PUBLIC SERVICE ELECTRIC AND GAS COMPANY
and
FIRST UNION NATIONAL BANK, as Trustee
INDENTURE
Dated as of June 1, 1996
Providing for the Issuance of
Deferrable Interest Subordinated Debentures in Series
including
8.625% Deferrable Interest Subordinated Debentures, Series A
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE Page
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 and Holders of Preferred Securities....... 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................. 11
SECTION 2.03 Payment of Principal and Interest......................... 12
SECTION 2.04 Execution, Authentication and Delivery.................... 14
SECTION 2.05 Registrar and Paying Agent................................ 16
SECTION 2.06 Paying Agent to Hold Money in Trust....................... 17
SECTION 2.07 Debentureholder Lists..................................... 17
SECTION 2.08 Transfer and Exchange..................................... 17
SECTION 2.09 Replacement Debentures.................................... 18
SECTION 2.10 Outstanding Debentures; Determinations of Holders' Action. 19
SECTION 2.11 Temporary Debentures...................................... 19
SECTION 2.12 Book-Entry System......................................... 20
SECTION 2.13 Cancellation.............................................. 21
ARTICLE 3
REDEMPTION
SECTION 3.01 Redemption; Notice to Trustee............................. 22
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............................... 24
SECTION 3.06 Debentures Redeemed in Part............................... 24
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Debentures..................................... 24
SECTION 4.02 Prohibition Against Dividends............................. 25
SECTION 4.03 SEC Reports............................................... 25
SECTION 4.04 Compliance Certificates................................... 26
SECTION 4.05 Further Instruments and Acts.............................. 26
SECTION 4.06 Payments for Consents..................................... 26
SECTION 4.07 Payment of Expenses of Trust I............................ 26
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 When the Company May Merge................................ 27
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default......................................... 27
SECTION 6.02 Acceleration.............................................. 29
SECTION 6.03 Other Remedies............................................ 30
SECTION 6.04 Waiver of Past Defaults................................... 30
SECTION 6.05 Control by Majority....................................... 31
SECTION 6.06 Limitation on Suits....................................... 31
SECTION 6.07 Rights of Holders to Receive Payment...................... 32
SECTION 6.08 Collection Suit by the Trustee............................ 32
SECTION 6.09 The Trustee May File Proofs of Claim...................... 32
SECTION 6.10 Priorities................................................ 33
SECTION 6.11 Undertaking for Costs..................................... 33
SECTION 6.12 Waiver of Stay............................................ 34
ARTICLE 7
THE TRUSTEE
SECTION 7.01 Duties of the Trustee..................................... 34
SECTION 7.02 Rights of the Trustee..................................... 35
SECTION 7.03 Individual Rights of the Trustee.......................... 36
SECTION 7.04 The Trustee's Disclaimer.................................. 36
SECTION 7.05 Notice of Defaults........................................ 36
SECTION 7.06 Reports by Trustee to Holders............................. 37
SECTION 7.07 Compensation and Indemnity................................ 37
SECTION 7.08 Replacement of Trustee.................................... 38
SECTION 7.09 Successor Trustee by Merger............................... 39
SECTION 7.10 Eligibility; Disqualification............................. 39
SECTION 7.11 Preferential Collection of Claims Against the Company..... 39
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE;
DEFEASANCE OF CERTAIN OBLIGATIONS; UNCLAIMED MONEYS
SECTION 8.01 Satisfaction and Discharge of Indenture................... 39
SECTION 8.02 Application by Trustee of Funds Deposited for Payment of
Debentures................................................ 41
SECTION 8.03 Repayment of Moneys Held by Paying Agent.................. 41
SECTION 8.04 Return of Moneys Held by the Trustee and Paying Agent
Unclaimed for Three Years................................. 41
ARTICLE 9
AMENDMENTS
SECTION 9.01 Without Consent of Holders................................ 42
SECTION 9.02 With Consent of Holders................................... 42
SECTION 9.03 Compliance with Trust Indenture Act....................... 44
