Debenture shall be delivered by the Trustee to the Depositary or pursuant to
the Depositary's instruction and shall bear a legend substantially to the
following effect: "Except as otherwise provided in Section 2.12 of the
Indenture, this Debenture may be transferred, in whole but not in part, only
to another nominee of the Depositary or to a successor Depositary or to a
nominee of such successor Depositary."
Notwithstanding any other provision of this Section 2.12 or of
Section 2.08 hereof, a global Debenture may be transferred in whole but not in
part and in the manner provided in Section 2.08 hereof, only by a nominee of
the Depositary for such series, or by the Depositary or any such nominee of a
successor Depositary for such series selected or approved by the Company or to
a nominee of such successor Depositary.
If at any time the Depositary for global Debentures of any series of
Debentures notifies the Company that it is unwilling or unable to continue as
Depositary for such global Debentures or if at any time the Depositary for such
global Debentures shall no longer be registered or in good standing under the
Exchange Act or other applicable statute or regulation, and a successor
Depository for such global Debentures is not appointed by the Company within
90 days after the Company receives such notice or becomes aware of such
condition, as the case may be, then this Section 2.12 shall no longer be
applicable to the global Debentures of such series and the Company will
execute, and the Trustee will authenticate and deliver, Debentures of such
series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the global Debentures of such series in exchange for such global
Debentures. In addition, the Company may at any time determine, in its sole
discretion, that the Debentures of any series shall no longer be represented
by one or more global Debentures and that the provisions of this Section 2.12
shall no longer apply to the Debentures of such series. In such event the
Company will execute and the Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Company, will authenticate and deliver
Debentures of such series and of like tenor in definitive registered form, in
authorized denominations, and in aggregate principal amount equal to the
principal amount of the global Debentures of such series in exchange for such
global Debentures. Upon the exchange of global Debentures for such Debentures
in definitive registered form without coupons, in authorized denominations, the
global Debentures shall be cancelled by the Trustee. Such Debentures in
definitive registered form issued in exchange for global Debentures pursuant
to this Section 2.12 shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Debentures to the Person in whose names such Debentures are
so registered.
Except as provided above, owners solely of beneficial interests in
a global Debenture shall not be entitled to receive physical delivery of
Debentures in definitive form and will not be considered the Holders thereof
for any purpose under this Indenture.
Members of or participants in the Depositary shall have no rights
under this Indenture with respect to any global Debenture held on their behalf
by the Depositary, and such Depositary or its nominee, as the case may be, may
be treated by the Company, the Trustee, and any agent of the Company or the
Trustee as the Holder of such global Debentures for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee, or any agent of the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its members or participants, the
operation of customary practices governing the exercise of the rights of a
Holder of any Debenture, including without limitation the granting of proxies
or other authorization of participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a
Holder is entitled to give or take under this Indenture.
SECTION 2.13 Cancellation.
All Debentures surrendered for payment, redemption by the Company
pursuant to Article 3 hereof or registration of transfer or exchange shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by the Trustee. The Company may at any time
deliver to the Trustee for cancellation any Debentures previously authenticated
and made available for delivery hereunder which the Company may have acquired
in any manner whatsoever, and all Debentures so delivered shall be promptly
canceled by the Trustee. The Company may not reissue or issue new Debentures
to replace Debentures it has paid or delivered to the Trustee for cancellation.
No Debentures shall be authenticated in lieu of or in exchange for any
Debentures canceled as provided in this Section 2.13, except as expressly
permitted by this Indenture. All canceled Debentures held by the Trustee shall
be destroyed by the Trustee, and the Trustee shall deliver a certificate of
destruction to the Company.
ARTICLE 3
REDEMPTION
SECTION 3.01 Redemption; Notice to Trustee.
(a) The Series A Debentures are subject to redemption prior to
maturity as provided therein.
(b) The redemption terms for any additional series of Debentures
shall be as specified in the supplemental indenture creating such series of
Debentures; provided that each series of Debentures shall be subject to
mandatory redemption upon the dissolution and winding up of the Partnership,
unless, in connection therewith, the Debentures are distributed to the holders
of the Preferred Securities.
(c) If any or all of the Debentures are to be redeemed pursuant to
Section 3.01 (a) or (b) hereof, the Company shall deliver to the Trustee at
least 45 days prior to the Redemption Date a Company Order specifying the
series and principal amount of Debentures to be redeemed and the Redemption
Date and Redemption Price for such Debentures. Such Company Order shall be
accompanied by a Board Resolution authorizing such redemption.
SECTION 3.02 Selection of Debentures to be Redeemed.
If less than all the outstanding Debentures are to be redeemed at any
time, the Trustee shall select the Debentures to be redeemed by lot or by any
other method the Trustee considers fair and appropriate. The Trustee shall
make the selection at least 30 but not more than 60 days before the Redemption
Date from outstanding Debentures not previously called for redemption.
Provisions of this Indenture that apply to Debentures called for redemption
also apply to portions of Debentures called for redemption. The Trustee shall
notify the Company promptly of the Debentures or portions of Debentures to be
redeemed.
SECTION 3.03 Notice of Redemption.
At least 30 days but not more than 60 days before the Redemption
Date, the Trustee, in the Company's name and at the Company's expense, shall
mail or cause to be mailed a notice of redemption by first-class mail, postage
prepaid, to each Holder of Debentures to be redeemed at such Holder's last
address as it appears in the Register.
The notice of redemption shall identify the Debentures to be
redeemed, the provision of the Debentures or this Indenture pursuant to which
the Debentures called for redemption are being redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that payment of the Redemption Price of Debentures called for
redemption will be made only upon surrender of such Debentures to the Paying
Agent;
(5) if fewer than all the outstanding Debentures of any series are
to be redeemed, the identification and principal amounts of the particular
Debentures to be redeemed and that, on and after the Redemption Date, upon
surrender of such Debentures, a new Debenture or Debentures of the same series
and of like tenor and in a principal amount equal to the unredeemed portion
thereof will be issued; and
(6) that, unless the Company defaults in paying the Redemption Price
of the Debentures called for Redemption, plus accrued interest thereon to the
Redemption Date, interest will cease to accrue on such Debentures on and after
the Redemption Date.
Any notice of redemption given in the manner provided herein shall
be conclusively presumed to have been given, whether or not such notice is
actually received. Failure to mail any notice or defect in the mailed notice
or the mailing thereof in respect of any Debenture shall not affect the
validity of the redemption of any other Debenture.
SECTION 3.04 Effect of Notice of Redemption.
If notice of redemption is required as set forth in Section 3.03
hereof, and after notice of redemption has been given, Debentures called for
redemption shall become due and payable on the Redemption Date and at the
Redemption Price and from and after the Redemption Date (unless the Company
shall default in the payment of the Redemption Price and accrued interest),
such Debentures shall cease to bear interest. Upon the later of the Redemption
Date and the date such Debentures are surrendered to the Paying Agent, such
Debentures shall be paid at the Redemption Price, plus accrued interest to the
Redemption Date, provided that installments of interest on Debentures with an
Interest Payment Date which is on or prior to the Redemption Date shall be
payable to the Holders of such Debentures, or one or more Predecessor
Debentures, registered as such at the close of business on the Regular Record
Dates therefor according to their terms and provisions.
SECTION 3.05 Deposit of Redemption Price.
On or prior to the Redemption Date, the Company shall deposit with
the Paying Agent (or if the Company or an Affiliate is the Paying Agent, shall
segregate and hold in trust or cause such Affiliate to segregate and hold in
trust) money sufficient to pay the Redemption Price of, and accrued interest
on, all Debentures to be redeemed on that date. The Paying Agent shall return
to the Company any money in excess of the amount sufficient to pay the
Redemption Price of, and accrued interest on, all Debentures to be redeemed and
any interest accrued on the amount deposited pursuant to this Section 3.05.
SECTION 3.06 Debentures Redeemed in Part.
Upon surrender of a Debenture that is redeemed in part, the Trustee
shall authenticate for the Holder a new Debenture of the same series and in a
principal amount equal to the unredeemed portion of such Debenture.
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Debentures.
