PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
and
FIRST UNION NATIONAL BANK, as Trustee
INDENTURE
Dated as of January 1, 1998
Providing for the Issuance of
Deferrable Interest Subordinated Debentures in Series
including
7.44% Deferrable Interest Subordinated Debentures, Series A
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.............................................. 2
SECTION 1.02 Other Definitions........................................ 6
SECTION 1.03 Incorporation by Reference of Trust Indenture Act........ 7
SECTION 1.04 Rules of Construction.................................... 7
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................ 10
SECTION 2.03 Payment of Principal and Interest........................ 11
SECTION 2.04 Execution, Authentication and Delivery................... 13
SECTION 2.05 Registrar and Paying Agent............................... 14
SECTION 2.06 Paying Agent to Hold Money in Trust...................... 15
SECTION 2.07 Debentureholder Lists.................................... 15
SECTION 2.08 Transfer and Exchange.................................... 16
SECTION 2.09 Replacement Debentures................................... 16
SECTION 2.10 Outstanding Debentures; Determinations of Holders' Action 17
SECTION 2.11 Temporary Debentures..................................... 18
SECTION 2.12 Book-Entry System........................................ 18
SECTION 2.13 Cancellation............................................. 19
ARTICLE 3
REDEMPTION
SECTION 3.01 Redemption: Notice to Trustee............................ 20
SECTION 3.02 Selection of Debentures to be Redeemed................... 20
SECTION 3.03 Notice of Redemption..................................... 20
SECTION 3.04 Effect of Notice of Redemption........................... 21
SECTION 3.05 Deposit of Redemption Price.............................. 21
SECTION 3.06 Debentures Redeemed in Part.............................. 22
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Debentures.................................... 22
SECTION 4.02 Prohibition Against Dividends............................ 23
SECTION 4.03 SEC Reports.............................................. 23
SECTION 4.04 Compliance Certificates.................................. 23
SECTION 4.05 Further Instruments and Acts............................. 24
SECTION 4.06 Payments for Consents.................................... 24
SECTION 4.07 Payment of Expenses of Trust I........................... 24
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 When the Company May Merge............................... 24
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default........................................ 25
SECTION 6.02 Acceleration............................................. 26
SECTION 6.03 Other Remedies........................................... 27
SECTION 6.04 Waiver of Past Defaults.................................. 27
SECTION 6.05 Control by Majority...................................... 28
SECTION 6.06 Limitation on Suits...................................... 28
SECTION 6.07 Rights of Holders to Receive Payment..................... 29
SECTION 6.08 Collection Suit by the Trustee........................... 29
SECTION 6.09 The Trustee May File Proofs of Claim..................... 29
SECTION 6.10 Priorities............................................... 30
SECTION 6.11 Undertaking for Costs.................................... 30
SECTION 6.12 Waiver of Stay........................................... 30
ARTICLE 7
THE TRUSTEE
SECTION 7.01 Duties of the Trustee.................................... 31
SECTION 7.02 Rights of the Trustee.................................... 32
SECTION 7.03 Individual Rights of the Trustee......................... 32
SECTION 7.04 The Trustee's Disclaimer................................. 32
SECTION 7.05 Notice of Defaults....................................... 33
SECTION 7.06 Reports by Trustee to Holders............................ 33
SECTION 7.07 Compensation and Indemnity............................... 33
SECTION 7.08 Replacement of Trustee................................... 34
SECTION 7.09 Successor Trustee by Merger.............................. 35
SECTION 7.10 Eligibility: Disqualification............................ 35
SECTION 7.11 Preferential Collection of Claims Against the Company.... 35
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE;
DEFEASANCE OF CERTAIN OBLIGATIONS; UNCLAIMED MONEYS
SECTION 8.01 Satisfaction and Discharge of Indenture.................. 35
SECTION 8.02 Application by Trustee of Funds Deposited for Payment of
Debentures............................................... 37
SECTION 8.03 Repayment of Moneys Held by Paying Agent................. 37
SECTION 8.04 Return of Moneys Held by the Trustee and Paying Agent
Unclaimed for Three Years................................ 37
ARTICLE 9
AMENDMENTS
SECTION 9.01 Without Consent of Holders............................... 37
SECTION 9.02 With Consent of Holders.................................. 38
SECTION 9.03 Compliance with Trust Indenture Act...................... 39
SECTION 9.04 Revocation and Effect of Consents; Waivers and Actions... 39
SECTION 9.05 Notation on or Exchange of Debentures.................... 40
SECTION 9.06 Trustee to Execute Supplemental Indentures............... 40
SECTION 9.07 Effect of Supplemental Indentures........................ 40
ARTICLE 10
SUBORDINATION
SECTION 10.01 Debentures Subordinated to Senior Indebtedness........... 40
SECTION 10.02 Priority and Payment of Proceeds in Certain Events:
Remedies Standstill...................................... 41
SECTION 10.03 Payments which May Be Made Prior to Notice............... 42
SECTION 10.04 Rights of Holders of Senior Indebtedness Not to Be
Impaired................................................. 42
SECTION 10.05 Trustee May Take Action to Effectuate Subordination...... 42
SECTION 10.06 Subrogation.............................................. 42
SECTION 10.07 Obligations of Company Unconditional; Reinstatement...... 43
SECTION 10.08 Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice........................................ 43