SECTION 9.04 Revocation and Effect of Consents; Waivers and Actions.... 44
SECTION 9.05 Notation on or Exchange of Debentures..................... 44
SECTION 9.06 Trustee to Execute Supplemental Indentures................ 45
SECTION 9.07 Effect of Supplemental Indentures......................... 45
ARTICLE 10
SUBORDINATION
SECTION 10.01 Debentures Subordinated to Senior Indebtedness............ 45
SECTION 10.02 Priority and Payment of Proceeds in Certain Events:
Remedies Standstill....................................... 45
SECTION 10.03 Payments which May Be Made Prior to Notice................ 47
SECTION 10.04 Rights of Holders of Senior Indebtedness Not to Be
Impaired.................................................. 47
SECTION 10.05 Trustee May Take Action to Effectuate Subordination....... 47
SECTION 10.06 Subrogation............................................... 48
SECTION 10.07 Obligations of Company Unconditional; Reinstatement....... 48
SECTION 10.08 Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice......................................... 49
SECTION 10.09 Right of Trustee to Hold Senior Indebtedness.............. 50
ARTICLE 11
MISCELLANEOUS
SECTION 11.01 Trust Indenture Act Controls.............................. 50
SECTION 11.02 Notices................................................... 50
SECTION 11.03 Communication by Holders with Other Holders............... 51
SECTION 11.04 Certificate and Opinion as to Conditions Precedent........ 51
SECTION 11.05 Statements Required in Certificate or Opinion............. 51
SECTION 11.06 Severability Clause....................................... 52
SECTION 11.07 Rules by Trustee, Paying Agent and Registrar.............. 52
SECTION 11.08 Legal Holidays............................................ 52
SECTION 11.09 Governing Law............................................. 53
SECTION 11.10 No Recourse Against Others................................ 53
SECTION 11.11 Successors................................................ 53
SECTION 11.12 Multiple Original Copies of this Indenture................ 53
SECTION 11.13 No Adverse Interpretation of Other Agreements............. 53
SECTION 11.14 Table of Contents: Headings............................... 53
SECTION 11.15 Benefits of the Indenture................................. 54
PSE&G Indenture
Certain Sections of this Indenture relating to Sections 310 through
318 of the Trust Indenture Act of 1939
Trust Indenture Indenture
Act Section Section
ss. 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
ss.311(a) 7.11
(b) 7.11
(c) Not Applicable
ss.312(a) 2.07
(b) 11.03
(c) 11.03
ss.313(a) 7.06
(b)(1) Not Applicable
(b)(2) 7.06
(c) 7.06; 11.02
(d) 7.06
ss.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
ss.315(a) 7.01(b)
(b) 7.05, 11.02
(c) 7.01(a)
(d) 7.01(c)
(e) 6.11
ss. 316(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) Not Applicable
(a)(last sentence) 2.10
(b) 6.07
(c) 1.05
ss.317(a)(1) 6.08
(a)(2) 6.09
(b) 2.06
ss.318(a) 11.01
(b) Not Applicable
(c) 11.01
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed
to be a part of the Indenture
INDENTURE, dated as of June 1, 1996, 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 Union National Bank, a national banking association duly organized and
existing under the laws of the United States of America, as trustee (the
"Trustee").
WHEREAS, the Company may from time to time
create or establish one or more statutory business trusts for the purpose of
issuing undivided beneficial interests in the assets thereof (the "Trust
Securities") and using the proceeds thereof to acquire the Company's Deferrable
Interest Subordinated Debentures.
WHEREAS, pursuant to an Amended and Restated
Trust Agreement dated as of June 26, 1996 (the "Trust I Agreement") among the
Company, as depositor, First Union National Bank, as Property Trustee (the
"Property Trustee I"), the Delaware Trustee named therein and the Administrative
Trustee named therein, there has been declared and established PSE&G Capital
Trust I, a Delaware business trust ("Trust I").
WHEREAS, Trust I intends to issue its Trust
Securities, including its 8.625% Cumulative Quarterly Income Preferred
Securities, Series A, representing undivided beneficial interests in the assets
of Trust I, having a liquidation amount of $25 per security and having rights
provided therefor in the Trust I Agreement (the "Series A Preferred
Securities").
WHEREAS, the Company has authorized the
issuance of its 8.625% Deferrable Interest Subordinated Debentures, Series A
(the "Series A Debentures") to be purchased by Trust I with the proceeds from
the issuance and sale of its Trust Securities, and to provide therefor, the
Company has duly authorized the execution and delivery of this Indenture.