(a) The Company shall pay the principal of and premium, if any, and
interest (including interest accruing on or after the filing of a petition in
bankruptcy or reorganization relating to the Company, whether or not a claim
for post-filing interest is allowed in such proceeding) on the Debentures on
(or prior to) the dates and in the manner provided in the Debentures or
pursuant to this Indenture. An installment of principal, premium, if any, or
interest shall be considered paid on the applicable due date if on such date
the Trustee or the Paying Agent holds, in accordance with this Indenture, money
sufficient to pay all of such installment then due. The Company shall pay
interest on overdue principal and interest on overdue installments of interest
(including interest accruing during an Extension Period and/or on or after the
filing of a petition in bankruptcy or reorganization relating to the Company,
whether or not a claim for post-filing interest is allowed in such proceeding),
to the extent lawful, at the rate per annum plus Additional Interest, if any,
borne by the Debentures, which interest on overdue interest shall accrue from
the date such amounts became overdue.
(b) Notwithstanding the provisions of Section 4.01(a) hereof or any
other provision herein to the contrary, the Company shall have the right in its
sole and absolute discretion at any time and from time to time while the
Debentures are outstanding, so long as an Event of Default has not occurred and
is continuing, to extend the interest payment period for up to 60 consecutive
months, provided that such extended interest period shall not extend beyond the
Stated Maturity Date or Redemption Date of any Debenture, and provided further
that at the end of each Extension Period the Company shall pay all interest
then accrued and unpaid (together with interest thereon to the extent permitted
by applicable law at the rate per annum borne by the Debentures). Prior to the
termination of an Extension Period, the Company may shorten or may further
extend the interest payment period, provided that such Extension Period
together with all such previous and further extensions may not exceed 60
consecutive months. The Company shall give the Trustee notice of its selection
of such extended or shortened interest payment period at least one Business Day
prior to the date the Partnership or the Company is required to give notice of
the record or payment date of the related distribution on the Preferred
Securities or payment of interest on the Debentures to any national securities
exchange on which the Preferred Securities or the Debentures are then listed
or other applicable self-regulatory organization, but in any event not less
than two Business Days prior to the Record Date fixed by the Company for the
payment of such interest. If the Partnership is the sole holder of the
Debentures, the Company shall cause the Partnership to give notice of the
Company's selection of such extended interest payment period to the holders of
the Preferred Securities by first class mail, postage prepaid. If the
Partnership is not the sole Holder of the Debentures, the Company shall give
or cause the Trustee to give notice (a form of which shall be provided by the
Company to the Trustee) of the Company's selection of such extended interest
payment period to the Holders by first class mail, postage prepaid.
SECTION 4.02 Prohibition Against Dividends, etc.
The Company shall not declare or pay any dividend on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of its
Capital Stock (i) during an Extension Period, (ii) if at such time there shall
have occurred any Default or Event of Default, or (iii) if the Company shall
be in default with respect to its payment or other obligations under the
Guarantee Agreement.
SECTION 4.03 SEC Reports.
The Company shall file with the Trustee, within 15 days after it
files them with the SEC, copies of its annual report and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which the Company is
required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act. If the Company is not subject to the reporting requirements of Section
13 or 15(d) of the Exchange Act, the Company shall file with the Trustee such
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) which are
specified in Sections 13 or 15(d) of the Exchange Act. The Company shall also
comply with the provisions of Section 314(a) of the TIA.
SECTION 4.04 Compliance Certificates.
(a) The Company shall deliver to the Trustee, within 90 days after
the end of each of the Company's fiscal years, an Officer's Certificate stating
whether or not the signer knows of any Default or Event of Default. Such
certificate shall contain a certification from the principal executive officer,
principal financial officer or principal accounting officer of the Company as
to his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this Section 4.04(a), such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture. If such Officer does know
of such a Default or Event of Default, the Officer's Certificate shall describe
any such Default or Event of Default, and its status. Such Officer's
Certificate need not comply with Sections 11.04 and 11.05 hereof.
(b) The Company shall deliver to the Trustee any information
reasonably requested by the Trustee in connection with the compliance by the
Trustee or the Company with the TIA.
SECTION 4.05 Relationship with the Partnership.
In the event that the Company has transferred its general partner
interests in the Partnership to any Wholly Owned Subsidiary, the Company agrees
(i) to maintain direct or indirect (through a Wholly Owned Subsidiary) 100%
ownership of the General Partner and will cause the General Partner to maintain
100% ownership of the general partnership interests in the Partnership; (ii)
to cause the General Partner to maintain a fair market value net worth of at
least 10% of the total capital contributions less redemptions to the
Partnership and to contribute capital to the Partnership in an aggregate amount
equal to 3% of the aggregate capital contributed to the Partnership; (iii) to
cause the General Partner to timely perform all of its duties as General
Partner of the Partnership (including the duty to pay distributions on the
Preferred Securities to the extent the Partnership has funds legally available
therefor); and (iv) to use its reasonable efforts to cause the Partnership to
remain a limited partnership and otherwise continue to be treated as a
partnership for United States federal income tax purposes.
SECTION 4.06 Further Instruments and Acts.
Upon request of the Trustee, the Company shall execute and deliver
such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purposes of this
Indenture.
SECTION 4.07 Payments for Consents.
Neither the Company nor any Subsidiary shall, directly or indirectly,
pay or cause to be paid any consideration, whether by way of interest, fee or
otherwise, to any Holder of any Debentures for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Debentures unless such consideration is offered to be paid or
agreed to be paid to all Holders of the Debentures who so consent, waive or
agree to amend in the time frame set forth in the documents soliciting such
consent, waiver or agreement.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 When the Company May Merge, Etc.
The Company may not consolidate with or merge with or into, or sell,
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety (either in one transaction or a series of
transactions) to, any Person unless:
(1) the Person formed by or surviving such consolidation or merger
or to which such sale, conveyance, transfer or lease shall have been made (the
"Successor") if other than the Company, (a) is organized and existing under the
laws of the United States of America or any State thereof or the District of
Columbia, and (b) shall expressly assume by a supplemental indenture, executed
and delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Debentures and the Indenture;
(2) immediately prior to and after giving effect to such transaction
(and treating any Indebtedness which becomes an obligation of the Successor
Person or any Subsidiary as a result of such transaction as having been
incurred by such Person or such Subsidiary at the time of such transaction),
no Default or Event of Default shall have occurred and be continuing; and
(3) the Company delivers to the Trustee an Officer's Certificate and
an Opinion of Counsel, each stating that such consolidation, merger, sale,
conveyance, transfer or lease and such supplemental indenture comply with this
Indenture.
The Successor will be the successor to the Company, and will be
substituted for, and may exercise every right and power and become the obligor
on the Debentures with the same effect as if the Successor had been named as
the Company herein but, in the case of a sale, conveyance, transfer or lease
of all or substantially all of the assets of the Company, the predecessor
Company will not be released from its obligation to pay the principal of and
premium, if any, and interest on the Debentures.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default.
An "Event of Default" occurs if one of the following shall have
occurred and be continuing:
(1) The Company defaults in the payment, when due and payable, of
(a) interest, including Additional Interest, on any Debenture and the default
continues for a period of 10 days; provided, that during an Extension Period,
failure to pay interest on the Debentures shall not constitute a Default or
Event of Default hereunder, or (b) the principal of or premium, if any, on any
Debentures when the same becomes due and payable on the Stated Maturity Date
thereof, upon acceleration, on any Redemption Date, or otherwise;
(2) The Company defaults in the performance of or fails to comply
with any of its other covenants or agreements in the Debentures or this
Indenture and such failure continues for 60 days after receipt by the Company
of a "Notice of Default";
(3) The Company, pursuant to or within the meaning of any Bankruptcy
Law:
(a) commences a voluntary case or proceeding;
(b) consents to the entry of an order for relief against it in
an involuntary case or proceeding;
(c) consents to the appointment of a Custodian of it or for all
or substantially all of its property, and such Custodian
is not discharged within 60 days;
(d) makes a general assignment for the benefit of its
creditors; or
(e) admits in writing its inability to pay its debts generally
as they become due; or
(4) 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
or proceeding;
(b) appoints a Custodian of the Company for all or
substantially all of its properties;
(c) orders the liquidation of the Company;
(d) and in each case the order or decree remains unstayed and
in effect for 60 days.
The foregoing will constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
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.
The term "Bankruptcy Law" means Title 11, United States Code, or any
similar federal or state law for the relief of debtors. "Custodian" means any
receiver, trustee, assignee, liquidator, sequestrator, custodian or similar
official under any Bankruptcy Law.