SECTION 10.09 Right of Trustee to Hold Senior Indebtedness............. 44
ARTICLE 11
MISCELLANEOUS
SECTION 11.01 Trust Indenture Act Controls............................. 44
SECTION 11.02 Notices.................................................. 45
SECTION 11.03 Communication by Holders with Other Holders.............. 45
SECTION 11.04 Certificate and Opinion as to Conditions Precedent....... 46
SECTION 11.05 Statements Required in Certificate or Opinion............ 46
SECTION 11.06 Severability Clause...................................... 46
SECTION 11.07 Rules by Trustee, Paying Agent and Registrar............. 47
SECTION 11.08 Legal Holidays........................................... 47
SECTION 11.09 Governing Law............................................ 47
SECTION 11.10 No Recourse Against Others............................... 47
SECTION 11.11 Successors............................................... 47
SECTION 11.12 Multiple Original Copies of this Indenture............... 47
SECTION 11.13 No Adverse Interpretation of Other Agreements............ 48
SECTION 11.14 Table of Contents; Headings.............................. 48
SECTION 11.15 Benefits of the Indenture................................ 48
Enterprise 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 January 1, 1998 by and between
Public Service Enterprise Group Incorporated, 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 January 20, 1998 (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 Enterprise
Capital Trust I, a Delaware business trust ("Trust I").
WHEREAS, Trust I intends to issue its Trust Securities,
including its 7.44% Trust Originated Preferred Securities 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
7.44% 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 Enterprise Group
Incorporated, 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 Trust Originated 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 any Indebtedness between or among the Company and
any Affiliate.
"Series A Debentures" means any of the Company's 7.44%
Deferrable Interest Subordinated Debentures, Series A issued under this
Indenture.
"Series A Guarantee Agreement" means the Guarantee
Agreement issued by the Company with respect to the Series A Preferred
Securities, in which the Company irrevocably and unconditionally agrees to pay
the Guarantee Payments (as defined in the Series A Guarantee Agreement) to the
holders of 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 Enterprise 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 January 20, 1998 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 Enterprise Group Incorporated, 7.44% 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 $231,958,775 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
March 31, 2047.
(d) The interest rate of the Series A Debentures is 7.44%
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 March 31, 1998.
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 as 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 of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, the Company shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. Thereupon the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Debentureholders.
Subject to payment of all amounts owing to the Trustee under Section 7.07 hereof
and subject further to its lien under Section 7.07, the retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee.
If a successor Trustee does not take office within 30 days after the retiring
Trustee resigns or is removed, the Company 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, at the time of such payment, there exists (i) a default in the
payment of all or any portion of any Senior Indebtedness and the Trustee has
received written notice thereof from the Company, 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 Enterprise Group Incorporated
80 Park Plaza
P.O. Box 1171
Newark, New Jersey 07101
Facsimile No.: (973) 596-6309
Attention: Treasurer
if to the Trustee:
First Union National Bank
765 Broad Street
Newark, New Jersey 07101
Facsimile No.: (973) 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 ENTERPRISE
GROUP INCORPORATED
By: FRED F. SAUNDERS
Name: Fred F. Saunders
Title: Assistant Treasurer
FIRST UNION NATIONAL BANK,
as Trustee
By: MELISSA MATTHEWS
Name: Melissa Matthews
Title: Vice President
Exhibit A
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
7.44% Deferrable Interest Subordinated Debenture,
Series A
No. 1
Public Service Enterprise Group Incorporated, 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 Enterprise Capital Trust I or registered assigns, the principal sum of
$231,958,775 Dollars on March 31, 2047 and to pay interest on said principal sum
from January 20, 1998 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 March 31,
1998 (each, an "Interest Payment Date"), at the rate of 7.44% 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. 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 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 Enterprise
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 Holders on such Regular Record Date, and may be paid
to the Person in whose name this Debenture is registered at the close of
business on a Special Record Date to be fixed by the Trustee (as defined below)
for the payment of such defaulted interest, notice whereof shall be given to the
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 $231,958,775, issued under and pursuant to an Indenture dated as January 1,
1998 (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 7.44% Trust Originated Preferred Securities
(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 March 31, 2003 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 in form 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 ENTERPRISE
GROUP INCORPORATED
By: FRED F. SAUNDERS
[SEAL] Name: Fred F. Saunders
Title: Assistant Treasurer
Attest:
PATRICK M. BURKE
-----------------------
(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: January 20, 1998
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: ____________________