WHEREAS, all things necessary to make the
securities issued hereunder, 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,
enforceable 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
"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 (i) 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 or (ii) a
certificate signed by the authorized officer or officers to whom the Board of
Directors has delegated its authority, and in each case, 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, participation 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", with respect to any
series of Debentures, means the period during which the Company may elect to
extend the interest payment period on such series of 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 of such series.
"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.
"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 obligation, 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 by 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 applicable 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 or
similar securities) for the payment of which, in either case, the Company is
responsible or liable as obligor, guarantor or otherwise (other than the Series
A Guarantee Agreement or obligations ranking pari passu with the Series A
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.
"Officer" means, with respect to any
corporation, the Chairman of the Board, the Chief Executive Officer, the
President, any Vice President, the Treasurer, any Assistant Treasurer, the
Secretary or any 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.
"Paying Agent" means any Person authorized
by the Company to pay the principal of and premium, if any, and interest on the
Debentures of any series 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 Cumulative
Quarterly Income Preferred Securities of a Trust, representing undivided
beneficial interests in the assets of such Trust.
"Property Trustee I" means First Union
National Bank and its successors and assigns, as property trustee under the
Trust I Agreement.
"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 Debentures of such series entitled to vote,
consent, make a request or exercise any other right associated with such
Debentures.
"Redemption Date", with respect to the
Debentures of any series to be redeemed, means the date specified for the
redemption thereof in accordance with the terms thereof and pursuant to Article
3 of this Indenture.
"Redemption Price", with respect to the
Debentures of any series 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, 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 the Company's Deferrable
Interest Subordinated Debentures issued and outstanding from time to time under
the Indenture dated as of November 1, 1994, as amended and supplemented, between
the Company and First Fidelity Bank, National Association, as trustee, with
which the Debentures are intended to be pari passu, or any Indebtedness between
or among the Company and any Affiliate.
"Series A Debentures" means any of the
Company's 8.625% Deferrable Interest Subordinated Debentures, Series A issued
under this Indenture.
"Series A Guarantee Agreement" means the
Guarantee Agreement dated as of June 26, 1996 from the Company, as guarantor, to
First Union National Bank, as guarantee trustee, with respect to the Series
A Preferred Securities.
"Series A Preferred Securities" means the
undivided beneficial interests in the assets of Trust I, having a liquidation
amount of $25 per security and having rights provided therefor in the Trust I
Agreement.
"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.
"Stated Maturity Date", with respect to any
Debenture, means the date specified for such Debenture as the fixed date on
which the principal of such Debenture is due and payable.
"Subsidiary" means any corporation,
association, partnership, trust 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" means any statutory business trust
created by the Company to issue Trust Securities and to use the proceeds from
the sale thereof to purchase Debentures.
"Trust I" means PSE&G Capital Trust I, a
Delaware statutory business trust created under the Delaware Business Trust Act,
Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. ss. 3801, et seq.
"Trust I Agreement" means the Amended and
Restated Trust Agreement dated as of June 26, 1996, among the Company, as
Depositor, First Union National Bank, as Property Trustee, the Delaware Trustee
named therein and the Administrative Trustee named therein, as the same may be
amended and modified from time to time.
"Trust Officer", when used with respect to
the Trustee, means any Senior Vice President, any Vice President, any Assistant
Vice President, any Trust Officer, or Assistant Trust Officer or any other
officer of the Corporate Trust Department 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 that officer's knowledge of
and familiarity with the particular subject.
"Trust Securities" means the undivided
beneficial interests in the assets of a Trust.
"Trustee" means First Union National Bank,
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.
"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 or Holder.
"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) Each capitalized 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 and Holders of Preferred Securities
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by
Holders or by holders of Preferred Securities may be embodied in and
evidenced by one or more instruments of substantially similar tenor
signed by such Holders or holders of Preferred Securities, as
applicable, in person or by an agent duly appointed in writing 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 or holders of Preferred Securities 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 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 any series
of Debentures which may be authenticated and delivered under this Indenture is
limited to the aggregate liquidation amount of the Trust Securities of
the Trust purchasing such Debentures.