A Default under clause (2) above is not an Event of Default until (i)
the Trustee provides a "Notice of Default" to the Company or the Holders of at
least a majority in aggregate principal amount of the Debentures at the time
outstanding or the Special Representative provides a "Notice of Default" to the
Company and the Trustee of the Default and (ii) the Company does not cure such
Default within the time specified in clause (2) above after receipt of such
notice. Any such notice must specify the Default, demand that it be remedied
and state that such notice is a "Notice of Default."
SECTION 6.02 Acceleration.
If any Event of Default other than an Event of Default under clause
(3) or (4) of Section 6.01 hereof occurs and is continuing, the Trustee, the
Holders of not less than 25% in principal amount of the Debentures then
outstanding or the Special Representative may declare the principal of all such
Debentures due and payable. Upon such a declaration, such principal and
interest shall be due and payable immediately.
If an Event of Default specified in clause (3) or (4) of Section 6.01
hereof occurs, the principal of and interest on all the Debentures shall ipso
facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee, any Debentureholders or the Special
Representative.
After such a declaration, (i) if the Partnership is the sole Holder
of the Debentures, the Special Representative, if one has been appointed, or,
if no Special Representative has been appointed, the Partnership, at the
direction of the holders of 66 % of the aggregate stated liquidation preference
of the Preferred Securities, or (ii) if the Partnership is not the sole Holder
of the Debentures, the Holders of at least 66 % in aggregate principal amount
of the Debentures at the time outstanding, in each case, by notice to the
Trustee, may rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if all existing Events of
Default have been cured or waived except nonpayment of principal or interest
that has become due solely because of acceleration. No such rescission shall
affect any subsequent Default or impair any right consequent thereto.
SECTION 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may, in
its own name or as trustee of an express trust, institute, pursue and prosecute
any proceeding, including, without limitation, any action at law or suit in
equity or other judicial or administrative proceeding to collect the payment
of principal of or premium, if any, or interest on the Debentures, to enforce
the performance of any provision of the Debentures or this Indenture or to
obtain any other available remedy.
The Trustee may maintain a proceeding even if it does not possess any
of the Debentures or does not produce any of the Debentures in the proceeding.
A delay or omission by the Trustee, the Special Representative or any
Debentureholder in exercising any right or remedy accruing upon an Event of
Default shall not impair such right or remedy or constitute a waiver of, or
acquiescence in, such Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
SECTION 6.04 Waiver of Past Defaults.
If a Default or Event of Default has occurred and is continuing, (i)
if the Partnership is the sole Holder of the Debentures, the Special
Representative or, if no Special Representative has been appointed, the
Partnership, at the direction of the holders of 66 % of the aggregate stated
liquidation preference of the Preferred Securities, or (ii) if the Partnership
is not the sole Holder of the Debentures, the Holders of at least 66 % in
aggregate principal amount of the Debentures at the time outstanding, in each
case by notice to the Trustee, the Company and the Partnership (if the
Partnership, at such time, holds any Debentures), may waive an existing Default
or Event of Default and its consequences except a Default or Event of Default
in the payment of the principal or premium, if any, or interest on any
Debenture. When a Default or Event of Default is waived, it is deemed cured
and shall cease to exist, but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any consequent right.
SECTION 6.05 Control by Majority or the Special Representative.
If an Event of Default has occurred and is continuing, (i) if the
Partnership is the sole Holder of the Debentures, the Special Representative
or, if no Special Representative has been appointed, the Partnership, at the
direction of the holders of 66 % of the aggregate stated liquidation preference
of the Preferred Securities, or (ii) if the Partnership is not the sole Holder
of the Debentures, the Holders of at least 66 % in aggregate principal amount
of the Debentures at the time outstanding, in each case may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or of exercising any trust or power conferred on the Trustee. However,
the Trustee may refuse to follow any direction that conflicts with law or this
Indenture or that the Trustee determines in good faith is unduly prejudicial
to the rights of other Debentureholders or may involve the Trustee in personal
liability. The Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, including withholding notice to
the Holders of the Debentures of continuing default (except in the payment of
the principal (other than any mandatory sinking fund payment) or premium, if
any or interest on any Debentures) if the Trustee considers it in the interest
of the Holders of the Debentures to do so.
SECTION 6.06 Limitation on Suits.
Except as provided in Section 6.07 hereof, neither the Special
Representative nor any Debentureholder may pursue any remedy with respect to
this Indenture or the Debentures unless:
(1) the Holders or the Special Representative gives to the Trustee
written notice stating that an Event of Default is continuing;
(2) the Holders or the Special Representative provides to the
Trustee reasonable security and indemnity against any loss, liability or
expense satisfactory to the Trustee; and
(3) the Trustee does not comply with the request within 60 days
after receipt of the notice, the request and the offer of security and
indemnity.
SECTION 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal and premium (if any) or interest on
the Debentures held by such Holder, on or after the respective due dates
expressed in the Debentures (in the case of interest, as the same may be
extended pursuant to Section 4.01(b) hereof) or any Redemption Date, or to
bring suit for the enforcement of any such payment on or after such respective
dates shall not be impaired or affected adversely without the consent of each
such Holder.
SECTION 6.08 Collection Suit by the Trustee.
If an Event of Default described in Section 6.01(1) hereof occurs and
is continuing, the Trustee may recover judgment in its own name and as trustee
of an express trust against the Company or any obligor on the Debentures for
the whole amount owing with respect to the Debentures and the amounts provided
for in Section 7.07 hereof.
SECTION 6.09 The Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or its properties or assets, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(1) to file and prove a claim for the whole amount of the principal
of and premium, if any, and interest on the Debentures and to file such other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel)
and of the Holders allowed in such judicial proceeding; and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any Custodian
in any such judicial proceeding is hereby authorized by each Holder to make
such payments to the Trustee and, in the event that the Trustee shall consent
to the making of such payments directly to the Holders, to pay the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debentures
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10 Priorities.
If the Trustee collects any money pursuant to this Article 6, it
shall, subject to Article 10 hereof, pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07 hereof;
SECOND: to Debentureholders for amounts due and unpaid on the Debentures
for the principal amount, Redemption Price or interest, if any,
as the case may be, ratably, without preference or priority of
any kind, according to such amounts due and payable on the
Debentures; and
THIRD: the balance, if any, to the Company.
The Trustee may fix a Record Date and payment date for any payment
to Debentureholders pursuant to this Section 6.10.
SECTION 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted
by it as Trustee, a court in its discretion may require the filing by any party
litigant (other than the Trustee) in the suit of an undertaking to pay the
costs of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant
in the suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section 6.11 does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07 hereof, a suit
by Holders of more than 10% in aggregate principal amount of the Debentures at
the time outstanding or a suit by the Special Representative.
SECTION 6.12 Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law or any usury or
other law wherever enacted, now or at any time hereafter in force, that would
prohibit or forgive the Company from paying all or any portion of the principal
of or premium, if any, or interest on the Debentures as contemplated herein or
affect the covenants or the performance by the Company of its obligations under
this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE 7
THE TRUSTEE
SECTION 7.01 Duties of the Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in its exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default, (i) the
Trustee need perform only those duties that are specifically set forth in this
Indenture and no others; and (ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture.
However, in the case of any certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee
shall examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this Section 7.01(c) does not limit the effect of Section
7.01(b) hereof;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved
that the Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with
a direction received by it pursuant to Section 6.05 hereof.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to Section 7.01(a), (b), (c) and (e) and Section 7.02
hereof.
(e) The Trustee may refuse to perform any duty or exercise any right
or power or extend or risk its own funds or otherwise incur any financial
liability unless it receives security and indemnity reasonably satisfactory to
it against any loss, liability or expense (including reasonable counsel fees).
(f) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. Except as
otherwise provided in Section 3.05 and Section 8.01 hereof the Trustee shall
not be liable for interest on any money held by it hereunder.
SECTION 7.02 Rights of the Trustee.
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officer's Certificate and, if appropriate, 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 such Officer's Certificate and Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or within
its rights or powers.
(e) The Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders or the Special Representative pursuant to this Indenture,
unless such Holders or the Special Representative, as the case may be, shall
have offered to the Trustee reasonable security and indemnity against the
costs, expenses and liabilities (including reasonable counsel fees) which might
be incurred by it in compliance with such request or direction.
SECTION 7.03 Individual Rights of the Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Debentures and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee. Any
Paying Agent, Registrar or co-registrar may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11 hereof.
SECTION 7.04 The Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy
of this Indenture or the Debentures. The Trustee shall not be accountable for
the Company's use of the proceeds from the Debentures, and the Trustee shall
not be responsible for any statement in this Indenture or the Debentures or any
report or certificate issued by the Company hereunder or any registration
statement relating to the Debentures (other than the Trustee's Certificate of
Authentication), or the determination as to which beneficial owners are
entitled to receive any notices hereunder.
SECTION 7.05 Notice of Defaults.
If a Default occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to each Debentureholder, as their names and
addresses appear in the Register, notice of the Default within 90 days after
it becomes known to the Trustee unless such Default shall have been cured or
waived. Except in the case of a Default described in Section 6.01(1) hereof,
the Trustee may withhold such notice if and so long as a committee of Trust
Officers in good faith determines that the withholding of such notice is in the
interests of the Debentureholders. The Trustee shall not be charged with
knowledge of any Default (except in the case of a Default under Section 6.01(1)
hereof) unless a responsible Trust Officer assigned to the corporate trust
administration department of the Trustee shall have actual knowledge of the
Default. The second sentence of this Section 7.05 shall be in lieu of the
proviso to TIA Section 315(b). Said proviso is hereby expressly excluded from
this Indenture, as permitted by the TIA.
SECTION 7.06 Reports by Trustee to Holders.
Within 60 days after each October 31, beginning with the October 31
next following the date of this Indenture, the Trustee shall mail to each
Debentureholder, and such other holders that have submitted their names to the
Trustee for such purpose, a brief report dated as of such October 31 in
accordance with and to the extent required under TIA Section 313.
A copy of each report at the time of its mailing to Debentureholders
shall be filed with the Company, the SEC and any securities exchange on which
the Debentures are listed. The Company agrees to promptly notify the Trustee
whenever the Debentures become listed on any securities exchange and of any
listing thereof.
SECTION 7.07 Compensation and Indemnity.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as
shall be agreed in writing between the Company and the Trustee for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(2) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, and advances of its agents and counsel, provided
that prior to an Event of Default, the Trustee shall only have one counsel),
including all reasonable expenses and advances incurred or made by the Trustee
in connection with any Event of Default or any membership on any creditors'
committee, except any such expense or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee, its officers, directors and
shareholders, for, and to hold it harmless against, any and all loss, liability
or expense, incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of this trust,
including the 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.
Before, after or during an Event of Default, the Trustee shall have
a claim and lien prior to the Debentures as to all property and funds held by
it hereunder for any amount owing it for its fees and expenses or any
predecessor Trustee pursuant to this Section 7.07, except with respect to funds
held by the Trustee or any Paying Agent in trust for the payment of principal
of, premium, if any, or interest on particular Debentures pursuant to Section
2.06 or Section 8.01 hereof.
The Company's payment obligations pursuant to this Section 7.07 are
not subject to Article 10 of this Indenture and shall survive the discharge of
this Indenture. When the Trustee renders services or incurs expenses after the
occurrence of a Default specified in Section 6.01 hereof, the compensation for
services and expenses are intended to constitute expenses of administration
under any Bankruptcy Law.
SECTION 7.08 Replacement of Trustee.
The Trustee may resign at any time, by so notifying the Company in
writing at least 30 days prior to the date of the proposed resignation;
provided, however, no such resignation shall be effective until a successor
Trustee has accepted its appointment pursuant to this Section 7.08. The
Special Representative, if one has been appointed, or, if the Partnership is
not the sole Holder of the Debentures, the Holders of a majority in aggregate
principal amount of the Debentures at the time outstanding or, if the
Partnership is the sole Holder of the Debentures, the Partnership, with the
consent of the holder of 66 % of the aggregate stated liquidation preference
of the Preferred Securities, may remove the Trustee by so notifying the Trustee
in writing and may appoint a successor Trustee, which shall be subject to the
consent of the Company unless an Event of Default has occurred and is
continuing. The Trustee shall resign if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, the Company shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to
the retiring Trustee and to the Company. Thereupon the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture.
The successor Trustee shall mail a notice of its succession to
Debentureholders. Subject to payment of all amounts owing to the Trustee under
Section 7.07 hereof and subject further to its lien under Section 7.07, the
retiring Trustee shall promptly transfer all property held by it as Trustee to
the successor Trustee. If a successor Trustee does not take office within 30
days after the retiring Trustee resigns or is removed, the Company, the Special
Representative or the Holders of a majority in aggregate principal amount of
the Debentures at the time outstanding may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any
Debentureholder may petition any court of competent jurisdiction for its
removal and the appointment of a successor Trustee.
SECTION 7.09 Successor Trustee by Merger.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all its corporate trust business or assets to
another corporation, the resulting, surviving or transferee corporation without
any further act shall be the successor Trustee.
SECTION 7.10 Eligibility; Disqualification.
The Trustee shall at all times satisfy the requirements of TIA
Sections 310(a)(1) and 310(a)(2). The Trustee (or any Affiliate thereof which
has unconditionally guaranteed the obligations of the Trustee hereunder) shall
have a combined capital and surplus of at least $50,000,000 as set forth in its
most recently published annual report of condition. The Trustee shall comply
with TIA Section 310(b). In determining whether the Trustee has conflicting
interests as defined in TIA Section 310(b)(1), the provisions contained in the
proviso to TIA Section 310(b)(1) shall be deemed incorporated herein.
SECTION 7.11 Preferential Collection of Claims Against the Company.
If and when the Trustee shall be or become a creditor of the Company,
the Trustee shall be subject to the provisions of the TIA regarding the
collection of claims against the Company.
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE;
DEFEASANCE OF CERTAIN OBLIGATIONS; UNCLAIMED MONEYS
SECTION 8.01 Satisfaction and Discharge of Indenture.
The Company shall be deemed to have paid and discharged the entire
indebtedness on any series of the Debentures outstanding on the date the
Company has irrevocably deposited or caused to be irrevocably deposited with
the Trustee or any Paying Agent as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of the
Debentures of such series (1) cash (which may be held in an interest bearing
account insured by the Federal Deposit Insurance Corporation) in an amount, or
(2) U.S. Government Obligations, maturing as to principal and interest at such
times and in such amounts as will ensure the availability of cash, or (3) a
combination thereof, sufficient to pay the principal of and premium, if any,
and interest on all Debentures then outstanding, provided that in the case of
redemption, notice of redemption shall have been given or the Company shall
have irrevocably instructed the Trustee to give such notice; and further
provided that the following conditions shall have been met:
(A) no Default or Event of Default with respect to the Debentures
has occurred and is continuing on the date of such deposit or occurs as
a result of such deposit;
(B) the Company has delivered to the Trustee an Officer's
Certificate certifying that there does not exist (i) a default in the
payment of all or any portion of any Senior Indebtedness or (ii) any other
default affecting Senior Indebtedness permitting its acceleration as the
result of which the maturity of Senior Indebtedness has been accelerated;
(C) the Company has delivered to the Trustee (i) either a private
Internal Revenue Service ruling or an Opinion of Counsel based on a ruling
of the Internal Revenue Service or other change in Federal income tax law
to the effect that the Holders will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the same amount and
in the manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred, and (ii) an Opinion
of Counsel to the effect that (A) the deposit shall not result in the
Company, the Trustee or the trust being deemed to be an "investment
company" under the Investment Company Act of 1940, as amended, and (B)
such deposit creates a valid trust in which such Holders of the Debentures
have the sole beneficial ownership interest or that such Holders of the
Debentures have a nonavoidable first priority security interest in such
trust; and
(D) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the defeasance contemplated by this provision have
been complied with.
Upon such deposit, provisions of this Indenture with respect to such series of
Debentures shall no longer be in effect (except as to (1) the rights of
registration of transfer and exchange of Debentures, (2) the replacement of
apparently mutilated, defaced, destroyed, lost or stolen Debentures, (3) the
rights of the Holders to receive payments of the principal thereof and premium,
if any, and interest thereon, (4) the rights of the Holders as beneficiaries
hereof with respect to the property so deposited with the Trustee payable to
all or any of them, (5) the obligation of the Company to maintain an office or
agency for payments on and registration of transfer of the Debentures, (6) the
rights, obligations and immunities of the Trustee hereunder, and (7) the
obligations of the Company to the Trustee for compensation and indemnity under
Section 7.07 hereof; and the Trustee shall, at the request and expense of the
Company, execute proper instruments acknowledging the same.
SECTION 8.02 Application by Trustee of Funds Deposited for
Payment of Debentures.