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 any series 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 such Debentures may be listed, or to conform to usage.
Other 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 and the Company's
option, if any, to change the Stated Maturity Date or Dates;
(c) interest rate or method of determination of the interest rate;
(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) the maximum duration of the Extension Period;
(g) Issue Date or Dates and interest accrual provisions;
(h) authorized denominations;
(i) the place or places for the payment of principal (and premium, if any)
and interest;
(j) the aggregate principal amount of Debentures of such series which may
be issued;
(k) the optional and mandatory redemption provisions, if any;
(l) provisions, if any, for any sinking or analogous fund; and
(m) 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
(a) The Series A Debentures shall be designated "Public Service Electric
and Gas Company, 8.625% 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 Series A Debentures shall initially be issued as
global Debentures in accordance with the provisions of Section 2.12 of
this Indenture, with The Depository Trust Company as Depositary. 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.
(b) The aggregate principal amount of Series A Debentures outstanding at
any time may not exceed $214,433,000 except as provided in Section
2.09 hereof. The Series A Debentures shall be authenticated and
delivered upon delivery to the Trustee of items specified in Section
2.04(d) hereof.
(c) The Stated Maturity Date of the Series A Debentures is June 26, 2045.
(d) The interest rate of the Series A Debentures is 8.625% per annum. The
Interest Payment Dates for the Series A Debentures are March 31, June
30, September 30 and December 31 of each year, commencing June 30,
1996. 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 (whether or not a
Business Day) of the last month of each calendar quarter, provided
that if Trust I 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
immediately 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 (as defined in Section 2.03 hereof) 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 payable on such Series A Debenture.
(e) The Series A Debentures shall be issuable only in registered form
without coupons and only in denominations of $25 and any integral
multiple thereof.
(f) The maximum Extension Period for the Series A Debentures shall be 20
consecutive quarters.
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 shall be paid on each Interest Payment Date
therefor to the Holder thereof at the close of business on the Record
Date therefor, such interest to be payable by check mailed to the
address of the Person entitled thereto as such address appears on the
Register; provided however, that (1) 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 and (2) payments made in respect of global
Debentures shall be made in immediately available funds to the
Depositary.
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
Holders 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
Chairman, 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
Debentures;
(2) a Company Order requesting the authentication and delivery of
such Debentures and stating the identity of the Trust and the
aggregate liquidation amount of the Trust Securities to be issued
concurrently with such Debentures;
(3) unless previously delivered, this Indenture or a supplemental
indenture 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 this Indenture or 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 delivery of such 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"), a Paying Agent at whose office the Debentures may be
presented or surrendered for payment, 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 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 and to the Holders 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 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 and to the Holders 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 Registrar) 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) 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 any Trust so long as any
of the Preferred Securities of such Trust 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
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 receipt of a Company Order,
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
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 (i) 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 Depositary 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, (ii) the Company
determines in its sole discretion, that the Debentures of any series shall no
longer be represented by one or more global Debentures and delivers to the
Trustee an Officer's Certificate evidencing such determination or (iii) an Event
of Default occurs and is continuing, then 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 Officer's 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 Persons in whose names such Debentures are
so registered.
Except as provided above, owners 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 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.
(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. If the Debentures of a
series are held by a Trust, the Company shall also deliver a copy
of such Company Order to the Property Trustee for such Trust.
SECTION 3.02 Selection of Debentures to be Redeemed
If less than all the outstanding Debentures
of a series are to be redeemed at any time, the Trustee shall select the
Debentures of such series 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 of such series 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
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 Redemption 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 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) on the
Debentures on or prior to the dates and in the manner provided in
such 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. With respect
to any Debenture, 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 borne by such Debenture, compounded quarterly.