Subject to Section 8.04 hereof, all moneys deposited with the Trustee
pursuant to Section 8.01 hereof shall be held in trust and applied by it to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent), to the Holders for the payment or redemption
of which such moneys have been deposited with the Trustee, of all sums due and
to become due thereon for principal and interest; but such money need not be
segregated from other funds except to the extent required by law.
SECTION 8.03 Repayment of Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this Indenture,
all moneys then held by any Paying Agent under this Indenture shall, upon
demand of the Company, be repaid to it or paid to the Trustee, and thereupon
such Paying Agent shall be released from all further liability with respect to
such moneys.
SECTION 8.04 Return of Moneys Held by the Trustee and Paying Agent
Unclaimed for Three Years.
Any moneys deposited with or paid to the Trustee or any Paying Agent
for the payment of the principal of and premium, if any, or interest on any
Debenture and not applied but remaining unclaimed for three years after the
date when such principal, premium, if any, or interest shall have become due
and payable shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be repaid to the
Company by the Trustee or such Paying Agent, and the Holder of such Debenture
shall, unless otherwise required by mandatory provisions of applicable escheat
or abandoned or unclaimed property laws, thereafter look only to the Company
for any payment which such Holder may be entitled to collect, and all liability
of the Trustee or any Paying Agent with respect to such moneys shall thereupon
cease.
ARTICLE 9
AMENDMENTS
SECTION 9.01 Without Consent of Holders.
From time to time, when authorized by a resolution of the Board of
Directors, the Company and the Trustee, without notice to or the consent of any
Holders of the Debentures or the Special Representative, may amend or
supplement this Indenture or the Debentures:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5 hereof;
(3) to provide for uncertificated Debentures in addition to or in
place of certificated Debentures;
(4) to make any other change that does not in the reasonable
judgment of the Company adversely affect the rights of any Debentureholder;
(5) to comply with any requirement of the SEC in connection with the
qualification of this Indenture under the TIA; or
(6) to set forth the terms and conditions, which shall not be
inconsistent with this Indenture, of the series of Debentures (other than the
Series A Debentures) that are to be issued hereunder and the form of Debentures
of such series.
SECTION 9.02 With Consent of Holders.
The Company and the Trustee may amend this Indenture or the
Debentures in any manner not permitted by Section 9.01 or may waive future
compliance by the Company with any provisions of this Indenture or the
Debentures (i) if the Partnership is the sole Holder of the Debentures, with
the written consent of the Special Representative or if no Special
Representative has been appointed, the Partnership, at the direction of the
holders of 66 % of the aggregate stated liquidation preference of the Preferred
Securities at the time outstanding, or (ii) if the Partnership is not the sole
Holder of the Debentures, with the consent of the Holders of at least 66 % in
aggregate principal amount of the Debentures at the time outstanding. Such an
amendment or waiver may not, without the consent of (i) each Holder of the
Debentures (if the Partnership is not the sole Holder of the Debentures) or
(ii) each holder of the Preferred Securities (if the Partnership is the sole
Holder of the Debentures):
(1) reduce the principal of the Debentures;
(2) reduce the principal amount of the Debentures the Holders of
which must consent to an amendment of the Indenture or a waiver;
(3) change the stated maturity of the principal of, premium, if any,
or the interest on or rate of interest of, or Additional Interest with respect
to, any Debentures, change adversely to the Holders the redemption provisions
of Article 3 hereof, or impair the right to institute suit for the enforcement
of any such payment or change the currency in respect of which the payments on
any Debentures are to be made;
(4) change the obligation of the Company to pay Additional Interest
on the Debentures;
(5) make any change in Article 10 hereof that adversely affects the
rights of the Holders of the Debentures or any change to any other Section
hereof that adversely affects their rights under Article 10 hereof;
(6) change Section 6.07 hereof.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
If certain Holders agree to defer or waive certain obligations of the
Company hereunder with respect to Debentures held by them, such deferral or
waiver shall not affect the rights of any other Holder to receive the payment
or performance required hereunder in a timely manner.
After an amendment or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Special Representative and to each
Holder a notice briefly describing the amendment or waiver. Any failure of the
Company to mail such notices, or any defect therein, shall not, however, in any
way impair or affect the validity of such amendment or waiver.
SECTION 9.03 Compliance with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article 9
shall comply with the TIA.
SECTION 9.04 Revocation and Effect of Consents, Waivers and Actions.
Until an amendment, waiver or other action by Holders becomes
effective, a consent to it or any other action by a Holder of a Debenture
hereunder is a continuing consent by the Holder and every subsequent Holder of
that Debenture or portion of the Debenture that evidences the same obligation
as the consenting Holder's Debenture, even if notation of the consent, waiver
or action is not made on the Debenture. However, any such Holder or subsequent
Holder may revoke the consent, waiver or action as to such Holder's Debenture
or portion of the Debenture if the Trustee receives the notice of revocation
before the consent of the requisite aggregate principal amount of the
Debentures then outstanding has been obtained and not revoked. After an
amendment, waiver or action becomes effective, it shall bind every
Debentureholder, except as provided in Section 9.02 hereof.
The Company may, but shall not be obligated to, fix a Record Date for
the purpose of determining the Holders entitled to consent to any amendment or
waiver. If a Record Date is fixed, then, notwithstanding the first two
sentences of the immediately preceding paragraph, those Persons who were
Holders at such Record Date or their duly designated proxies, and only those
Persons, shall be entitled to consent to such amendment, supplement or waiver
or to revoke any consent previously given, whether or not such Persons continue
to be Holders after such Record Date. No such consent shall be valid or
effective for more than 90 days after such Record Date.
SECTION 9.05 Notation on or Exchange of Debentures.
Debentures authenticated and made available for delivery after the
execution of any supplemental indenture pursuant to this Article 9 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 Debentures so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
made available for delivery by the Trustee in exchange for outstanding
Debentures.
SECTION 9.06 Trustee to Execute Supplemental Indentures.
The Trustee shall execute any supplemental indenture authorized
pursuant to this Article 9 if the supplemental indenture does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it
does, the Trustee may, but need not, execute it. In executing such
supplemental indenture the Trustee shall be entitled to receive, and shall be
fully protected in relying upon, an Officer's Certificate and Opinion of
Counsel stating that such supplemental indenture is authorized or permitted by
this Indenture.
SECTION 9.07 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article
9, 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 Debentures theretofore or thereafter authenticated and made
available for delivery hereunder shall be bound thereby.
ARTICLE 10
SUBORDINATION
SECTION 10.01 Debentures Subordinated to Senior Indebtedness.
Notwithstanding the provisions of Section 6.10 hereof or any other
provision herein or in any Debenture, the Company and the Trustee or Holder by
his acceptance thereof (a) covenants and agrees, that all payments by the
Company of the principal of and premium, if any, and interest on the Debentures
(other than Debentures which have been discharged pursuant to Article 8) shall
be subordinated in accordance with the provisions of this Article 10 to the
prior payment in full, in cash or cash equivalents, of all amounts payable on,
under or in connection with Senior Indebtedness, and (b) acknowledges that
holders of Senior Indebtedness are or shall be relying on this Article 10.
SECTION 10.02 Priority and Payment of Proceeds in Certain Events;
Remedies Standstill.
(a) Upon any payment or distribution of assets or securities of the
Company, as the case may be, of any kind or character, whether in cash,
property or securities, upon any dissolution or winding up or total or partial
liquidation or reorganization of the Company, whether voluntary or involuntary,
or in bankruptcy, insolvency, receivership or other proceedings, all amounts
payable on, under or in connection with Senior Indebtedness (including any
interest accruing on such Senior Indebtedness subsequent to the commencement
of a bankruptcy, insolvency or similar proceeding) shall first be paid in full
in cash, or payment provided for in cash or cash equivalents, before the
Holders or the Trustee on behalf of the Holders shall be entitled to receive
from the Company any payment of principal of or premium, if any, or interest
on the Debentures or distribution of any assets or securities.
(b) No direct or indirect payment by or on behalf of the Company of
principal of or premium, if any, or interest on the Debentures (other than
Debentures which have been discharged pursuant to Article 8) whether pursuant
to the terms of the Debentures or upon acceleration or otherwise shall be made
if, at the time of such payment, there exists (i) a default in the payment of
all or any portion of any Senior Indebtedness and the Trustee has received
written notice thereof from the Company, one or more holders of Senior
Indebtedness or from any trustee, representative or agent therefor, or (ii) any
other default affecting Senior Indebtedness permitting its acceleration, as the
result of which the maturity of Senior Indebtedness has been accelerated and
the Trustee has received written notice from any trustee, representative or
agent for the holders of the Senior Indebtedness or the holders of at least a
majority in principal amount of the Senior Indebtedness then outstanding of
such default and acceleration, and such default shall not have been cured or
waived by or on behalf of the holders of such Senior Indebtedness.
(c) If, notwithstanding the foregoing provisions prohibiting such
payment or distribution, the Trustee or any Holder shall have received any
payment on account of the principal of or premium, if any, or interest on the
Debentures (other than as permitted by subsections (a) and (b) of this Section
10.02) when such payment is prohibited by this Section 10.02 and before all
amounts payable on, under or in connection with Senior Indebtedness are paid
in full in cash or cash equivalents, then and in such event (subject to the
provisions of Section 10.08 hereof) such payment or distribution shall be
received and held in trust for the holders of Senior Indebtedness and, at the
written direction of the trustee, representative or agent for the holders of
the Senior Indebtedness, shall be paid to the holders of the Senior
Indebtedness remaining unpaid to the extent necessary to pay such Senior
Indebtedness in full in cash or cash equivalents.
Upon any payment or distribution of assets or securities referred to
in this Article 10, the Trustee and the Holders shall be entitled to rely upon
any order or decree of a court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization proceedings are pending,
and upon a certificate of the receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making any such payment or distribution,
delivered to the Trustee for the purpose of ascertaining the Persons entitled
to participate in such distribution, the holders of Senior Indebtedness 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 10.
SECTION 10.03 Payments which May Be Made Prior to Notice.
Nothing in this Article 10 or elsewhere in this Indenture shall
prevent (i) the Company, except under the conditions described in Section 10.02
hereof, from making payments of principal of or premium, if any, or interest
on the Debentures or from depositing with the Trustee any monies for such
payments, or (ii) the application by the Trustee of any monies deposited with
it for the purpose of making such payments of principal of or premium, if any,
or interest on the Debentures, to the Holders entitled thereto, unless at least
one Business Day prior to the date when such payment would otherwise (except
for the prohibitions contained in Section 10.02 hereof) become due and payable
the Trustee shall have received the written notice provided for in Section
10.02(b)(i) or (ii) hereof.
SECTION 10.04 Rights of Holders of Senior Indebtedness Not to Be Impaired.
No right of any present or future holder of any Senior Indebtedness
to enforce subordination as herein provided shall at any time or in any way be
prejudiced or impaired by any act or failure to act in good faith by any such
holder, or by any noncompliance by the Company with the terms and provisions
and covenants herein regardless of any knowledge thereof any such holder may
have or otherwise be charged with.
The provisions of this Article 10 are intended to be for the benefit
of, and shall be enforceable directly by, the holders of Senior Indebtedness.
Notwithstanding anything to the contrary in this Article 10, to the
extent any Holders or the Trustee have paid over or delivered to any holder of
Senior Indebtedness any payment or distribution received on account of the
principal of or premium (if any) or interest on the Debentures to which any
other holder of Senior Indebtedness shall be entitled to share in accordance
with Section 10.02 hereof, no holder of Senior Indebtedness shall have a claim
or right against any Holders or the Trustee with respect to any such payment
or distribution or as a result of the failure to make payments or distributions
to such other holder of Senior Indebtedness.
SECTION 10.05 Trustee May Take Action to Effectuate Subordination.
Each Holder of a Debenture, by his acceptance thereof, authorizes and
directs the Trustee on his behalf to take such action as may be required by the
trustee, representative or agent for holders of Senior Indebtedness or by the
Company to effectuate, as between the holders of Senior Indebtedness and the
Holders, the subordination as provided in this Article 10 and appoints the
Trustee his attorney-in-fact for any and all such purposes.
SECTION 10.06 Subrogation.
Upon the payment in full, in cash or cash equivalents, of all Senior
Indebtedness, any Holder shall be subrogated to the rights of the holders of
such Senior Indebtedness to receive payments or distributions of assets of the
Company made on such Senior Indebtedness until the Debentures shall be paid in
full; and for the purposes of such subrogation, no payments or distributions
to holders of such Senior Indebtedness of any cash, property or securities to
which such Holders of the Debentures would be entitled except for this Article
10, and no payment pursuant to this Article 10 to holders of such Senior
Indebtedness by such Holders of the Debentures, shall, as between the Company,
its creditors other than holders of such Senior Indebtedness and such Holders
of the Debentures, be deemed to be a payment by the Company to or on account
of such Senior Indebtedness, it being understood that the provisions of this
Article 10 are solely for the purpose of defining the relative rights of the
holders of such Senior Indebtedness, on the one hand, and such Holders of the
Debentures, on the other hand.
If any payment or distribution to which Holders of the Debentures
would otherwise have been entitled but for the provisions of this Article 10
shall have been applied, pursuant to this Article 10, to the payment of all
Senior Indebtedness, then and in such case, such Holders of the Debentures
shall be entitled to receive from the holders of such Senior Indebtedness at
the time outstanding any payments or distributions received by such holders of
Senior Indebtedness in excess of the amount sufficient to pay, in cash or cash
equivalents, all such Senior Indebtedness in full.
SECTION 10.07 Obligations of Company Unconditional; Reinstatement.
Nothing in this Article 10 or elsewhere in this Indenture or in any
Debenture is intended to or shall impair, as between the Company and Holders
of the Debentures, the obligations of the Company, which are absolute and
unconditional, to pay to such Holders the principal of and premium, if any, and
interest on the Debentures as and when the same shall become due and payable
in accordance with their terms, or is intended to or shall affect the relative
rights of such Holders of the Debentures and creditors of the Company other
than the holders of the Senior Indebtedness, nor shall anything herein or
therein prevent the Trustee, the Special Representative or any Holder from
exercising all remedies otherwise permitted by applicable law under this
Indenture, subject to the rights, if any, under this Article 10 of the holders
of such Senior Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such remedy.
The failure to make a scheduled payment of principal of or premium,
if any, or interest on the Debentures by reason of Section 10.02 shall not be
construed as preventing the occurrence of an Event of Default under Section
6.01 hereof; provided, however, that if (i) the conditions preventing the
making of such payment no longer exist, and (ii) such Holders of the Debentures
are made whole with respect to such omitted payments, the Event of Default
relating thereto (including any failure to pay any accelerated amounts) shall
be automatically waived, and the provisions of the Indenture shall be
reinstated as if no such Event of Default had occurred.
SECTION 10.08 Trustee Entitled to Assume Payments Not Prohibited
in Absence of Notice.
The Trustee or Paying Agent shall not be charged with the knowledge
of the existence of any default in the payment of all or a portion of any
Senior Indebtedness or any other default affecting Senior Indebtedness
permitting its acceleration, as a result of which the maturity of the Senior
Indebtedness has been accelerated, unless and until the Trustee or Paying Agent
shall have received written notice thereof from the Company or one or more
holders of Senior Indebtedness or from any trustee or agent therefor or unless
the Trustee or Paying Agent otherwise had actual knowledge thereof; and, prior
to the receipt of any such written notice or actual knowledge of a responsible
Trust Officer in the corporate trust administration department of the Trustee
or Paying Agent, the Trustee or Paying Agent may conclusively assume that no
such facts exist.
Unless at least one Business Day prior to the date when by the terms
of this Indenture any monies are to be deposited by the Company with the
Trustee or any Paying Agent for any purpose (including, without limitation, the
payment of the principal of or premium, if any, or interest on any Debenture),
the Trustee or Paying Agent shall have received with respect to such monies the
notice provided for in Section 10.02 or a responsible Trust Officer in the
corporate trust administration department of the Trustee or Paying Agent shall
have actual knowledge of default in the payment of all or a portion of any
Senior Indebtedness or any other default affecting Senior Indebtedness
permitting its acceleration, as the result of which the maturity of the Senior
Indebtedness has been accelerated, the Trustee or Paying Agent shall have full
power and authority to receive and apply such monies to the purpose for which
they were received. Neither of them shall be affected by any notice to the
contrary, which may be received by either on or after such date. The foregoing
shall not apply to the Paying Agent if the Company is acting as Paying Agent.
Nothing in this Section 10.08 shall limit the right of the holders of Senior
Indebtedness to recover payments as contemplated by Section 10.02 hereof. The
Trustee or Paying Agent shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself or itself to be a holder of
such Senior Indebtedness (or a trustee or agent on behalf of, or other
representative of, such holder) to establish that such notice has been given
by a holder of such Senior Indebtedness or a trustee or representative on
behalf of any such holder. The Trustee shall not be deemed to have any duty
to the holders (and shall be fully protected in relying upon such notice) of
Senior Indebtedness.