Interest on overdue interest shall accrue from the date such
amounts become 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 of any series are
outstanding, so long as no Event of Default with respect to such
series of Debentures has occurred and is continuing, to defer
payments of interest by extending the interest payment period for
such series of Debentures for the Extension Period, if any, for
such series of Debentures, provided that such Extension Period
shall not extend beyond the Stated Maturity Date or Redemption
Date of any Debenture of such series, 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 such Debentures). Prior to the termination of an
Extension Period, the Company may shorten or may further extend
the interest payment period for such series of Debentures,
provided that such Extension Period together with all such
previous and further extensions may not exceed the maximum
duration of the Extension Period for such series of Debentures or
extend beyond the Stated Maturity Date or Redemption Date of any
Debenture of such series. The Company shall give the Trustee
notice of the Company's election to begin an Extension Period for
any series of Debentures and any shortening or extension thereof
at least one Business Day prior to the date the notice of the
record or payment date of the related distribution on the
Preferred Securities issued by the Trust which is the Holder of
the Debentures of such series or the date payment of interest on
such Debentures is required to be given to any national
securities exchange on which such Preferred Securities or
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. 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 election to begin an Extension
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 and is continuing any Default or Event of
Default, or (iii) if the Company shall be in default with respect to its payment
or other obligations under any 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 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 4.06 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.
SECTION 4.07 Payment of Expenses of Trust I
The Company covenants for the benefit of the
Holders of the Series A Debentures to pay all of the obligations, costs and
expenses of Trust I in accordance with Section 2.03(b) of the Trust I
Agreement and to pay the taxes of Trust I in accordance with Section 2.03(c) of
the Trust I Agreement in order to permit Trust I to make distributions on and
redemptions of the Series A Preferred Securities in accordance with Article IV
of the Trust I 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 with respect to
the Debentures of any series 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 on any Debenture of that series and the default
continues for a period of 30 days; provided, that during an
Extension Period for the Debentures of that series, failure to
pay interest on the Debentures of that series shall not
constitute a Default or Event of Default hereunder, or (b) the
principal of or premium, if any, on any Debentures of that series
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
of that series or this Indenture or in any supplemental indenture
under which the Debentures of that series may have been issued
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 an Event 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 of
the 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 25% in aggregate principal amount of the
Debentures of that series at the time outstanding or, if that series of
Debentures is held by a Trust, the holders of at least 25% in aggregate
liquidation amount of the outstanding Preferred Securities of that Trust provide
a "Notice of Default" to the Company and the Trustee 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 with respect to the
Debentures of any series other than an Event of Default under clause (3) or (4)
of Section 6.01 hereof occurs and is continuing, the Trustee or the Holders of
at least 25% in aggregate principal amount of the Debentures of that series then
outstanding may declare the principal of all the Debentures of that series due
and payable, provided that in the case of a series of Debentures then held by a
Trust, if upon an Event of Default with respect to the Debentures of that series
the Trustee has, or the Holders of at least 25% in aggregate principal amount of
the Debentures of that series have, failed to declare the principal of the
Debentures of that series to be immediately due and payable, the holders of at
least 25% in aggregate liquidation amount of the outstanding Preferred
Securities of that Trust shall have such right by a notice in writing to the
Company and the Trustee. 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 or any Debentureholders.
Upon such an acceleration, such principal, together with all interest accrued
thereon, shall be due and payable immediately.
The Holders of at least a majority in
aggregate principal amount of the Debentures of that series at the time
outstanding, in each case, by notice to the Trustee, may rescind such an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default with respect to such
series of Debentures have been cured or waived except nonpayment of principal or
interest that has become due solely because of acceleration, provided that if
the principal of a series of Debentures has been declared due and payable by the
holders of the Preferred Series of a Trust, no rescission of acceleration will
be effective unless consented to by the holders of at least a majority in
aggregate liquidation amount of the Preferred Securities of that Trust. 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 of the series that is in default, to enforce the
performance of any provision of the Debentures of that series 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, any
Debentureholder or the holders of Preferred Securities 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 with
respect to a series of Debentures has occurred and is continuing, the Holders of
at least a majority in aggregate principal amount of the Debentures of that
series at the time outstanding, or, if that series of Debentures is held by a
Trust, the holders of at least a majority in aggregate liquidation amount of the
Preferred Securities of that Trust, in each case by notice to the Trustee and
the Company, 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 of or premium, if any, or interest on any Debenture of that series.
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
The Holders of at least a majority in
aggregate principal amount of the Debentures of each series affected (with each
such series voting as a class) or, if that series of Debentures is held by a
Trust, the holders of at least a majority in aggregate liquidation amount of the
Preferred Securities of that Trust, 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 of
(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,
no Holder of Debentures or holder of Preferred Securities of the Trust which is
the Holder of that series of Debentures may pursue any remedy with respect
to this Indenture or the Debentures unless:
(1) the Holders of Debentures or the holders of such Preferred
Securities give to the Trustee written notice stating that an
Event of Default with respect to the corresponding Debentures is
continuing;
(2) the Holders of at least 25% in aggregate principal amount of the
Debentures of that series or the holders of at least 25% in
aggregate liquidation amount of such Preferred Securities make a
written request to the Trustee to pursue a remedy;
(3) the Holders of Debentures or the holders of such Preferred
Securities provide to the Trustee reasonable security and
indemnity against any loss, liability or expense satisfactory to
the Trustee;
(4) 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; and
(5) during such 60 day period, the Holders of at least a majority in
aggregate principal amount of the Debentures of that series or
the holders of at least a majority in aggregate liquidation
amount of such Preferred Securities do not give the Trustee a
direction inconsistent with the request.
A Holder of Debentures or a holder of
Preferred Securities may not use this Indenture to prejudice the rights of
another Debentureholder or a holder of Preferred Securities or to obtain a
preference or priority over another Debentureholder or holder of Preferred
Securities.
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 the principal of 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, is absolute and unconditional and such right and the right 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 such
Holder. If the Debentures of a series are then held by a Trust, each holder of
Preferred Securities of such Trust shall have the right to bring suit directly
against the Company for the enforcement of payment to such holder in respect of
Debentures of such series in a principal amount equal to the aggregate
liquidation amount of the Preferred Securities of 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 Holders of Debentures in respect of which or for the
benefit of which such money has been collected for amounts due
and unpaid on such 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 such Debentures; and
THIRD: the balance, if any, to the Company.
Except as otherwise set forth in the
Debentures, 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 of Debentures or
holder of Preferred Securities pursuant to Section 6.07 hereof or a suit by
Holders of Debentures of more than 10% in aggregate principal amount of the
Debentures of any series or, if a series of Debentures is held by a Trust, the
holders of more than 10% in aggregate liquidation amount of the Preferred
Securities of that Trust.
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 occurs and is continuing with respect to
the Debentures of any series, the Trustee shall exercise the
rights and powers vested in it by this Indenture with respect to
that series 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 with respect
to the Debentures of any series, (i) the Trustee need perform
only those duties with respect to that series that are
specifically set forth in this Indenture or the TIA 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 pursuant to this Indenture,
unless such Holders 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 and the Trustee's Statement of
Eligibility on Form T-1), 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 with
respect to the Debentures of any series and if it is known to the Trustee, the
Trustee shall mail to each Holder of a Debenture of that series 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 Holders of the Debentures
of that series. 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 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 May 31, beginning
with the May 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 May
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 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 any
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
willful misconduct 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
with respect to the Debentures of a series, the Trustee shall have a claim and
lien prior to the Debentures of that series 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
or 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 Holders of at least a majority in aggregate principal amount of the
Debentures at the time outstanding 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 to act.
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 or the Holders of at least 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) and
the Trustee's Statement of Eligibility on Form T-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 of such series 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 of
such series 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 to the
effect that the Holders of the Debentures of such series 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 an
Opinion of Counsel to the effect that (A) the deposit shall not
result in the Company, the Trustee or, if the Debentures of such
series are held by a Trust, such 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 the
Holders of the Debentures of such series have the sole beneficial
interest or that the Holders of the Debentures of such series
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 of such series, (2) the
replacement of apparently mutilated, defaced, destroyed, lost or stolen
Debentures of such series, (3) the rights of the Holders of the Debentures of
such series to receive payments of the principal thereof and premium, if any,
and interest thereon, (4) the rights of the Holders of the Debentures of such
series 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 of such series, (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 of
the Debentures of the series 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 the Debentures of any series 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
Holders of such Debentures 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, may amend or
supplement this Indenture:
(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 any 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 in any manner not permitted by Section 9.01 or may waive future
compliance by the Company with any provisions of this Indenture with the consent
of the Holders of at least a majority in aggregate principal amount of the
Debentures of each series affected thereby. Such an amendment or waiver may not,
without the consent of each Holder of the Debentures affected thereby:
(1) reduce the principal amount of such Debentures;
(2) reduce the principal amount of such Debentures the Holders of
which must consent to an amendment of this Indenture or a waiver;
(3) change the stated maturity of the principal of or the interest on
or rate of interest of such Debentures;
(4) change adversely to the Holders the redemption provisions of
Article 3 hereof;
(5) change the currency in respect of which the payments on such
Debentures are to be made;
(6) 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; or
(7) change Section 6.07 hereof;
provided that, in the case of the outstanding Debentures of a series then held
by a Trust, no such amendment shall be made that adversely affects the holders
of the Preferred Securities of that Trust, and no waiver of any Event of Default
with respect to the Debentures of that series or compliance with any covenant
under this Indenture shall be effective, without the prior consent of the
holders of at least a majority of the aggregate liquidation amount of the
outstanding Preferred Securities of that Trust or the holder of each such
Preferred Security, as applicable.