SECTION 10.09 Right of Trustee to Hold Senior Indebtedness.
The Trustee and any Paying Agent shall be entitled to all of the
rights set forth in this Article 10 in respect of any Senior Indebtedness at
any time held by them to the same extent as any other holder of such Senior
Indebtedness, and nothing in this Indenture shall be construed to deprive the
Trustee or any Paying Agent of any of its rights as such holder.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by operation of subsection (c) of Section 318 of the
TIA, the imposed duties shall control. The provisions of Sections 310 to 317,
inclusive, of the TIA that impose duties on any Person (including provisions
automatically deemed included in an indenture unless the indenture provides
that such provisions are excluded) are a part of and govern this Indenture,
except as, and to the extent, they are expressly excluded from this Indenture,
as permitted by the TIA.
SECTION 11.02 Notices.
Any notice or communication shall be in writing and delivered in
person or mailed by first-class mail, postage prepaid, addressed as follows:
if to the Company:
Public Service Electric and Gas Company
80 Park Plaza, T6B
P.O. Box 570
Newark, New Jersey 07101
Attention: Treasurer
if to the Trustee:
First Fidelity Bank, National Association
765 Broad Street
Newark, New Jersey 07101
Attention: Corporate Trust Department
The Company or the Trustee, by giving notice to the other, may
designate additional or different addresses for subsequent notices of
communications. The Company shall notify the holder, if any, of Senior
Indebtedness of any such additional or different addresses of which the Company
receives notice from the Trustee.
Any notice or communication given to a Debentureholder shall be
mailed or delivered to the Debentureholder at the Debentureholder's address as
it appears on the Register of the Registrar and shall be sufficiently given if
mailed within the time prescribed.
Failure to mail a notice or communication to a Debentureholder or any
defect in it shall not affect its sufficiency with respect to other
Debentureholders. If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the
Debentureholders, it shall mail a copy to the Trustee and each Registrar,
Paying Agent or co-Registrar.
SECTION 11.03 Communication by Holders with Other Holders.
Debentureholders may communicate, pursuant to TIA Section 312(b),
with other Debentureholders with respect to their rights under this Indenture
or the Debentures. The Company, the Trustee, the Registrar, the Paying Agent
and anyone else shall have the protection of TIA Section 312(c).
SECTION 11.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officer's Certificate (complying with Section 11.05 hereof)
stating that, in the opinion of such Officer, all conditions precedent to the
taking of such action have been complied with; and
(2) if appropriate, an Opinion of Counsel (complying with Section
11.05 hereof) stating that, in the opinion of such counsel, all such conditions
precedent to the taking of such action have been complied with.
SECTION 11.05 Statements Required in Certificate or Opinion.
Each Officer's Certificate and Opinion of Counsel with respect to
compliance with a covenant or condition provided for in this Indenture shall
include:
(1) a statement that each Person making such Officer's Certificate
or Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
Officer's Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such Person, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement that, in the opinion of such Person, such covenant
or condition has been complied with; provided, however, that with respect to
matters of fact not involving any legal conclusion, an Opinion of Counsel may
rely on an Officer's Certificate or certificates of public officials.
SECTION 11.06 Severability Clause.
If any provision in this Indenture or in the 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.
SECTION 11.07 Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a meeting of
Debentureholders. The Registrar and Paying Agent may make reasonable rules for
their functions.
SECTION 11.08 Legal Holidays.
A "Legal Holiday" is any day other than a Business Day. If any
specified date (including a date for giving notice) is a Legal Holiday, the
action to be taken on such date shall be taken on the next succeeding day that
is not a Legal Holiday, and if such action is a payment in respect of the
Debentures, unless otherwise specified pursuant to Section 2.01 hereof no
principal, premium (if any) or interest installment shall accrue for the
intervening period; except that if any interest payment is due on a Legal
Holiday and the next succeeding day is in the next succeeding calendar year,
such payment shall be made on the Business Day immediately preceding such Legal
Holiday.
SECTION 11.09 Governing Law.
This Indenture and the Debentures shall be governed by and construed
in accordance with the laws of the State of New Jersey as applied to contracts
made and performed within the State of New Jersey, without regard to its
principles of conflicts of laws.
SECTION 11.10 No Recourse Against Others.
No director, officer, employee or stockholder, as such, of the
Company shall have any liability for any obligations of the Company under the
Debentures or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Debenture, each
Debentureholder shall waive and release all such liability. The waiver and
release shall be part of the consideration for the issue of the Debentures.
SECTION 11.11 Successors.
All agreements of the Company in this Indenture and the Debentures
shall bind its successors and assigns. All agreements of the Trustee in this
Indenture shall bind its successors and assigns.
SECTION 11.12 Multiple Original Copies of this Indenture.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement. Any signed copy shall be sufficient proof of this Indenture.
SECTION 11.13 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of the Company or any Subsidiary. Any such indenture, loan
or debt agreement may not be used to interpret this Indenture.
SECTION 11.14 Table of Contents; Headings, Etc.
The Table of Contents, Cross-Reference Table, and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 11.15 Benefits of the Indenture.
Except as expressly provided in Article 10 hereof, nothing in this
Indenture or in the Debentures, express or implied, shall give to any person,
other than the parties hereto and their successors hereunder, the Holders and
the Special Representative, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 11.16 Partnership Books and Records.
If at any time the consent or direction of all or a portion of the
holders of the Preferred Securities is required hereunder, the Company will use
its best efforts to cause the Partnership to provide to the Trustee such books
and records of the Partnership as are necessary to determine if the consent or
direction of the holders of the requisite amount of the Preferred Securities
has been obtained, and the Trustee shall be entitled to rely on such books and
records in making such a determination.
SIGNATURES
IN WITNESS WHEREOF, the undersigned, being duly authorized, have
executed this Indenture on behalf of the respective parties hereto as of the
date first above written.
PUBLIC SERVICE ELECTRIC AND GAS COMPANY
By: FRANCIS J. RIEPL
Name: Francis J. Riepl
Title: Vice President and Treasurer
FIRST FIDELITY BANK,
NATIONAL ASSOCIATION, as Trustee
By: D. DOWDELL
Name: D. Dowdell
Title: Corporate Trust Officer
Public Service Electric and Gas Capital, L.P.
By: Public Service Electric and Gas Company,
its sole general partner
By: FRANCIS J. RIEPL
Name:Francis J. Riepl
Title:Vice President and Treasurer
Solely for the purposes stated
in the recitals hereto.
Exhibit A
PUBLIC SERVICE ELECTRIC AND GAS COMPANY
__% Deferrable Interest Subordinated Debenture,
Series A
No. 1
Public Service Electric and Gas Company, a New Jersey corporation
(the "Company," which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to ______________________________ or registered assigns, the principal sum of
________________________ __________________________________ Dollars on
__________, 2043, and to pay interest on said principal sum from _________,
1994 or from the most recent Interest Payment Date (as defined below) to which
interest has been paid or duly provided for, monthly in arrears on the last day
of each calendar month of each year commencing ________, 1994 (each, an
"Interest Payment Date") at the rate of __% per annum plus Additional Interest,
if any, until the principal hereof shall have become due and payable, and on
any overdue principal and (to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
same rate per annum. The amount of interest payable on any Interest Payment
Date shall be computed on the basis of a 360-day year of twelve 30-day months.
In the event that any Interest Payment Date is not a Business Day, then
interest will be payable on the next succeeding day which 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. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, 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 shall be the 15th day
of each month, provided that if all of the Series A Debentures (as defined
below) are then held by the Partnership or the Series A Debentures are held in
book-entry-only form, the Regular Record Date shall be the close of business
on the Business Day next preceding such Interest Payment Date. Any such
interest installment not punctually paid or duly provided for shall forthwith
cease to be payable to the registered holders on such Regular Record Date, and
may be paid to the person in whose name this Debenture is registered at the
close of business on a Special Record Date to be fixed by the Trustee (as
defined below) for the payment of such defaulted interest, notice whereof shall
be given to the registered holders of the Series A Debentures not less than 7
days prior to such Special Record Date, as more fully provided in the
Indenture.