A supplemental indenture that changes or
eliminates any covenant or other provision of this Indenture that has expressly
been included solely for the benefit of one or more particular series of
Debentures, or which modifies the rights of the Holders of Debentures of such
series with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Debentures of any other
series.
It shall not be necessary for the consent of
the Holders of Debentures or holders of Preferred Securities 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 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 such 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 such Debentures then outstanding has been obtained and not revoked.
After an amendment, waiver or action becomes effective, it shall bind every
Holder of the Debentures of the related series, 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 Persons 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,
only Holders of Debentures or holders of Preferred Securities, as applicable, on
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 such 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 of the related series
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 of the related series
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 and, by their acceptance thereof, the Holders of the Debentures
(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 or the holders of Preferred Securities
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, any 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, from holders of
Senior Indebtedness or from any trustee, representative or agent
therefor, or (ii) any other default affecting Senior Indebtedness
as a result of which the maturity of Senior Indebtedness has been
accelerated and the Trustee has received written notice from the
Company, from holders of Senior Indebtedness or from any trustee,
representative or agent therefor, 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 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 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 or any Holder of Debentures or
holder of Preferred Securities, as applicable, 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 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, representative 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 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 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 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, representative
or agent on behalf of such holder) to establish that such notice has been given
by a holder of such Senior Indebtedness or a trustee, representative or agent 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, request or other communication
required or permitted to be given hereunder shall be in writing and delivered,
telecopied 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
Facsimile No.: 201-596-6309
Attention: Treasurer
if to the Trustee:
First Union National Bank
765 Broad Street
Newark, New Jersey 07101
Facsimile No.: 201-430-4963
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, such Person
has made such examination or investigation as is necessary to
enable such Person 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 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 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 otherwise expressly provided
herein with respect to holders of Senior Indebtedness and holders of Preferred
Securities, 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 and the Holders of the Debentures, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
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 UNION NATIONAL BANK, as Trustee
By: MELISSA MATTHEWS
----------------
Name: Melissa Matthews
Title: Vice President
Exhibit A
PUBLIC SERVICE ELECTRIC AND GAS COMPANY
8.625% 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 PSE&G Capital Trust I or registered assigns, the
principal sum of $214,433,000 Dollars on June 26, 2045, and to pay interest on
said principal sum from June 26, 1996 or from the most recent Interest Payment
Date (as defined below) to which interest has been paid or duly provided for,
quarterly in arrears on March 31, June 30, September 30 and December 31,
commencing June 30, 1996 (each, an "Interest Payment Date"), at the rate of
8.625% per annum 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, 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. 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 (whether or not a Business Day) of the last month of
each calendar quarter, provided that if all of the Series A Debentures (as
defined below) are then held by PSE&G Capital Trust I (the "Trust") 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 immediately preceding such
Interest Payment Date. Any such interest installment not punctually paid or duly
provided for shall forthwith cease to be payable to the Holder 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 Holders of the Series A Debentures not less than 7
calendar 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 Holder hereof at the address shown in the Register or, at
the option of the Holder hereof, to such other place in the United States of
America as the Holder hereof shall designate to the Trustee in writing. At the
request of a 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 office of First Union National Bank, 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 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 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 Holder of this Debenture, 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 $214,433,000, issued under and pursuant to an Indenture
dated as June 1, 1996 (the "Indenture") executed and delivered between the
Company and First Union National Bank, as trustee (the "Trustee"). The Series A
Debentures are initially being issued to the Trust, to be held on behalf of the
Trust by its property trustee (the "Property Trustee"). Concurrently with the
issuance of the Series A Debentures, the Trust is issuing its trust securities,
representing undivided beneficial interests in the assets of the Trust and
having an aggregate liquidation amount equal to the principal amount of the
Series A Debentures, including the Trust's 8.625% Cumulative Quarterly Income
Preferred Securities, Series A (the "Preferred Securities"). By the terms of the
Indenture, 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. 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 Holders of the Debentures. 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.