Payment of the principal of and interest on this Debenture will be
made 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. Payments
of interest on an Interest Payment Date will be made by check mailed to the
registered holder hereof at the address shown in the Register or, at the option
of the registered holder hereof, to such other place in the United States of
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America as registered holder hereof shall designate to the Trustee in writing.
At the request of a registered holder of at least $10,000,000 aggregate
principal amount of Series A Debentures, interest on such Debentures will be
payable by wire transfer within the continental United States in immediately
available funds to the bank account number specified in writing by such holder
to the Registrar prior to the Regular Record Date.
The principal amount hereof and any interest due on the Stated
Maturity Date or a Redemption Date (other than an Interest Payment Date) will
be paid only upon surrender of this Debenture at the principal corporate trust
office of First Fidelity Bank, National Association, Paying Agent, in Newark,
New Jersey, or at such other office or agency of the Paying Agent as the
Company shall designate by written notice to the registered holder of this
Debenture.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. The
registered holder of this Debenture, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints the
Trustee his attorney-in-fact for any and all such purposes. The registered
holder hereof, by his acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such Holder upon said
provisions.
This Debenture is one of a duly authorized series of Debentures of
the Company (herein sometimes referred to as the "Series A Debentures"),
specified in the Indenture, limited in aggregate principal amount to
$___________, issued under and pursuant to an Indenture dated as of _________,
1994 (the "Indenture") executed and delivered between the Company and First
Fidelity Bank, National Association, as trustee (the "Trustee"). Reference is
made to the Indenture for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the registered holders of the Debentures. By the terms of the Indenture,
subordinated debentures (the "Debentures") are issuable in series which may
vary as to amount, date of maturity, rate of interest and in other respects as
in the Indenture provided.
The Series A Debentures are subject to mandatory redemption prior to
maturity at 100% of the principal amount thereof plus accrued interest to the
Redemption Date as follows:
(i) in whole upon the dissolution and winding up of the Partnership,
unless, in connection with such dissolution and winding up, the
Series A Debentures are distributed to the holders of the Series
A Preferred Securities (as defined in the Indenture); and
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(ii) in whole or in part upon a redemption of the Series A Preferred
Securities, but if in part, in an aggregate principal amount
equal to the aggregate stated liquidation preference of the
Series A Preferred Securities redeemed.
At the option of the Company, the Series A Debentures are redeemable
prior to maturity (i) at any time after the Company is required to pay
Additional Interest on the Series A Debentures, in whole or in part, (ii) at
any time on or after ___________, 1999, in whole or in part, and (iii) if a Tax
Event shall occur and be continuing, in whole (but not in part), in each case
at 100% of the principal amount thereof plus accrued interest to the Redemption
Date. "Tax Event" shall mean that the Partnership shall have received an
opinion of counsel (which may be regular counsel to the Company or an
Affiliate, but not an employee thereof) experienced in such matters to the
effect that, as a result of any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein affecting taxation, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or such interpretation or
pronouncement is announced on or after the date of original issuance of
Preferred Securities, there is more than an insubstantial risk that (i) the
Partnership is subject to United States Federal income tax with respect to
interest received on the Debentures or the Partnership will otherwise not be
taxed as a Partnership or (ii) interest payable by the Company to the
Partnership on the Debentures will not be deductible for United States Federal
income tax purposes or (iii) the Partnership is subject to more than a de
minimis amount of other taxes, duties, assessments or other governmental
charges.
At least 30 days but not more than 60 days before the Redemption
Date, the Trustee shall mail or caused to be mailed a notice of redemption by
first-class mail, postage prepaid, to each Holder of Debentures to be redeemed.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof will
be issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of and premium, if any, and interest
on all of the Debentures may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Debenture upon compliance by the Company with
certain conditions set forth therein.
Subject to certain exceptions in the Indenture which require the
consent of every Holder, the Company and the Trustee may amend the Indenture
or the Debentures issued thereunder or may waive future compliance by the
Company with any provisions of the Indenture or the Debentures issued
thereunder (i) if the Partnership is the sole holder of the Debentures issued
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thereunder, with the written consent of the Special Representative or, if no
Special Representative has been appointed, the Partnership, at the direction
of the holders of 66 % of the aggregate stated liquidation preference of the
Preferred Securities at the time outstanding, or (ii) if the Partnership is not
the sole Holder of the Debentures, with the consent of the Holders of at least
66 % in aggregate principal amount of the Debentures issued under the Indenture
at the time outstanding. Subject to certain exceptions in the Indenture,
without the consent of any Debentureholder, the Company and the Trustee may
amend the Indenture or the Debentures to cure any ambiguity, defect or
inconsistency, to bind a successor to the obligations of the Indenture, to
provide for uncertificated Debentures in addition to certificated Debentures,
to comply with any requirements of the Debentures and the Securities and
Exchange Commission in connection with the qualification of the Indenture under
the TIA, or to make any change that, in the reasonable judgment of the Company,
does not adversely affect the rights of any Debentureholder. Amendments bind
all Holders and subsequent Holders.
No reference herein to the Indenture and no provision of this
Debenture or the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on
this Debenture at the time and place and at the rate and in the money herein
prescribed.
So long as an Event of Default has not occurred and is continuing,
the Company shall have the right at any time and from time to time to extend
the interest payment period of the Debentures issued under the Indenture,
including the Series A Debentures, to up to 60 consecutive months (the
"Extended Interest Payment Period"), provided that no Extended Interest Payment
Period shall extend beyond the Stated Maturity Date or Redemption Date of any
Debenture issued under the Indenture. At the end of the Extended Interest
Payment Period, the Company shall pay all interest then accrued and unpaid
(together with interest thereon at the rate specified for the Debentures,
including the Series A Debentures to the extent that payment of such interest
is enforceable under applicable law). During such Extended Interest Payment
Period, the Company may not declare or pay any dividend on, redeem, purchase,
acquire or make a liquidation payment with respect to, any of its capital
stock. Prior to the termination of any such Extended Interest Payment Period,
the Company may further extend such Extended Interest Payment Period, provided
that such Extended Interest Payment Period together with all such previous and
further extensions thereof shall not exceed 60 consecutive months. At the
termination of any such Extended Interest Payment Period and upon the payment
of all amounts then due, the Company may select a new Extended Interest Payment
Period, subject to the foregoing restrictions.
Series A Debentures are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations therein set forth, this
Debenture is exchangeable for a like aggregate principal amount of Series A
Debentures of a different authorized denomination, as requested by the
registered holder surrendering the same.
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As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered holder
hereof upon surrender of this Debenture for registration of transfer at the
office or agency of the Registrar accompanied by a written instrument or
instruments of transfer in form satisfactory to the Registrar duly executed by
the registered holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Series A Debentures of authorized denominations and
for the same aggregate principal amount will be issued to the designated
transferee or transferees. No service charge will be made for any such
transfer, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in relation thereto.
Prior to presentment for registration of transfer of this Debenture,
the Company, the Trustee, any Paying Agent and any Registrar may deem and treat
the registered holder hereof as the absolute owner hereof (whether or not this
Debenture shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Registrar) for the purpose of
receiving payment of or on account of the principal hereof and interest due
hereon and for all other purposes, and neither the Company nor the Trustee nor
any Paying Agent nor any Registrar shall be affected by any notice to the
contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
Each term used in this Debenture which is defined in the Indenture
and not defined herein shall have the meaning assigned to it in the Indenture.
This Debenture shall not be valid until an authorized officer of the
Trustee manually signs and dates the Trustee's Certificate of Authentication
below.
IN WITNESS WHEREOF, the Company has caused this Debenture to be
signed manually or by facsimile by its duly authorized officers and a facsimile
of its corporate seal to be affixed hereto or imprinted hereon.
PUBLIC SERVICE ELECTRIC AND GAS COMPANY
By: ___________________________________
[SEAL] Name:
Title:
Attest:
___________________________
Assistant Secretary
Dated: _____________, 1995
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debentures referred
to in the within-mentioned Indenture.
FIRST FIDELITY BANK, NATIONAL ASSOCIATION, as Trustee
By: __________________________
Name
Authorized Signatory
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ASSIGNMENT FORM
To assign this Debenture, fill in the form below: (I) or (we) assign
and transfer this Debenture to:
_______________________________________________________________
(Insert assignee's social security or tax I.D. number)
________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ______________________________ agent to transfer this
Debenture on the books of the Debenture Register. The agent may substitute
another to act for him.
Dated: ________________ Signature: ________________________
(Sign exactly as your name appears on the other
side of this Debenture)
Signature Guaranty: ________________________
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