At the option of the Company, the Series A
Debentures are redeemable prior to maturity (i) at any time on or after June 26,
2001, in whole or in part, and (ii) if a Special 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. A "Special Event"
shall mean either a "Tax Event" or an "Investment Company Event." "Tax Event"
shall mean that the Company shall have received an opinion of counsel (which may
be regular counsel to the Company or an Affiliate, but not an employee thereof
and which must be acceptable to the Property Trustee of the Trust) 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 Trust is subject to United States Federal income tax with respect to
interest received on the Debentures, (ii) interest payable by the Company to the
Trust on the Series A Debentures will not be deductible for United States
Federal income tax purposes or (iii) the Trust is subject to more than a de
minimis amount of other taxes, duties, assessments or other governmental
charges. "Investment Company Event" shall mean the occurrence of a change in law
or regulation or a change in interpretation or application of law or regulation
by any legislative body, court, governmental agency or regulatory authority (a
"Change in 1940 Act Law") to the effect that the Trust is or will be considered
an "investment company" that is required to be registered under the Investment
Company Act of 1940, as amended, which Change in 1940 Act Law becomes effective
on or after the date of original issuance of the Preferred Securities.
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
Series A Debentures to be redeemed.
In the event of redemption of this Debenture
in part only, a new Series A Debenture or Debentures 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 with respect to
the Series A Debentures occurs and is continuing, the principal of and interest
on the Series A Debentures may (and, in certain circumstances, shall) 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 may waive future compliance by the Company with any
provisions of the Indenture, with the consent of the Holders of at least a
majority in aggregate principal amount of the Debentures of each series affected
thereby, provided that if the Series A Debentures are held by the Trust, no such
amendment or waiver that adversely affects the holders of the Preferred
Securities shall be effective without the prior consent of the holders of at
least a majority in aggregate liquidation amount of the outstanding Preferred
Securities. Subject to certain exceptions in the Indenture, without the consent
of any Debentureholder, the Company and the Trustee may amend the Indenture 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 no Event of Default with respect
to the Series A Debentures has 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 Series A Debentures for up to 20 consecutive quarters (the
"Extension Period"), provided that no Extension Period shall extend beyond the
Stated Maturity Date or Redemption Date of any Series A Debenture. At the end of
the Extension Period, the Company shall pay all interest then accrued and unpaid
(together with interest thereon at the rate specified for the Series A
Debentures, compounded quarterly, to the extent that payment of such interest is
enforceable under applicable law). During such Extension 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 Extension Period, the Company may further extend such
Extension Period, provided that such Extension Period, together with all such
previous and further extensions, shall not exceed 20 consecutive quarters and
shall not extend beyond the Stated Maturity Date or Redemption Date of any
Series A Debenture. At the termination of any such Extension Period and upon the
payment of all amounts then due, the Company may elect to begin a new Extension
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 Holder surrendering the same.
As provided in the Indenture and subject to
certain limitations therein set forth, this Debenture is transferable by the
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 inform satisfactory to the Registrar duly executed by
the 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 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.
This Debenture shall not be valid until an
authorized signatory 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: ROBERT C. MURRAY
----------------
Name: Robert C. Murray
Title: Senior Vice President and
Chief Financial Officer
[SEAL]
Attest:
JOHN A. ANDERSON, JR.
- -----------------------
(Assistant) Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debentures, of the series designated, referred to in the
within-mentioned Indenture.
FIRST UNION NATIONAL BANK, as Trustee
By: MELISSA MATTHEWS
----------------
Authorized Signatory
Dated: June 26, 1996
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 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: ____________________